Supreme Court Protects Lawyer-Client Confidentiality

Source : Indian Express 

Introduction 

On October 31, the Supreme Court delivered a significant judgment protecting the sanctity of lawyer-client communications. The three-judge bench headed by Chief Justice B R Gavai, along with Justices K Vinod Chandran and N V Anjaria, issued clear directions preventing investigating agencies from summoning lawyers merely to extract information shared by their clients. This suo motu case, taken up in June 2024, addresses a fundamental question: can lawyers be forced to breach professional confidentiality in the name of investigation? The court's answer was an emphatic "no," subject to specific exceptions. 

What was the Background of the Case ? 

• The case originated from a Special Leave Petition involving a loan dispute. An advocate representing an accused person in a bail application was summoned by the investigating officer. When the lawyer challenged this summons, the Gujarat High Court upheld it, ruling that the lawyer's refusal to cooperate was stalling the investigation. The High Court found no violation of fundamental rights and concluded that the officer had acted within statutory powers. 
• The issue gained national attention when the Enforcement Directorate summoned two senior Supreme Court advocates, Arvind Datar and Pratap Venugopal, in connection with their professional work related to Care Health Insurance Ltd's ESOP allotment case. Although the agency later withdrew these summons, the incident sparked widespread condemnation from the Supreme Court Bar Association, the Supreme Court Advocates on Record Association, and other legal bodies. They argued that such summons undermined the very foundation of legal representation and client confidentiality. 
• The Supreme Court framed two critical questions for consideration: First, whether a lawyer acting solely in professional capacity can be summoned by investigating agencies. Second, if a lawyer's role extends beyond professional duties, whether such summons should be subject to judicial oversight. 

What was the Court's Directions? 

• The Supreme Court struck a careful balance between protecting attorney-client privilege and ensuring that investigations are not obstructed. The court ruled that lawyers cannot be summoned merely to reveal communications shared by their clients, except in three limited circumstances: when the client consents, when the communication relates to illegal purposes, or when the lawyer witnesses criminal activity during employment. 
• The court established that if an investigating officer believes an exception applies, the summons must clearly spell out the specific facts justifying it. Critically, such summons must have written approval from a superior officer not below the rank of Superintendent of Police. This safeguard prevents arbitrary use of summons power. 
• The court rejected the Bar's proposal for a special two-tier screening mechanism involving magistrate approval and review by legal peer committees. The court held that such procedures would create an unjustified classification violating Article 14 of the Constitution, which guarantees equality before law. Instead, the court clarified that existing judicial oversight under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) is sufficient, allowing any person, including advocates, to challenge summons before a court. 
• Regarding physical evidence, the court drew a clear distinction between communications and documents or devices. While Section 132 protects communications, investigating officers can seek production of documents or devices under Section 94 of BNSS, but this must be done through the court, not directly. Both the lawyer and client must be notified beforehand, allowing them to raise objections. Any examination must occur under judicial supervision, in their presence, with access limited to relevant material only. Information relating to other clients must remain sealed and protected. 
• The court also addressed the status of in-house legal counsels, clarifying that they do not enjoy the same privilege as independent advocates under Section 132, since they are salaried employees whose employment relationship may align with business interests. However, they retain limited protection preventing disclosure of confidential communications made to them as legal advisers, though this doesn't cover internal exchanges with their employers. 

What are the Legal Provisions Referenced ? 

• The judgment extensively relies on Section 132 of the Bharatiya Sakshya Adhiniyam (BSA), 2023, which replaced the Indian Evidence Act, 1872. This section establishes the privilege of confidential communications between legal advisers and clients. 
• The court also referenced Article 19(1)(g) and Article 21 of the Constitution, which protect the right to practice any profession and the right to life and personal liberty. The judgment noted that Section 132 echoes the constitutional safeguard against self-incrimination under Article 20(3). 
• Section 528 of the BNSS was highlighted as providing adequate judicial oversight, allowing challenges to summons. Section 94 of the BNSS governs the production of documents and devices through court orders rather than direct summons. 
• Article 14 of the Constitution, guaranteeing equality before law, was discussed in the context of rejecting special procedures that would create unjustified classifications between advocates and other citizens. 

What Communications Are Privileged? 

• Under Section 132 of the BSA, communications between legal advisers and clients are privileged and cannot be disclosed to third parties. This privilege covers oral, written, and electronic communications and continues even after the employment relationship has ceased. 
• The privilege exists to protect the client's right to effective legal representation, not to provide immunity to lawyers from lawful investigation. It is designed to ensure that those involved in administering justice are not victimized or bullied into revealing client information merely because they represented someone facing criminal allegations. 
• However, three exceptions exist: when the client expressly consents to disclosure; when the communication pertains to illegal purposes or furthering a crime; and when the advocate observes criminal activity being carried out during employment. The court emphasized that privilege protects communications but not the physical or digital materials themselves, which may be subject to production through proper judicial channels.