No Direct Police Summons to Advocates Absent Section 132 Exceptions: Supreme Court fortifies Advocate–Client Privilege, mandates SP-level approval, judicial review, and protocols for documents and digital devices

Citation: 2025 INSC 1275 | Court: Supreme Court of India | Date: 31 October 2025

Bench: B. R. Gavai, CJI; K. Vinod Chandran, J. (author); N. V. Anjaria, J.

Matters: Suo Motu Writ Petition (Crl.) No. 2 of 2025 & Ors.; WP (C) No. 632 of 2025; SLP (Crl.) No. 9334 of 2025

Introduction

This suo motu proceeding arose from a Special Leave Petition challenging a notice issued under Section 179 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) to an advocate who had filed a bail application for an accused in a loan dispute-based FIR in Gujarat. The Investigating Officer (IO) directed the advocate to appear “to know true details of the facts and circumstances,” prompting the High Court to decline interference. Recognizing the wider implications for the justice system and the legal profession, a two-Judge Bench referred the matter, framing core questions of “utmost public importance” about when and how investigators may summon a lawyer who advises or represents a party during investigation, particularly in light of Section 132 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), the statutory successor to Section 126 of the Indian Evidence Act.

The Bar, represented by the Supreme Court Bar Association (SCBA), Supreme Court Advocates-on-Record Association (SCAORA), the Bar Council of India (BCI), and others, voiced deep concern over escalating investigative summons to lawyers, including past instances by the Enforcement Directorate (ED), and sought protective guidelines and peer-review mechanisms. The Union of India and State of Gujarat, represented by the Attorney General and Solicitor General, accepted the centrality of attorney–client privilege but opposed judicially created procedures beyond the existing statutory scheme.

Against this backdrop, the Supreme Court has delivered a calibrated judgment: it refuses to create Vishaka-style guidelines or a peer-review/ magisterial pre-clearance regime; yet it emphatically reaffirms the strength and reach of statutory privilege and issues binding directions that decisively restrict investigative summons to legal counsel, align police powers with Sections 132–134 BSA, and establish clear, court-centered protocols for documents and digital devices.

Summary of the Judgment

• Question 1 (Can investigators directly summon a lawyer who only advises or appears?): Answered with an emphatic “No.” IOs may not summon an advocate merely to “know the facts and circumstances” of a case in which the advocate appears or advises. Summons are permissible only if the IO has credible basis to invoke a statutory exception under Section 132 BSA (client’s express consent; communications in furtherance of an illegal purpose; or facts observed during engagement showing crime or fraud after the engagement began). The summons must explicitly state the exception and factual basis.
• Mandatory supervisory approval: Any such summons to an advocate must have prior written satisfaction/approval of a superior officer not below the rank of Superintendent of Police (SP), with recorded reasons identifying the Section 132 exception.
• Judicial oversight: Summons issued to an advocate are amenable to judicial review under Section 528 BNSS (High Court’s inherent powers to prevent abuse of process and secure the ends of justice).
• Scope of privilege: Section 132 BSA protects communications for litigation and extends to non-litigious and pre-litigation legal advice. The privilege belongs to the client but may be asserted by the advocate in the client’s absence.
• Documents and devices: Section 132 does not immunize the mere production of documents. Production in criminal matters must follow Section 94 BNSS and be to the court; the court will hear objections and decide admissibility (with Section 165 BSA safeguards). For digital devices, production is only before the court, which must:
  • Notify the client and hear objections of client and advocate;
  • Allow presence of client, advocate, and a tech expert of their choice;
  • Confine access strictly to the permitted scope, protecting other clients’ confidentiality.
• In-house counsel: Not entitled to Section 132 privilege because they are not “Advocates” practising independently (Rule 49 BCI Rules; Rejanish K.V. v. K. Deepa). The Court adds that in-house counsel may receive some protection under Section 134 BSA in relation to communications “made to the legal advisor of his employer,” but Section 134 protection cannot be claimed for communications between the employer and the in-house counsel.
• High Court order set aside; summons quashed: The impugned summons was illegal (it sought case facts from the defence advocate) and should have been quashed under Section 528 BNSS.
• No Vishaka-style guidelines or peer-review committees: The Court declines to create extra-statutory procedures; the statutory scheme in BSA and BNSS suffices when properly enforced.

