Supreme Court Reaffirms Attorney–Client Privilege: Balancing State Power And Bar Independence Under The BSA And BNSS

1. Introduction

"A person cannot walk out of his counsel's office with a defaced privilege, which he had intact, when he walked into it¹. " In a defining observation, the Supreme Court of India, in In Re: Summoning Advocates Who Give Legal Opinion, reaffirmed a foundational tenet of the legal system, viz., the confidentiality that binds a lawyer to their client. Confronted with the growing tendency of investigative agencies to summon advocates for merely performing their professional duties, the Court intervened decisively to restore the balance between the authority of the State and the autonomy and independence of the legal profession.

The decision assumes significance beyond the confines of procedural law, holding that the power to summon cannot become a tool to intimidate or interrogate the Bar. Reiterating that the privilege embodied in Section 132 (Professional Communications) of the Bharatiya Sakshya Adhiniyam, 2023 ("BSA"), is not just statutory but foundational to the right to fair legal representation, the Court articulated definitive safeguards against investigative overreach. By introducing the requirement for supervisory approval and judicial oversight, the judgement fortifies the protection of client confidentiality and advocate–client relationship even in the digital age.

2. Evolution of Attorney–Client Privilege

The modern notion of attorney–client privilege finds its origin in English legal practice. Early courts anchored the principle not in the client's rights but in the lawyer's sense of honour and professional duty, which scholars later characterised as an oath-based "attorney exemption". By the late 18th and early 19th centuries, the underlying rationale evolved toward the client's need for securing candid legal advice, a shift crystallised in decisions such as Greenough v. Gaskell², which framed privilege as a protection for the client rather than a perk of the profession.

Throughout the 20th century, common-law courts repeatedly underlined that attorney–client privilege is foundational to the administration of justice, rather than a mere evidentiary rule. The House of Lords, in R v Derby Magistrates' Court, ex p. B³, emphasised that every individual must be able to consult a lawyer in complete confidence, while the U.S. Supreme Court in Upjohn⁴ confirmed that communications between company's counsel and all corporate employees may be protected by the attorney-client privilege.

Therefore, the debate today is less about the existence of the privilege and more on its scope and application, particularly in corporate, regulatory, and digital contexts. India codified these common-law principles at an early stage through Sections 126-129 of the Indian Evidence Act, 1872 ("Evidence Act"), which protect confidential professional communications, affirm that the privilege belongs to the client, and address issues of waiver and related exceptions. This framework has been carried forward and modernised under the Bharatiya Sakshya Adhiniyam, 2023, notably through Sections 132 to 134, which continue to prohibit the disclosure of privileged communications, subject to narrow exceptions.

Complementing this statutory regime, the Standards of Professional Conduct and Etiquette, framed by the Bar Council of India under the Advocates Act, 1961, impose ethical duties upon the member of the Bar thereby reinforcing the obligation of confidentiality. Together, this statutory and regulatory framework anchors attorney–client privilege both as a legal right and a professional obligation under Indian law.

3. Genesis of the Suo Motu Proceedings

The Supreme Court's suo motu intervention originated from a series of incidents that raised serious concerns about investigative overreach and its potential impact on the independence of the Bar. One such trigger was the Enforcement Directorate's ("ED") decision to issue summons to two Senior Advocates, Mr. Arvind Datar and Mr. Pratap Venugopal, in connection with ongoing investigations. The action elicited strong opposition from the legal fraternity, prompting the ED to withdraw the summons and issue a circular stating that no advocate shall be summoned in connection with any investigation without obtaining the prior approval of the Director, ED.

Soon thereafter, a Bench comprising Justice K.V. Viswanathan and Justice N.K. Singh expressed concerns over an emerging pattern of police and investigative agencies summoning advocates merely for representing accused persons. In one such instance, the Gujarat Police had issued a notice to an advocate who had appeared for an accused in a bail application arising from a loan dispute. Staying the operation of the notice, the Bench observed that the issue warranted urgent consideration at the institutional level and accordingly, referred the matter to the Hon'ble Chief Justice of India. Acting upon this reference, the Supreme Court registered the suo motu case on July 4th, 2025.

4. Issues Before the Court

1. Whether an individual associated with a case solely in the capacity of a lawyer rendering legal advice or representation may be directly summoned for questioning by the Investigating Agency, Prosecuting Agency, or Police?
2. If the Investigating Agency believes that the individual's role extends beyond that of a lawyer and involves something more, should it be permitted to summon the lawyer directly, or should such action be subject to judicial oversight in such exceptional circumstances?
3. Whether the Supreme Court should frame new guidelines, similar to those laid down in Jacob Mathew⁵ and Vishaka⁶, in the absence of a statutory framework?
4. Whether the statutory protection of professional privilege under Section 132 of BSA extends to the production or seizure of documents and digital devices in the possession of an advocate or client?
5. Whether an In-house counsel employed by corporate entities would be covered under the privilege offered by Section 132 of BSA?

