The Supreme Court of India has registered a suo motu cognisance (criminal) in response to the summoning of advocates who provide legal advice or represent clients during the course of investigations. A bench of the apex court, headed by Chief Justice of India BR Gavai, is expected to hear the matter on Monday, July 14, as the Court reopens following a 50-day summer vacation.
It is pertinent to note that the power of suo motu cognisance (SMC) is derived from Articles 32 and 226 of the Constitution, which deal with the enforcement of fundamental rights, and Article 142, which grants the Supreme Court broad and extraordinary powers.
SMC refers to the Court initiating proceedings on its own, without a formal petition or complaint being filed.
This particular action follows recent events where two senior advocates Arvind Datar and Pratap Venugopal were reportedly summoned by the Enforcement Directorate (ED) for providing legal advice in an ongoing investigation.
Following widespread concern and protest from the legal fraternity, the ED subsequently withdrew its summons to both lawyers.
Vipin Nair, President of the Supreme Court Advocates-on-Record Association (SCAORA), had earlier written to CJI Gavai describing the development as "deeply disquieting", with "serious ramifications for the independence of the legal profession and the foundational principle of lawyer-client confidentiality".
Commenting on the issue, Venugopal told The New Indian Express that the ED’s move was “completely illegal, unconstitutional, and unwarranted.”
“It is sad and unfortunate. The act of issuing summons to advocates is an alarming practice. It is wholly contrary to Section 132 of the Bharatiya Sakshya Adhiniyam (BSA) 2023, and appears to intimidate advocates for advising clients. It wrongly identifies advocates with their clients, which goes against well-established legal principles,” he said.
SCAORA emphasised that Venugopal is “a widely respected member of the legal fraternity”, whose professional integrity was recognised when he was designated 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,” SCAORA stated, warning that such coercive measures could have a chilling effect on the entire legal community.
The Association urged the Supreme Court to act decisively, examine the legality and propriety of such summons to legal professionals, and “safeguard the constitutional and professional protections afforded to advocates.” It also called upon the Court to lay down guidelines to prevent further erosion of lawyer-client confidentiality.
SCAORA further stated that the role of an advocate in rendering legal advice is both privileged and protected, and any interference by investigative agencies strikes at the core of the rule of law.
The letter concluded with an appeal to the Supreme Court to uphold the independence of the Bar and curb any misuse of executive power that could undermine the dignity of the legal profession.
Arvind Datar, similarly, had been summoned by the ED in connection with advice he had given to a client during an ongoing investigation.