Supreme Court Issues Directions: No Arbitrary Summons to Advocates in Criminal Cases

Supreme Court Issues Directions: No Arbitrary Summons to Advocates in Criminal Cases

Issue: To prevent investigative agencies (like the Income Tax Department or police) from arbitrarily issuing summons to advocates in criminal cases regarding legal advice given to their clients, which undermines attorney-client privilege and the independence of the legal profession.

Facts:

• The Supreme Court initiated a suo motu (on its own motion) case following controversy over investigative agencies (including the Enforcement Directorate) summoning advocates who represent the accused.
• The Bar Associations argued that issuing such summons without judicial oversight violates attorney-client privilege and impacts the fair administration of justice.
• The Solicitor General and Attorney General opposed mandatory Magisterial oversight, arguing it would create special protection violating the principle of equality.
• The Court considered harmonizing the evidentiary rule (privilege) with the procedural rule (summons power).

Decision:

The Supreme Court issued a set of binding directions that strictly restrict the issuance of summons to advocates in criminal cases, particularly regarding privileged communications, and mandated the prior approval of a superior officer. The Court refrained from mandating Magisterial oversight.

Key TakeDowns (Directions Issued):

• Privilege Protection (Section 132): An Investigating Officer (IO) shall not issue a summons to an Advocate to know the details of the case, unless the Advocate’s communications are covered under the specific exceptions of Section 132 of the Bharatiya Sakshya Adhiniyam (BSA).
• Mandatory Superior Approval: If a summons is issued under an exception (e.g., in furtherance of an illegal purpose), it must explicitly specify the facts relied upon and require the consent of a superior Officer not below the rank of a Superintendent of Police, who must record his satisfaction in writing.
• Digital Device Safeguards: If an IO directs the production of a digital device (e.g., computer, mobile) from an advocate, the direction must be to produce it before the Jurisdictional Court. If the Court overrules objections, the device can only be opened in the presence of the Advocate and the client, with assistance from a digital technology expert of their choice.
• In-House Counsel Exclusion: In-house counsel are not entitled to the professional privilege under Section 132 of the BSA, as they are not advocates practicing in Courts as defined by the law.
• Judicial Review: Summons issued to an advocate remain subject to judicial review at the instance of the Advocate or the client.