NEW DELHI: The Supreme Court is scheduled to pronounce its order on Friday in a suo motu cognizance (SMC) case in connection with the issue as to whether the probe agencies can summon lawyers who offer legal opinions or represent parties during the investigation of cases.
The three-judge bench of the top court, headed by the Chief Justice B R Gavai and Justices K Vinod Chandran and N V Anjaria, who reserved the order on August 12 on the SMC issue -- after hearing extensively from the Solicitor General Tushar Mehta for the ED, and lawyers and lawyers connected to the case -- will pronounce the order on October 31, Friday.
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 represent parties during the investigation of cases to their respective clients. It had earlier observed that it was the custodian of the entire citizens of the country.
However the ED had later withdrawn its summons to these two lawyers
Mehta told the apex court that lawyers form part of the administration of justice and deserve protection in that role. He requested the court to frame clear guidelines to ensure balance legal safeguards with the "ground realities" of the country. "A lawyer should never be called by investigating agencies merely for providing professional advice," he had told the court.
The court also clarified that this protection is not absolute if a lawyer deviates from professional duties to advise on tampering fabricating evidence, such immunity would not apply. "We cannot create two classes of lawyers," the bench remarked, while noting the need for a uniform legal set of principles in this regard.
Vikas Singh, senior lawyer and former Additional Solicitor General (ASG) appearing for the 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 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 had said.
He stressed that here should be adequate safeguards similar to those followed by the CBI should be implemented. Singh suggested the apex 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 on 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, Mehta, 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 had pointed out.
Earlier on July 21, the top court during the hearing of this SMC case, had observed that the Enforcement Directorate is "crossing all limits", with regard to the issue of probe agencies summoning advocates who offer legal opinions or represent parties during the investigation of cases.
While expressing its 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.
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".