5. Observations by the Supreme Court

1. Protecting the Lawyer's Role and the Sanctity of Privilege

The Supreme Court, in its judgement, transformed what began as a procedural controversy into a broader reaffirmation of constitutional fidelity to the independence of the legal profession. The judgement opened with a caution that while investigative powers are integral to the enforcement of the rule of law, such powers cannot be exercised in a manner that subjects advocates to investigation merely for performing their professional duties. The Court held that summoning an advocate solely for having advised or represented a client constitutes intrusion into a confidential space that the law expressly protects.

Central to the Court's reasoning is the constitutional right of an individual to consult an advocate of their choice, as guaranteed under Articles 21 and 22 of the Constitution of India. The Bench observed that this right would be rendered illusory if a lawyer could subsequently be compelled to disclose privileged communications or confidential exchanges with a client. The Court drew reference to the words of Justice V.R. Krishna Iyer that the "Bar is not a private guild, like that of 'barbers, butchers and candlestick-makers' but, a public institution committed to public justice and pro bono public service⁷" underscoring that any attempt to intimidate one lawyer threatens the independence of the Bar as a whole.

2. Privilege Is Not Absolute – Oversight and Exceptions

While firmly delineating the contours of professional privilege, the Supreme Court clarified that such protection is not absolute or unqualified. The Court recognised that in circumstances where credible material indicates that an advocate's conduct extends beyond the legitimate discharge of professional duties and amounts to participation in the commission of an offence or fraud, investigative action may be justified. However, such action must adhere to a structured and accountable procedure.

In this regard, the Court directed that any summons issued to an advocate must explicitly disclose the factual basis for invoking an exception to privilege, be approved in writing by a superior officer not below the rank of Superintendent of Police, and remain subject to judicial review under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ("BNSS"). In essence, while the power to summon survives, it is circumscribed by procedural safeguards ensuring due process, oversight, and transparency.

3. No Need for New Judicial Guidelines

In response to the Bar's plea seeking formulation of new procedural guidelines, the Supreme Court declined to exercise its powers under Article 142 of the Constitution of India. The Bench held that Sections 132 to 134 of the BSA already form a comprehensive statutory framework governing professional communications between lawyers and their clients. Having evolved from Sections 126-129 of the Evidence Act, the Court noted that this framework has "stood the test of time in this Country" and continues to safeguard both the independence of the legal profession and the sanctity of client confidentiality.

The Court further distinguished the proceedings at hand from decisions such as Vishaka⁸ and Jacob Mathew⁹, clarifying that judicial guidelines are justified only in circumstances where the law is silent. In contrast, the issue in the present case pertained to implementation of an existing legal framework, rather than the absence of one, and therefore did not justify the exercise of judicial lawmaking.

4. Extent of Privilege: Documents and Digital Devices

The Supreme Court clarified that Section 132 of the BSA protects the confidentiality of professional communications between advocates and their client, but not the mere act of producing a document. The Court observed that while investigating authorities and courts are empowered under Section 94 of the BNSS to seek the production of documents, such production must be made only before the jurisdictional court. Thereafter, it shall be for the court to adjudicate upon any objections or claims of privilege after affording an opportunity of hearing to both the advocate and the client.

Acknowledging the heightened privacy concerns associated with electronic records, the Court prescribed additional safeguards in respect of digital devices. It directed that any order for the production of electronic material must be addressed to the court and not to an investigating officer, and that such examination must be conducted in the presence of both the advocate and the client. Further, the Court mandated that the review of digital material must be confined strictly to data relevant to the investigation, thereby ensuring that unrelated information, particularly that pertaining to other clients, remains protected and confidential.

5. In-House Counsel and the Limits of Statutory Privilege

The Supreme Court drew a crucial distinction between practising advocates and in-house counsel employed by corporate entities. It held that in-house legal professionals, being integrated within a company's management and governed by the terms of their employment, do not function as independent legal representatives in the manner contemplated under Section 132 of the BSA. Consequently, communications between a company and its in-house counsel are not protected by professional privilege available to practising advocates.

Nevertheless, the Court recognized that Section 134 of the BSA continues to provide a limited degree of protection to legal advice rendered by in-house counsel, thereby ensuring confidentiality within the scope of internal advisory functions, without equating them to independent practicing advocates.

