Court’s Decision
The Supreme Court emphatically held that an investigating officer cannot summon an advocate representing an accused for disclosure of facts of the case, except in narrowly defined statutory exceptions under Section 132 of the Bharatiya Sakshya Adhiniyam (BSA). It ruled that professional communications between a client and advocate are privileged, and any attempt by police to obtain case facts from counsel is an “abject failure of investigation”. The Court refused to frame new guidelines or create a supervisory committee, stating that the statute already provides clear safeguards.
It clarified that summons to an advocate must explicitly state the statutory exception invoked, be approved by a superior officer, and remain open to judicial review. The Court finally issued detailed directions to protect legal privilege and prevent misuse of police power.
Facts
A reference arose from a situation where an advocate representing an accused in a loan-related criminal case under the BNSS was summoned by police under Section 179 BNSS. The summons disclosed only the crime number and the statutory provisions but sought “true facts of the case” directly from the advocate — effectively demanding privileged communication.
The issue reached the Supreme Court after a two-Judge Bench expressed concern that investigating agencies across the country had begun issuing such summonses to defence counsels, bypassing the statutory guarantee of confidentiality. Multiple petitions were clubbed, including challenges by advocates who were summoned by agencies such as the police and Enforcement Directorate.
Submissions were made by the Union, Bar Councils, and several intervenors, raising extremely significant questions about the nature of attorney–client privilege, the scope of investigative powers, the rights of the accused under Articles 14, 21 and 22(1), and the constitutional role of legal practitioners.
Issues
- Whether investigating agencies can summon an advocate under Section 179 BNSS to disclose case facts relating to their client.
- Whether attorney–client privilege under Section 132 BSA prohibits such disclosure.
- Whether the Court should frame special guidelines to regulate police summons to advocates.
- Whether the act of summoning counsel violates Articles 14, 21 and 22(1) of the Constitution.
- Whether a committee or judicial scrutiny mechanism should be created before summoning a lawyer.
Petitioner’s Arguments
The petitioners argued that summoning a practising advocate to disclose case facts defeats the entire justice system, as counsel often acquire knowledge solely through confidential conversations protected by statutory privilege. They submitted that the police, instead of investigating independently, were resorting to shortcuts by interrogating defence counsel, violating due process.
It was argued that Section 132 BSA expressly prohibits disclosure of professional communications, and investigating agencies are misusing Section 179 BNSS without satisfying statutory exceptions. The petitioners submitted that such actions also infringe the accused’s right to fair representation under Articles 14, 21, and 22(1), and create a chilling effect on legal advice. Hence, guidelines or protective mechanisms were demanded.
Respondent’s Arguments
The respondents, including the State, contended that police possess broad investigative power, and there may be circumstances where the advocate possesses information independently of privileged communication. They argued that statutory power cannot be curtailed through judicially created restrictions. They submitted that Section 132 BSA provides adequate safeguards, and only in cases involving exceptions such as communication made in furtherance of an illegal purpose or observations indicating crime does the privilege not apply.
The respondents opposed the creation of additional committees or guidelines, arguing it would hamper investigation, create bureaucratic delays and be inconsistent with legislative intent.
Analysis of the Law
The Court undertook an extensive examination of Sections 132 to 134 BSA, emphasising that these provisions codify attorney–client privilege in India. Section 132 prohibits disclosure of professional communication, even if compelled, except in narrowly worded exceptions such as communications made for illegal purposes or observations revealing a crime.
The Court contrasted this with the investigative power under Sections 175 and 179 BNSS. It stressed that while police have authority to issue summons, this power is subservient to statutory privilege, and cannot override client confidentiality.
The Court noted, with concern, that agencies were treating lawyers as sources of information rather than protectors of constitutional rights — a practice the bench described as “a violation of statutory mandate by deliberate design or ignorance.”
Precedent Analysis
The Court referred to and relied upon several significant precedents:
- Walter v. National Association of Radiation Survivors (US Supreme Court) — used to highlight Shakespeare’s warning that undermining lawyers is a step toward authoritarianism.
- Upjohn Co. decision — recognising privilege as essential for effective representation and administration of justice.
- M.H. Hoskot v. State of Maharashtra and Hussainara Khatoon, affirming right to counsel as part of Article 21 protection.
- Sakiri Vasu v. State of Uttar Pradesh and Vinubhai Malaviya, on magistrate’s limited oversight in investigation.
- Vishaka and Jacob Mathew, cited to explain when courts can frame guidelines, but distinguished because in this case statutory provisions already exist.
Each precedent helped the Court conclude that judicial intervention is unnecessary when statute itself provides a complete framework.
Court’s Reasoning
The Supreme Court held that the summons issued to the advocate was fundamentally flawed because it sought information that could only have been obtained through privileged communication. The Court described such summons as “a reflection of investigative failure” and reiterated that an advocate’s position of trust cannot be breached through coercive steps.
The Court also rejected the creation of new guidelines, observing that Sections 132–134 BSA already provide complete safeguards. Judicial guidelines are justified only when a legislative vacuum exists, which is not the case here. Creating a committee to regulate summons was considered inappropriate because it excludes the client’s participation and undermines privilege.
Thus, the Court clarified that the onus lies on investigating agencies to comply strictly with Section 132, and not treat advocates as witnesses of convenience.
Conclusion
The Supreme Court concluded that police cannot summon defence counsel for case-related disclosures unless the statutory exceptions under Section 132 BSA expressly apply. Any summons must clearly record the exception invoked, be backed by written satisfaction of a superior police officer, and remain open to judicial review.
The Court issued specific operative directions (paras 67–76), affirming privilege, restricting police power, mandating written justification for any summons, and clarifying that production of documents is not automatically privileged.
Implications
This landmark ruling significantly strengthens the attorney–client relationship in India. It prevents misuse of investigative power, protects the constitutional right to counsel, and ensures that defence lawyers are not harassed or coerced. Investigators are compelled to conduct independent and professional investigation rather than relying on defence counsel for facts. The judgment also clarifies India’s evidentiary framework under the BSA and BNSS, preventing future abuse and securing due process safeguards.
