NEW DELHI: The Supreme Court, while hearing a Suo Motu Cognisance (SMC) case, on July 29, said that if a person is merely acting as a lawyer, then he should not be summoned by probe agencies for rendering a legal opinion or for representing a client who is under investigation.
The top court had on July 8 initiated SMC, after it took note of the fact that the ED summoned senior lawyers Arvind Datar and Pratap Venugopal for their offering of legal opinions or representation of parties during the investigation of cases to their respective clients.
During the course of the hearing on July 29, the SC, however, clarified that if any lawyer "is assisting the client in the crime", then he can be summoned.
The two-judge bench of the top court, headed by Chief Justice B R Gavai and Justice K Vinod Chandran, made these observations while hearing the SMC over summoning of advocates by probe agencies for offering legal advice or representing clients during investigations.
At the outset, Vikas Singh, senior lawyer and former Additional Solicitor General (ASG) appearing for Supreme Court Bar Association (SCBA) and Vipin Nair, lawyer for the Supreme Court Advocates-on-Record Association (SCAoRA), objected to the step taken by the ED in summoning lawyers.
"There can be a chilling effect on the legal profession, if lawyers can be summoned arbitrarily. If lawyers can be routinely summoned for advising clients, no one will dare provide counsel in sensitive criminal cases,” Singh said.
He stressed that here should be adequate safeguards similar to those followed by the CBI should be implemented. Singh suggested the court that the summoning order should come from the Superintendent of Police of a district and then be scrutinised by a judicial magistrate before issuance.
Echoing similar voices with Singh, Nair expressed deep concern over the issuance of summons under Section 50 of the Prevention of Money Laundering Act, 2002, highlighting that such actions constitute an impermissible transgression of the sacrosanct principle of lawyer-client privilege. "This pose a serious threat to the autonomy, independence, and fearless functioning of the Bar," Nair stated.
SCAORA urged the top court to examine the legality and propriety of such actions, safeguard the constitutional and professional protections afforded to advocates, and lay down appropriate guidelines to prevent any further erosion of the independence of the Bar and misuse of executive power.
On the other hand, the Solicitor General Tushar Mehta, appearing for the ED, agreed with the court's saying that lawyers should not be summoned merely for offering legal advice.
"The privilege of communication between a lawyer and a client must be respected. The profession itself is protected under the proviso,” Mehta pointed out.
After being apprised about the laws on summoning of lawyers, the top court directed that written suggestions submitted by SCBA and SCAoRA be forwarded to the SG and the Attorney General within three days, and fixed the matter for further hearing to August 12, when the Centre will respond.
Earlier on July 21, the top court during the hearing of this SMC case, observed that the Enforcement Directorate is "crossing all limits", about the issue of probe agencies summoning advocates who offer legal opinions or represent parties during the investigation of cases.
While expressing serious concern over the agency, ED, summoning advocates for offering legal advice or representing clients during investigations, the top court had said, it will pass certain guidelines on the matter.
The scathing remarks against the ED came from an apex court bench, as it heard an SMC hearing initiated by it on July 8 to hear the summoning of lawyers who offer legal opinions or represent parties during the investigation of cases.
The top court enforced the SMC in recent cases in which two senior lawyers -- Arvind Datar and Pratap Venugopal -- were summoned for reportedly giving legal advice or opinion in a case. However, after a lot of hue and cry by the legal fraternity, the ED withdrew its summons to these two lawyers.
Nair had also earlier written to the CJI Gavai on the "deeply disquieting development" having "serious ramifications for the independence of the legal profession and the foundational principle of lawyer-client confidentiality".
After the unfortunate incident, Venugopal, talking to TNIE, said the ED action of summoning him was completely illegal, unconstitutional, unwarranted.
"It is sad and unforunate. The action of issuing summons to Advocates is an alarming practice and besides being wholly contrary to the provisions of Sec 132 of the Bharatiya Sakshya Adhiniyam (BSA) 2023, seeks to intimidate Advocates from advising clients and further identifies Advocates with their clients, which, contrary to well-established principles," Venugopal had said.
SCAORA said that Venugopal is “a widely respected member of the legal fraternity,” whose professional record and sincerity led to his designation as a Senior Advocate earlier this year.
"These actions, by the ED, we believe, amount to an impermissible transgression of the sacrosanct lawyer-client privilege,” the letter continues, warning that such coercive measures could have a chilling effect on the legal community," the SCAORA said.
Requesting the Supreme Court to act decisively, the Association urged the Court to examine the legality and propriety of such summonses to legal professionals. "Safeguard the constitutional and professional protections afforded to advocates. Lay down guidelines to prevent further erosion of lawyer-client privilege," it said.
The SCAORA further opined that the role of an advocate, in offering legal advice, is both privileged and protected. Interference by investigative agencies strikes at the heart of the rule of law.