Detailed Analysis

Statutory Framework

• Section 132 BSA (Professional communications): Prohibits an advocate from disclosing client communications, documents learned through the engagement, or advice given, without the client’s express consent. Exceptions:
  • Communications made in furtherance of an illegal purpose;
  • Facts observed during engagement indicating the client committed a crime or fraud after the engagement commenced;
  • Waiver by client.
  The duty continues after the engagement ends; applies also to interpreters and staff.
• Section 133 BSA (Privilege not waived by volunteering evidence): Giving evidence doesn’t automatically waive Section 132; waiver arises only when the client calls the advocate and questions him on otherwise privileged matters.
• Section 134 BSA (Confidential communications with legal advisers): No one can be compelled by the court to disclose confidential communications with their legal adviser, unless they themselves testify and the court deems such communications necessary to explain their evidence—“but no others.”
• BNSS Sections 175, 179: Empower the police to investigate and summon persons; the Court clarifies these cannot be used to penetrate Section 132 privilege.
• BNSS Section 94: Court or officer-in-charge may require production of documents/things; but production is to the court for decision on objections and admissibility. Section 94(3) exempts some categories (e.g., Sections 129, 130 BSA; Bankers’ Books), but notably not Section 132—hence the need for court screening and Section 165 BSA safeguards.
• BNSS Section 528: High Court’s inherent power to prevent abuse of process—provides judicial oversight over abusive summons to advocates.

Precedents and Authorities Cited and Their Influence

• Jacob Mathew v. State Of Punjab (2005) 6 SCC 1: Laid down safeguards against routine criminal prosecution of doctors for negligence; Bar urged a comparable peer-review mechanism for lawyers. The Court distinguishes it: Jacob Mathew addressed medical negligence (tort-crime interface), not privileged communications. Hence, no peer-review is warranted for summoning advocates.
• Vishaka v. State of Rajasthan (1997) AIR SC 3011: Guidelines issued due to legislative vacuum on sexual harassment. The Court holds there is no legislative vacuum here: Sections 132–134 BSA and BNSS already supply the rule-set.
• Greenough v. Gaskell (1833) 39 ER 618 (UK): Classic exposition: privilege protects justice by fostering full and frank consultation with legal advisers; extends beyond pending litigation and excludes communications in furtherance of illegal purposes. Adopted to affirm that privilege covers non-litigious/pre-litigation advice too.
• U.S. v. Upjohn & Co. (6th Cir. 1979), rev’d on other grounds 449 U.S. 383 (1981): Underscored that informed advocacy serves truth and justice; cited to reinforce the systemic function of privilege in the adversarial model.
• Minister of National Revenue v. Duncan Thompson (2016) SCC: Canadian apex court elevated solicitor–client privilege to a principle of fundamental justice; cited to situate privilege as integral to effective legal representation.
• M. V. Dabholkar (1975) 2 SCC 702; U.P. State Law Officers Association (1994) 2 SCC 204; U.P. Sales Tax Service Assn. (1995) 5 SCC 716: Recognize the public role and ethical responsibilities of lawyers—used to frame why privilege safeguards are central to the administration of justice.
• N. Yovus v. Immanuel Jose (Ker HC, 1995): On summoning opposing counsel as a witness and the ethical constraint (BCI Rule 13). Supports the Court’s caution that summoning counsel can jeopardize representation.
• Right to legal representation line:
  • M. H. Hoskot v. State of Maharashtra (1978) 3 SCC 544; Rakesh v. State of M.P. (2011) 12 SCC 513; Sheikh Mukhtar v. State of A.P. (2020) 19 SCC 178; Hussainara Khatoon (1980) 1 SCC 98 & 108: Article 21’s fair procedure includes effective legal assistance; Article 22(1) confers a right to counsel of choice; Article 39A obliges legal aid. These decisions anchor the Court’s view that coercive summons to defence counsel imperil constitutional guarantees.
• Sakiri Vasu v. State of U.P. (2008) 2 SCC 409; Vinubhai Haribhai Malaviya v. State of Gujarat (2019) 17 SCC 1: Magistrate’s power to monitor investigation recognized, but the Court clarifies that this does not translate into a pre-clearance regime for IO summons; instead, High Court oversight under Section 528 BNSS suffices.
• Gangaram v. Habib-Ullah (Allahabad HC, 1935); The Public Prosecutor v. M. S. Menoki (Madras HC, 1939); Chandubhai Jethabhai Desai (Gujarat HC, 1962): Production of documents is not covered by the advocate–client privilege; production orders go to the court, which decides objections/admissibility. Followed and approved by a three-Judge Bench in “Matter of Great Public Importance Touching upon the Independence of Judiciary” (2019) 19 SCC 405.
• Bar Council of India v. A.K. Balaji (2018) 5 SCC 379: “Practice of law” includes non-litigious advisory work; used to support that Section 132 covers non-litigious legal advice when given by an Advocate.
• Rejanish K.V. v. K. Deepa (2025 SCC OnLine SC 2196) (Constitution Bench): Clarifies BCI Rule 49; a full-time salaried employee cannot practice as an Advocate; informs the conclusion that in-house counsel are not “Advocates” for Section 132.
• Akzo Nobel v. European Commission (ECJ Grand Chamber, 2010): Holds that in-house lawyers lack “independence” comparable to external lawyers; legal professional privilege does not cover in-house communications in EU competition investigations. Cited with approval to emphasize structural differences that undercut independence.
• Panhandle Oil Co. v. Mississippi (277 U.S. 218) and McCulloch v. Maryland (1819): Quoted to illustrate that conceding a power does not make it absolute; here, the power to summon is not the power to destroy privilege.

