Summoning Advocates for Legal Advice — A Constitutional Concern

25 Jun 2025 GS 2 Polity
    Live Views: Loading...


Context:

  • On June 12, 2024, the Enforcement Directorate (ED) summoned senior advocate Arvind Datar regarding a legal opinion given to Care Health Insurance in the Religare–ESOP case.

  • After protests from the legal community, the summons was withdrawn. However, another senior advocate, Pratap Venugopal, was also summoned later.

  • This raised serious concerns about the misuse of investigative powers and the chilling effect on the independence of legal counsel.

Core Legal Issues:

1. Advocate-Client Privilege:

  • Protected under Section 132 of the Bharatiya Sakshya Adhiniyam (BSA), 2023 (which replaced Section 126 of the Indian Evidence Act, 1872).

  • Legal advice between a client and lawyer is privileged communication and cannot be disclosed without the client’s consent.

  • This privilege is essential to the administration of justice, not a personal right of the lawyer.

2. Advocates Act, 1961 and BCI Rules:

  • Under the Bar Council of India (BCI) Rules, advocates must act without fear or favour, and their advice is protected unless prima facie evidence of conspiracy or complicity exists.

3. Judicial Precedent and Doctrine:

  • Courts have consistently held that lawyers cannot be held liable for legal opinions, even if those are incorrect, unless there is criminal conspiracy.

  • Such practices, if unchecked, violate the basic structure doctrine, including the independence of the legal profession and access to justice.

Constitutional Dimensions:

1. Article 19(1)(g):

Right to practice any profession — includes the freedom of advocates to discharge duties without coercion or fear.

2. Article 21:

Right to life and personal liberty — includes right to fair legal representation; summoning advocates for advice impinges upon this by threatening professional independence.

3. Article 50:

Separation of powers — the executive (investigating agencies) must not interfere with the independence of the Bar and Judiciary.

Concerns Raised:

  • Misuse of statutory powers under laws like the Prevention of Money Laundering Act (PMLA), 2002.

  • Psychological deterrence to giving candid legal advice.

  • Chilling effect on corporate governance, criminal defence, public interest litigation, and constitutional litigation.

  • Shrinkage of independent, fearless advocacy — leading to a pliant and silent Bar, threatening the rule of law.

Call for Reforms:

1. Judicial Clarification Needed:

  • Courts should declare that legal advice alone cannot attract summons unless there's prima facie evidence of fraud, conspiracy or unlawful intent.

2. Bar Council Action:

  • BCI and State Bar Councils must defend the institutional independence of the Bar by engaging with executive agencies and issuing clear positions.

3. Legislative Safeguards:

  • Parliament may consider amendments to reinforce advocate-client privilege, especially for sensitive legal domains.

Analytical Angle:

  • Ensuring judicial insulation from executive interference is vital in a constitutional democracy.

  • Undermining legal counsel independence endangers due process and deters honest legal advice in governance and justice delivery.



← Back to list