A Lawyer Cannot Be Summoned Merely for Representing an Accused – Such Summons Is Illegal and Unconstitutional: Supreme Court

01 November 2025 10:50 AM

By: sayum

“Power to Summon Is Not Power to Breach Confidentiality”: Supreme Court Affirms Absolute Protection to Advocate–Client Communications Under Section 132 BSA. In a seminal ruling on October 31, 2025, the Supreme Court of India, in Suo Motu Writ Petition (Criminal) No. 2 of 2025, along with connected matters, categorically struck down the practice of summoning Advocates to disclose client-related information during investigations, unless statutory exceptions under Section 132 of the Bhartiya Sakshya Adhiniyam, 2023 (BSA) are explicitly invoked.

A three-judge Bench comprising Chief Justice B.R. Gavai, Justice K. Vinod Chandran, and Justice N.V. Anjaria held that investigating agencies cannot summon an Advocate solely for the purpose of extracting information relating to a client, as such action violates both statutory protections under Section 132 BSA and fundamental rights under Articles 19(1)(g), 20(3), 21, and 22(1) of the Constitution.

The Court warned that “the power to summon is not the power to interfere with privileged communications between lawyer and client, as long as Constitutional Courts sit in this country.”

“Privilege Survives Even After Engagement Ends – Advocates Cannot Be Compelled to Disclose Without Consent or Exception”: Court Clarifies Scope of Section 132 BSA

The central issue concerned the legality of a summons issued to a lawyer representing an accused under Section 179 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS), seeking “true details of facts and circumstances” of the case. The Court held such a summons as illegal, holding that “subjecting a counsel in a case to the beck and call of the investigating agency... appears to be completely untenable.”

Reiterating the sanctity of legal privilege, the Court observed:

“Section 132 imposes an obligation on Advocates to maintain confidentiality; any breach without client consent or outside the exceptions carved in law amounts to professional misconduct.”

The Court noted that the privilege belongs to the client, but the Advocate has the duty—and right—to assert it, even if the client is absent or unaware of the proceeding. This immunity, the Court emphasized, “is rooted in constitutional safeguards including Article 20(3), which protects against self-incrimination.”

“Summons Must Explicitly State Exception Under Section 132 – Approval of Superintendent-Level Officer Mandatory”: Court Issues Binding Directions

In a landmark exercise of powers under Article 142, the Supreme Court issued mandatory procedural safeguards for any future summons issued to Advocates:

“No summons can be issued to an Advocate under Section 179 BNSS unless it clearly falls under one of the exceptions in Section 132 of BSA and that too, only with prior written approval of a superior officer not below the rank of Superintendent of Police.”

Such summons must:

State specific facts invoking the exception (e.g., fraud, crime committed during engagement, or communication made for illegal purpose);
Be subject to judicial review under Section 528 BNSS;
Be issued only against lawyers acting professionally—litigiously or non-litigiously.

The Court ruled that casual summoning of lawyers merely for representing clients was a "grave abuse of process" that directly impacts the adversarial justice system and erodes the public’s confidence in fair legal representation.

“No Legislative Vacuum Exists to Justify Guidelines Like Vishaka or Jacob Mathew”: Court Declines to Frame Extra-Legal Oversight Mechanism

Despite fervent arguments from the Bar, including Supreme Court Bar Association and SCAORA, seeking a multi-level judicial and professional committee to vet any summons, the Court declined to create a parallel mechanism, holding:

“This is not a case like Vishaka or Jacob Mathew where legislative vacuum or systemic failures justified judicial guidelines. Here, the statutory framework—BNSS and BSA—is complete and self-contained.”

It clarified that “the power to summon must operate within the boundaries of privilege and constitutional protections—nothing less, but certainly nothing more.”

The Court warned that guideline-based pre-approvals or peer review committees would not only be legally unsound, but counter-productive, and could stifle legitimate investigations where lawyers are genuinely involved beyond their professional role.

"Digital Devices Not Covered Under Section 132 – But Discovery Must Happen Before Court With Safeguards": SC Protects Confidentiality Beyond Paper

Addressing concerns on modern digital evidence, the Court ruled that Section 132 privilege does not extend to documents or devices per se. However, if such materials are in an Advocate’s possession:

They can only be produced before the jurisdictional Court under Section 94 BNSS;
The Court must examine objections and supervise discovery;
Any discovery from digital devices must occur in the presence of the client, the Advocate, and a digital expert of their choice;
Confidential data relating to other clients must be strictly protected.

The Court held that “the production of digital devices requires heightened safeguards, lest other client matters suffer unintended breaches of confidentiality.”

“In-House Counsel Not Covered by Section 132 – Privilege Applies Only to Independent Advocates Practicing Law”

Another vital ruling pertained to in-house counsel employed by companies, many of whom sought equal protection under Section 132 BSA.

Rejecting the claim, the Court held:

“In-house counsels are salaried employees, not practicing Advocates under the Advocates Act, 1961. They are therefore outside the purview of Section 132.”

The Court placed reliance on its Constitution Bench ruling in Rejanish K.V. v. K. Deepa (2025 SCC OnLine SC 2196) and European case law (Akzo Nobel), observing that economic dependence and lack of professional independence made in-house lawyers unsuitable for privilege protection in the same manner as external Advocates.

However, such counsels may still claim protection under Section 134 BSA for personal legal advice they receive, but not communications made in their official capacity as company employees.

“Being an Advocate Is Not a Shield for Crime – But Investigators Cannot Weaponise Summons to Breach Confidentiality”

While ruling emphatically in favour of Advocate–client privilege, the Court also drew a clear line:

“The immunity under Section 132 does not protect an Advocate involved in a crime. Communications made in furtherance of an illegal purpose, or facts observed indicating fraud or crime during the engagement, are not protected.”

However, such exceptions must be made explicit in the summons, and not used as a cloak for fishing inquiries. The safeguard of judicial review remains the final remedy against such overreach.

Summons Quashed, Directions Issued, Bar’s Trust Reaffirmed

The Supreme Court ultimately:

Set aside the impugned summons issued to the Advocate in SLP (Criminal) No. 9334 of 2025;
Disposed of the suo motu and connected petitions;
Issued binding directions to all investigating agencies and authorities across the country;
Cautioned enforcement agencies to avoid "impulsive transgressions" into lawyer–client privilege;
Affirmed that breach of such privilege could result in not just professional misconduct, but constitutional violations.

Concluding, the Bench observed:

“The position of trust the Advocate occupies vis-à-vis his client cannot be put to test by an attempt to breach professional confidence... The power to summon is not the power to destroy privilege, while Constitutional Courts sit.”

Key Legal Takeaways:

Advocate–client communications are protected absolutely under Section 132 BSA, subject only to narrow exceptions;
No blanket summons can be issued to lawyers merely for appearing in a case;
Written approval of SP-rank officer and explicit invocation of exception is mandatory;
Section 94 BNSS governs document/device production – discovery only in Court, under judicial oversight;
In-house counsel not protected under Section 132, but may invoke Section 134 for personal legal advice;
Privilege applies to litigation, non-litigation, and even pre-litigation legal advice engagements;
Summons can be challenged under Section 528 BNSS, ensuring access to judicial protection.