Legal Reasoning

• Privilege as a systemic safeguard: The Court centers the advocate’s role as an “officer of the court” and the public function of the profession. Section 132’s privilege is a client’s right enforced through the advocate’s duty of non-disclosure. This right facilitates candid conferral, effective representation, and the adversarial search for truth.
• No extra-statutory guidelines: Unlike Vishaka (legislative vacuum) or Jacob Mathew (expertise gap), the statutory landscape already speaks. The problem is not absence of law but occasional overreach or ignorance. Remedy lies in enforcing existing statutes, not creating parallel procedures.
• Narrow exceptions, strict gatekeeping: Recognizing the statutory exceptions under Section 132, the Court crafts a procedural check within the police hierarchy (SP-level written satisfaction) and a judicial check (Section 528 BNSS review) to prevent misuse.
• Articles 14, 21, 22(1), 39A intersect: Coercive summons to counsel imperils fair trial rights and effective assistance of counsel; it also engages Article 20(3)’s principle against self-incrimination by preventing the State from achieving indirectly (through counsel) what it cannot from the accused.
• Documents vs. privileged communications: The Court preserves the long-standing distinction between testimonial privilege (non-disclosure by counsel) and compulsory production of documents/things to a court. This ensures courts—not IOs—adjudicate privilege objections and limit access to permissible scope, especially critical for digital devices that may hold other clients’ information.
• In-house counsel carve-out: BCI Rule 49 and Rejanish K.V. deny Section 132 status to in-house counsel as they are not “Advocates” practising independently. The Court further states that although a limited protection under Section 134 may apply to communications “made to the legal advisor of his employer,” that protection does not extend to communications between the employer and the in-house counsel.

What the Court Rejected and Why

• Peer-review committees (district/state/national) and magistrate pre-clearance: Rejected as counter-productive, extra-statutory, and liable to jeopardize clients’ rights by having disclosures tested without the client’s participation. The statutory regime already provides sufficient tools and checks.
• Dominant purpose test and preponderance standard (urged by the Bar): The Court did not adopt a new evidentiary standard tailored for summons to advocates; rather, it insists on fidelity to Section 132’s text and exceptions, subject to SP-level approval and High Court review.
• Absolute immunity: The privilege is robust but not absolute; communications in furtherance of illegality or observations of post-engagement fraud/crime are outside the privilege. The IO’s investigative powers remain intact within these boundaries.

Impact and Implications

• For Investigating Agencies:
  • No more generic summons to defence counsel “to know case facts.”
  • Any summons to an advocate requires: (a) a demonstrable Section 132 exception; (b) written SP-level satisfaction stating reasons; (c) acceptance that the summons is subject to High Court review.
  • For documents/devices, move the court under Section 94 BNSS; do not attempt direct rummaging of law office devices or broad fishing expeditions.
• For Lawyers and Clients:
  • Privilege protection now expressly covers non-litigious and pre-litigation advice by an Advocate.
  • On receiving an improper summons, promptly approach the High Court under Section 528 BNSS.
  • Digital hygiene in law practices becomes critical; courts will supervise device access to protect other clients’ confidences.
• For In-house Counsel and Corporates:
  • Section 132 privilege is not available to in-house lawyers; internal legal communications with in-house counsel lack that shield.
  • A limited protection under Section 134 may attach only in the specific manner stated by the Court (as to communications “made to the legal advisor of his employer”), but not for employer–in-house counsel communications. Corporate legal teams must recalibrate confidentiality protocols accordingly.
• For Courts:
  • High Courts are expected to exercise Section 528 powers to quash abusive summons and enforce privilege.
  • Trial and jurisdictional courts must implement the digital device protocol to cabin access, hear objections, and preserve non-target client confidences.
• For Special Statutes and Agencies:
  • Even where special enactments confer extensive investigative powers, they cannot be used to circumvent Section 132. The ED’s prior internal circular requiring Director-level approval aligns with the spirit of this judgment; agencies should harmonize their SOPs.

