Supreme Court on Lawyer-Client Privilege
Background
The Supreme Court took suo motu cognizance after the Enforcement Directorate (ED) summoned two senior advocates to reveal legal advice given to clients.
The Bar Council of India and top law officers (Attorney-General, Solicitor-General) opposed this move, calling it an attack on the legal profession and fair trial rights.
The three-judge Bench was led by CJI B.R. Gavai, with Justices K. Vinod Chandran & N.V. Anjaria.
Key Judgment
Probe agencies cannot compel lawyers to disclose any professional communication or advice given to clients.
Such compulsion violates:
Article 20(3): Protection against self-incrimination (client’s right).
Article 19(1)(g): Lawyer’s freedom to practice profession.
Article 21: Right to fair legal defence and due process.
Legal Basis
➤ Bharatiya Sakshya Adhiniyam (BSA), 2023 – Section 132
Protects lawyer–client confidentiality:
Advocates cannot disclose information obtained during professional employment.
Exceptions:
With client’s consent.
When made in furtherance of an illegal purpose.
If a crime or fraud is committed as a result.
Replaces Section 126 of the Indian Evidence Act, 1872.
Court’s Key Observations
Lawyers are not at the beck-and-call of investigative agencies.
Compelling an advocate to prejudice his client is an “outrageous infringement” of constitutional rights.
The duty of the investigator is to collect independent evidence, not extract it through the defence counsel.
Lawyer–client trust forms the foundation of justice delivery and legal representation.
Procedural Safeguards Directed by the SC
Summons to lawyers by probe agencies require prior approval from an officer not below the rank of Superintendent of Police (SP).
Written satisfaction of such officer must be recorded.
The summons must clearly mention under which exception clause (Section 132, BSA) it is issued.
No “fishing inquiries” are permitted into client communications.
Implications
Strengthens rule of law and independence of the Bar.
Reinforces client confidence in legal representation.
Limits executive overreach in investigations.
Aligns India with global legal privilege norms (e.g., UK, USA).
Key Legal Provisions Involved Article 20(3) – Right Against Self-Incrimination · No person accused of an offence shall be compelled to be a witness against himself. · Extends to indirect compulsion through an advocate. Article 19(1)(g) – Freedom of Profession · Lawyers have the right to practice their profession without undue interference. Article 21 – Right to Life and Personal Liberty · Includes right to fair legal representation and confidential consultation. Section 132, Bharatiya Sakshya Adhiniyam (BSA), 2023 · Protects lawyer–client privilege. · Advocates cannot be compelled to disclose: o Any communication with the client; or o Contents of documents related to the case. Exceptions:
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Prelims Practice MCQ
Q. Consider the following statements regarding Section 132 of the Bharatiya Sakshya Adhiniyam (BSA), 2023):
It protects advocates from being compelled to disclose client-related communications.
It contains no exceptions to this rule under any circumstances.
It replaces Section 126 of the Indian Evidence Act, 1872.
Which of the statements given above is/are correct?
(a) 1 and 2 only
(b) 1 and 3 only
(c) 2 only
(d) 1, 2 and 3
✅ Answer: (b) 1 and 3 only
Explanation:
Statement 1 – Correct: Advocates enjoy privilege under Section 132 of BSA, 2023, protecting confidential communications.
Statement 2 – Incorrect: There are exceptions, such as:
If communication was made in furtherance of an illegal act, or
If a crime or fraud has been committed due to such communication, or
If client consents to disclosure.
Statement 3 – Correct: Section 132 (BSA) corresponds to Section 126 of the Indian Evidence Act, 1872, which the BSA replaced.
Q. With reference to the Supreme Court’s directions on summoning lawyers by investigating agencies, consider the following statements:
Any summons issued to a lawyer must receive prior approval from an officer not below the rank of Superintendent of Police.
The summons must explicitly state the exception clause under which the lawyer is being called.
Such summons can be issued even without the client’s consent if the investigating officer suspects concealment of evidence.
Which of the statements given above is/are correct?
(a) 1 and 2 only
(b) 2 and 3 only
(c) 1 only
(d) 1, 2 and 3
✅ Answer: (a) 1 and 2 only
Explanation:
Statement 1 – Correct: The SC mandated that a senior officer (SP rank or above) must approve any summons to lawyers.
Statement 2 – Correct: The summons must specify the exception under Section 132 (BSA, 2023) justifying it.
Statement 3 – Incorrect: Mere suspicion of concealment is not sufficient; privilege can be overridden only under defined exceptions (illegal purpose, crime, or fraud).
Q. Which of the following best describes the constitutional significance of the 2025 Supreme Court judgment on lawyer–client privilege?
(a) It introduces a new fundamental right under Article 32 guaranteeing legal privacy.
(b) It broadens the interpretation of Article 20(3) by including indirect compulsion through advocates.
(c) It restricts the scope of Article 19(1)(g) to exclude advocates involved in criminal defence.
(d) It empowers investigating agencies to override privilege through executive authorization.
✅ Answer: (b)
Explanation:
The Court expanded Article 20(3) protection by recognising indirect violation through third-party coercion, such as forcing a lawyer to disclose client communications.
(a) Incorrect – No new fundamental right created.
(c) Incorrect – Article 19(1)(g) was reinforced, not restricted.
(d) Incorrect – The Court limited, not expanded, the executive’s power.