161 November 08 2025

SUPREME COURT’S LANDMARK SUO MOTU RULING ON ADVOCATE–CLIENT PRIVILEGE [EXPLAINED]

1. FACTS OF THE CASE
The case originated suo motu (on its own motion) by the Supreme Court of India after incidents were reported where investigating agencies such as the Enforcement Directorate (ED) summoned practicing advocates to disclose details regarding their clients’ cases. This coercion to reveal privileged communications sparked serious concern within the legal fraternity. The Bar argued that such summonses violated the advocate’s professional obligation of confidentiality under Section 132 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), formerly Section 126 of the Indian Evidence Act. It was contended that compelling an advocate to reveal client communications undermines both the advocate’s professional independence and the client’s constitutional protection against self-incrimination.

2. ISSUE BEFORE THE COURT
The central question before the Supreme Court was whether an investigating agency can summon an advocate representing an accused to elicit information regarding the client’s case, and whether such a summons would violate the legal privilege of confidentiality and the constitutional right to fair legal representation under Articles 19(1)(g) and 21 of the Constitution of India.





3. COMPLEX TERMS USED IN THE JUDGMENT
(a)Privileged Communication: Confidential information shared between a lawyer and client during the course of professional engagement, which cannot be disclosed without the client’s consent.
(b)Professional Misconduct: Any act by an advocate that breaches professional ethics, such as unauthorized disclosure of client information.
(c)Suo Motu: Action taken by a court on its own initiative, without any formal petition.
(d)BNSS: Bharatiya Nagarik Suraksha Sanhita, 2023—India’s reformed criminal procedure code that replaced the CrPC.
(e)Dominant Purpose Test: A legal standard used to determine whether a communication was made primarily for obtaining legal advice or for another purpose.

4. CONTENTIONS OF THE PETITIONER (THE BAR AND ADVOCATES’ ASSOCIATIONS)
The petitioner’s side, represented by senior members of the Bar, argued that the advocate–client relationship is built on trust and confidentiality. Any disclosure compelled by investigative agencies would not only breach this trust but also expose advocates to charges of professional misconduct. They contended that a summons to an advocate seriously interferes with the fundamental right to practice one’s profession under Article 19(1)(g) and violates the client’s right to privacy and fair trial under Article 21. The Bar further sought judicial guidelines requiring that any summons to an advocate be approved by a peer-review body or the judiciary to prevent misuse of investigative powers.

5. CONTENTIONS OF THE RESPONDENT (THE STATE AND INVESTIGATING AGENCIES)
The Attorney General and Solicitor General, appearing for the State, acknowledged the sanctity of the advocate–client privilege but opposed the demand for new guidelines. They argued that Section 132 of the BSA sufficiently covers all exceptions to non-disclosure, including communications made in furtherance of illegal acts. They emphasized that no advocate enjoys absolute immunity—if an advocate participates in a crime or assists in an illegal act, privilege cannot be claimed. Therefore, the investigating agency retains the right to summon an advocate in such circumstances, provided the exceptions are clearly stated and justified in writing.

6. DISCUSSION ON RELEVANT LAWS AND RULES WITH EXAMPLES
The judgment heavily relied on Sections 132, 133, and 134 of the Bharatiya Sakshya Adhiniyam, which codify the advocate’s duty of confidentiality and outline exceptions. Section 132 prohibits advocates from disclosing client communications except when made in furtherance of an illegal purpose or when a crime or fraud is discovered during engagement. Illustrations within the Act clarify the boundaries: for example, a client’s admission of past forgery is protected, but instructions to commit future fraud are not.
The Court also drew parallels from international precedents, including Akzo Nobel v. European Commission, where the European Court of Justice held that privilege applies only to communications with independent lawyers, not in-house counsel. Furthermore, the Court emphasised the constitutional linkage between the attorney–client privilege and the protection against self-incrimination under Article 20(3).

7. COURT’S OBSERVATIONS (EMPHASISING THE ADVOCATE–CLIENT RELATIONSHIP)
The Supreme Court underscored that the advocate–client relationship is an essential component of the right to legal representation and a fair trial. Forcing advocates to disclose confidential communications would “deface the privilege” and render the right to counsel meaningless. The Court observed that such coercion not only endangers the client’s legal protection but also exposes advocates to professional misconduct allegations. The Bench reiterated that an investigating officer cannot summon a lawyer merely to obtain facts of a case and that such summons must specify the exception invoked under Section 132, backed by written approval from a superior officer not below the rank of Superintendent of Police.

8. JUDGMENT
The Court categorically held that investigating agencies cannot directly summon a lawyer representing a client to elicit case details. Any summons must explicitly state the facts justifying reliance on an exception under Section 132 and must be approved by a senior officer. It further ruled that such summonses are subject to judicial review under Section 528 of the BNSS. The Court, however, declined to frame additional guidelines or constitute peer committees, reasoning that the existing legal framework provides adequate protection. Finally, the Court reaffirmed that the power to summon does not extend to interference with privileged communications, as long as the courts uphold constitutional safeguards.

9. ARTICLE AUTHOR ADVOCATE ALOK KUMAR’S OPINION ON IN-HOUSE COUNSEL DISCUSSION
In my view, the judgment briefly acknowledges the participation of an “organisation of in-house counsels” among the intervenors, showing that the Supreme Court recognised the wider implications of the issue beyond advocates in private practice. However, the Court did not specifically examine or determine the professional status of in-house counsel under the Advocates Act, 1961, nor did it extend the statutory privilege under Section 132 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) directly to them. The reasoning throughout the judgment focuses on “Advocates” as defined under Section 2(a) of the Advocates Act—that is, persons enrolled with a State Bar Council and entitled to practice law.

From my professional understanding, Rule 49 of the Bar Council of India Rules (Part VI, Chapter II) plays a decisive role here. It provides that an advocate who takes up full-time salaried employment ordinarily ceases to be an “advocate” for that period and cannot appear or practice before any court or authority. As a result, most corporate legal advisers serving as in-house counsel do not qualify as “practicing advocates” and therefore cannot automatically claim the statutory protection of professional privilege under Section 132 BSA.

That said, if an in-house counsel remains an enrolled advocate and offers legal advice purely in a professional legal capacity—rather than performing business or managerial functions—such communications, in my opinion, may still attract confidentiality protection. Thus, while the judgment does not expressly exclude in-house counsel, it clearly implies that the privilege of non-disclosure primarily belongs to those recognized as advocates in active legal practice. The Court’s acknowledgment of in-house counsel’s intervention reflects its awareness of their role in modern legal systems, yet it leaves open the question of extending statutory privilege to corporate legal departments—a matter that, in my view, deserves further judicial or legislative clarification.

Author

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Adv. ALOK KUMAR
Advocate Serving Delhi NCR
Delhi High Court & District Courts
LL.B.▪︎Faculty of Law▪︎Delhi University


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