Complex Concepts Simplified

• What is “advocate–client privilege” under Section 132 BSA? It is a client’s right that bars the advocate from disclosing confidential communications, documents learned in the course of engagement, and the advice given—unless the client consents or a statutory exception applies. It covers both litigation and non-litigious legal advice by an Advocate.
• What are the Section 132 exceptions?
  • Client’s express consent (waiver);
  • Communications made in furtherance of an illegal purpose (e.g., planning to sue on a forged deed);
  • Facts observed during the engagement showing a crime/fraud occurred after engagement began (e.g., entries fabricated mid-trial).
  Confessing past guilt to a lawyer to seek a defence remains protected.
• Section 132 vs. Section 134:
  • Section 132 binds the advocate; it is a gag rule protecting client confidences.
  • Section 134 prevents compelling any person to disclose confidential communications with their legal adviser, subject to narrow exceptions if that person testifies and the court deems disclosure necessary to explain their evidence.
  The Court holds in-house counsel are outside Section 132; it recognizes a limited Section 134 protection in a qualified way, but not for employer–in-house counsel communications.
• Why are “documents” different? The privilege chiefly covers testimonial disclosure by the advocate. Production of documents/things can be compelled—but only via the court (Section 94 BNSS), which will decide privilege objections and admissibility (with judicial safeguards).
• Digital device protocol—why so strict? A lawyer’s device can contain multiple clients’ confidential data. To avoid collateral exposure:
  • Production is to the court;
  • Client and advocate (with their tech expert) must be present;
  • Access must be limited to the court-approved scope.
• Who is an “Advocate” for Section 132? Only a person enrolled and practising as an Advocate under the Advocates Act/BCI Rules—not a full-time salaried in-house legal employee (per Rule 49 and Rejanish K.V.).
• Judicial review under Section 528 BNSS: A swift route to the High Court to quash abusive or unlawful process (including improper summons to counsel) and to secure the ends of justice.

Practical Guidance and Checklists

For Investigating Officers

1. Do not summon an advocate simply to learn the facts of the case in which they appear or advise.
2. Summon an advocate only if:
   • You have concrete material showing a Section 132 exception applies; and
   • You obtain written approval from a superior officer not below SP, recording reasons and the precise exception.
3. Draft the summons to:
   • Explicitly state the Section 132 exception and factual basis;
   • Acknowledge that the summons is subject to Section 528 BNSS review.
4. For documents/digital devices:
   • Proceed under Section 94 BNSS to require production before the court;
   • Expect the court to hear objections, define scope, and cabin access—especially for digital devices.

For Advocates Receiving a Summons

1. Check if the summons:
   • Identifies a Section 132 exception with reasons; and
   • Mentions SP-level written approval.
2. If either is absent or defective, move the High Court under Section 528 BNSS to quash.
3. Maintain client confidentiality; do not volunteer privileged information absent client consent or a valid exception as determined by the court.
4. For device production, insist on court production and the presence/scope protections set out by the Supreme Court.

For Courts (On Production Orders/Device Access)

1. Ensure production is to the court (Section 94 BNSS) and objections are heard under Section 165 BSA.
2. For digital devices:
   • Notify the client and advocate;
   • Permit a defence-selected tech expert to be present;
   • Define and limit the scope of access strictly to what is necessary;
   • Protect other clients’ confidential data from exposure.

For Corporate Legal Teams

• Recognize that in-house counsel communications do not attract Section 132.
• Review internal protocols: consider using independent Advocates for sensitive advisory work where privilege is critical.
• Map what (if any) communications may attract limited Section 134 protection, noting the Court’s restriction excluding employer–in-house counsel exchanges.

Open Questions and Future Developments

• Scope of Section 134 for in-house counsel: The judgment’s direction 4.1 articulates a narrow and somewhat unusual contour—limited protection relating to communications “made to the legal advisor of his employer,” but not for employer–in-house counsel communications. Future cases may refine this nuance.
• Special statutes/search powers: While this ruling binds general investigative practice, interactions with search and seizure regimes under special laws (e.g., PMLA, competition law) may generate further guidance, though the core principle—that privilege under Section 132 cannot be bypassed—stands.
• Agency SOPs: Expect alignment of ED/CBI/state police manuals to mirror SP-level approval and reasoned exceptions; deviations will be vulnerable under Section 528 BNSS.

Conclusion

The Supreme Court has fortified the advocate–client privilege as a cornerstone of India’s adversarial justice system and an extension of constitutional guarantees. It closes the door on the troubling practice of IOs summoning defence counsel to “know the facts” of their clients’ cases. Summons to advocates are now limited to the narrow statutory exceptions in Section 132 BSA, and even then, only after SP-level written approval and with reasons. High Courts must vigilantly police abuses under Section 528 BNSS. The Court also provides clear, court-centered protocols for production of documents and digital devices to protect other clients’ confidences. Finally, it clarifies that in-house counsel do not fall within Section 132’s protective ambit—reflecting their distinct regulatory and structural position under Indian law—while indicating a limited, carefully framed application of Section 134.

This judgment strikes a careful balance: it preserves legitimate investigative power while ensuring that the privileges integral to effective legal representation are not eroded. The message is unambiguous: the power to summon is not the power to penetrate privilege, and as long as constitutional courts sit, the sanctity of advocate–client confidentiality endures.