Safeguarding Advocates' Professional Privilege: A New Precedent from AJIKUMAR K.K v. THE STATE OF KERALA

Introduction

The judgment in AJIKUMAR K.K v. THE STATE OF KERALA delivered by the Kerala High Court on March 27, 2025, represents a significant development in legal practice regarding the intersection of criminal investigation procedures and the professional privileges enjoyed by advocates. The case was brought by AJIKUMAR K.K, a practising advocate, who challenged the issuance of a police notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The notice ordered him to appear before the investigating officer in relation to a criminal case involving his clients. The core issues involve the limits of police power in summoning professionals and the inviolability of the confidential communication between an advocate and his client.

On one side, the petitioner argues that using his professional capacity in the investigation improperly interferes with his client’s right to fair representation and violates established statutory and constitutional protections. On the other side, the police maintained that the summons was issued as part of a broader investigation into documents allegedly forged by the accused. This case presents a conflict between the police's investigatory powers and the strict safeguards placed around privileged attorney-client communications.

Summary of the Judgment

The Kerala High Court examined the validity of the police-issued Ext.P3 notice under Section 35(3) of BNSS, which was directed at the petitioner. The court held that the issuance of the notice was ultra vires, illegal, and constituted an abuse of the statutory powers. It clarified that the police’s authority under Section 35(3) is limited to circumstances where there is reasonable suspicion that an individual has committed a cognizable offence, not to summon an advocate in his professional capacity.

The judgment noted that the petitioner, who had already submitted the requisite documents before the Court during the bail hearing of his clients, could not be compelled to divulge privileged communications protected under Section 132(1) of the Bharatiya Sakshya Adhiniyam, 2023 (BSA). The court further emphasized that any attempt by the police to involve an advocate in the investigation by compelling disclosure of such confidential communications infringes upon the advocate’s professional rights guaranteed by the Advocates Act, 1961 and Article 19(1)(g) of the Constitution. Although the police subsequently withdrew the contested notice, the judgment provides clear guidance on the misuse of Section 35(3) of BNSS.

Analysis

Precedents Cited

The court’s decision was heavily informed by several key precedents. Notably:

Arnesh Kumar v. State Of Bihar and Another [(2014) 8 SCC 273]: This landmark case underscored that police powers under summons provisions should be used strictly, preventing any abuse which might lead to harassment. The higher judiciary warned against the misuse of procedural notices against individuals, especially when it comes to invoking arrest powers.
Satender Kumar Antil v. Central Bureau of Investigation & Another [(2022) 10 SCC 51]: The judgment in this case reiterated the necessity for law enforcement officers to adhere to statutory mandates under Sections 41 and 41 A of the Criminal Procedure Code (Cr.P.C), which are analogous to Sections 35(1) and (3) of the BNSS. This ensures that the rights of suspects and other individuals are not infringed upon without sufficient cause.
Unnimon K.A. v. State of Kerala and Others (2020): The Kerala High Court had earlier cautioned against the selective harassment of individuals through misuse of statutory powers, particularly when such actions encroach upon constitutional and professional privileges.

These cases collectively provided the legal foundation for scrutinizing the issuance of the notice. The court relied on these precedents to reinforce the argument that any action empowering the police to summon individuals must strictly conform to constitutional guarantees and due process, particularly when targeting professionals such as advocates.

Legal Reasoning

The court’s legal reasoning is grounded in the principle that the police’s investigatory powers cannot compromise the essential rights related to legal representation and confidentiality. It underscored the following points:

Specificity of Section 35(3) of BNSS: This section permits only summoning suspects or accused individuals when there is a reasonable basis to believe they have committed a cognizable offence. The petitioner, being an advocate acting in his professional capacity, does not fit this category.
Protection of Privileged Communication: The judgment reiterates that communications between an advocate and his client enjoy confidentiality under Section 132(1) of the BSA. The police cannot compel an advocate to break this privilege, as doing so would undermine the fundamental right to a fair trial and the integrity of the legal profession.
Prevention of Abuse of Powers: Citing Arnesh Kumar and Satender Kumar Antil, the court emphasized that police powers, when misapplied, can lead to harassment and the erosion of individual freedoms. The notice in the present case was judged illegal on the grounds that it was an attempt to use investigative tools as a means to indirectly involve an advocate in client communications.

Overall, the court’s reasoning pivots on balancing the investigative needs of the police with the imperative to preserve transactional confidentiality and professional autonomy. Given that the petitioner had already complied with document submission before the Court, the additional summons under Section 35(3) was seen as unjustified and potentially retaliatory.

Impact

The implications of this judgment are far-reaching. By firmly delineating the boundaries for police intervention in cases involving legal professionals, the decision:

Strengthens Advocate Privilege: Future cases will benefit from a reinforced interpretation of professional confidentiality. Advocates can now rely on this precedent to resist undue pressure from law enforcement to reveal client communications.
Limits Misuse of Statutory Powers: The ruling serves as a cautionary note to enforcement agencies to exercise their powers within the ambit of statutory and constitutional restrictions. Any deviation might not only lead to procedural reversals but could also invite disciplinary actions against the offending officers.
Enhances Judicial Oversight: The judgment reinforces the role of the judiciary as a check against state overreach, particularly in areas where individual rights, such as the freedom to practice law, come under threat.

The decision is likely to influence the manner in which police officers interpret and invoke Section 35(3) of BNSS, ensuring that summoning notices are issued only when genuinely warranted by the facts of a case.

Complex Concepts Simplified

Certain legal terminologies and principles arising in the judgment warrant simplified explanations:

Ultra Vires: A Latin term meaning "beyond the powers." In this context, it indicates that the police notice was issued beyond the legal powers conferred by the BNSS.
Cognizable Offence: An offence for which police are authorized to make an arrest without a warrant and can commence an investigation with or without the permission of a court.
Section 35(3) of BNSS: A provision that allows police to summon a person (typically a suspect) to appear for questioning if there is credible evidence or reasonable suspicion of their involvement in a crime. Its misuse against professionals like advocates undermines legal protections.
Advocate-Client Privilege: A legal concept ensuring confidentiality in communications between a lawyer and their client. This privilege is essential for a fair legal process.

Conclusion

In conclusion, the judgment in AJIKUMAR K.K v. THE STATE OF KERALA serves as a critical safeguard for the legal profession. It clearly establishes that police powers under Section 35(3) of BNSS:

May not be employed to summon an advocate in his professional capacity,
Must be exercised only when there is reasonable suspicion of an individual having committed a cognizable offence,
And must respect the sanctity of confidential communications between an advocate and his client.

This judgment not only reinforces procedural safeguards but also upholds the rights enshrined in the Advocates Act, 1961 and the Constitution. By delineating clear boundaries for law enforcement, the Court has ensured that the fundamental right to legal representation is not compromised. As a result, this ruling is expected to shape future jurisprudence by preventing the misuse of statutory provisions to target legal practitioners, thereby preserving the integrity of the judicial process and the advocacy profession.