6. Directions Issued by the Supreme Court

In order to balance investigative imperatives with the protection of client confidentiality and the independence of the Bar, the Supreme Court issued a structured set of directions clarifying the interpretation and application of privilege under the evidentiary rules under the BSA and BNSS.

1. Invocation of Privilege under Section 132 of the BSA: The Court affirmed that the privilege under Section 132 is conferred on the client, however, in the absence of the client, it may be invoked by the Advocate on behalf of the client.

• Investigating Officers or Station House Officers are prohibited from issuing summons to an advocate representing an accused merely to "know the details of the case," unless it is covered under any of the exceptions under Section 132 of the BSA.
• Where summons are issued under such exceptions, the communication must clearly specify the factual basis for invoking the exception and must bear the prior written approval of a superior officer not below the rank of Superintendent of Police.
• Any summons so issued to an advocate may be challenged either by the advocate or the client under Section 528 of the BNSS.
• The obligation of non-disclosure under Section 132 of the BSA extends not only to advocates engaged in litigation but also to those involved in non-litigious or pre-litigation work.

2. Production of documents: The Court clarified that Section 132 protects confidential communications, but not the mere act of producing documents. Accordingly, production of documents in the possession of an advocate or a client is not covered by the privilege under Section 132 in either civil or criminal proceedings.

• In criminal proceedings, such production, whether directed by a Court or an investigating officer, must be made before the Court in accordance with Section 94 of the BNSS read with Section 165 of the BSA.
• In civil proceedings, production shall be governed by Section 165 of the BSA and Order XVI Rule 7 of the Civil Procedure Code, 1908.
• Upon production, the Court must adjudicate any objections regarding production or admissibility of the documents, after affording both the advocate and the client an opportunity of being heard.

3. Production of Digital Devices: Recognising the heightened privacy implications of electronic data, the Court laid down special safeguards for the production of digital devices under Section 94 of the BNSS.

• Where an investigating officer seeks the production of such devices, the same must be produced before the jurisdictional court.
• The Court must issue a notice to the concerned party and provide an opportunity to the party and their advocate to raise objections relating to the production, discovery, or admissibility of any material retrieved.
• If such objections are overruled, the digital device shall be accessed only in the presence of the party, their advocate, and a person possessing relevant technological expertise nominated by them.
• The Court must further ensure that the confidentiality of other clients' data is preserved and that the scope of discovery is confined strictly to the material relevant to the investigation and found permissible and admissible.

4. Limited Protection for In-house Counsel: The Court reiterated that in-house counsel, being employees of corporate entities and not practising advocates, are not entitled to claim privilege under Section 132 of the BSA.

• However, the Court clarified that in-house counsel may avail the limited protection contemplated under Section 134 of the BSA in respect of communications made to the legal advisor of their employer. This protection, however, does not extend to communications exchanged directly between the employer and the in-house counsel.

7. Conclusion

The Supreme Court's suo motu judgement in In Re: Summoning Advocates Who Give Legal Opinion underscores attorney–client privilege as an essential safeguard for the independence of the Bar and the right to effective legal representation. The judgement restores a critical equilibrium between the powers of the State and the independence of the Bar, reaffirming that investigative powers cannot be used in a way that compromises the sanctity of legal representation or deters advocates from performing their professional duties.

By mandating supervisory approval, judicial oversight, and procedural transparency, the Court has ensured that investigative powers are exercised within constitutional limits. The decision further demonstrates a forward-looking approach to evolving legal realities, particularly those involving digital evidence and corporate legal structures, by providing specific safeguards for electronic data and clarifying the limited scope of privilege available to in-house counsel.

In essence, the ruling marks a decisive reaffirmation that confidentiality in attorney-client relationship is not merely a professional courtesy but a cornerstone of the administration of justice. By ensuring that the right to counsel remains insulated from investigative overreach, the Court has fortified both the independence of the legal profession and the citizen's right to effective legal representation.

Footnotes

1 In Re: Summoning of Advocates Who Give Legal Opinion or Represent Parties During Investigation of Cases and Related Issues, 2025 INSC 1275.

2 1 Myl. & K. 98, 39 Eng. Rep. 618 (Ch. 1833).

3 [1995] UKHL 18.

4 Upjohn Co. v. United States, 449 U.S. 383 (1981).

5 Jacob Mathew v. State of Punjab, (2005) 6 SCC 1.

6 Vishaka v. State of Rajasthan, AIR 1997 SC 3011.

7 Bar Council of Maharashtra v. M.V. Dabholkar Etc., (1975) 2 SCC 702.

8 Supra note 6.

9 Supra note 5.

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