Supreme Court Calls For Clear Guidelines On ED Summons To Lawyers | Even If Advice Is Wrong It Is Privileged Communication
Kiran Raj
The Supreme Court on July 21 urged the need for clear guidelines to regulate the summoning of lawyers by the Enforcement Directorate (ED) and other investigating agencies for legal advice provided to clients in criminal cases. A three judge bench comprising Chief Justice of India (CJI) BR Gavai, Justice K Vinod Chandran, and Justice NV Anjaria was hearing the suo motu case titled "In Re: Summoning Advocates Who Give Legal Opinion or Represent Parties During Investigation of Cases and Related Issues."
The controversy stems from recent ED actions that sparked outrage within the legal community. The agency had issued summons to Senior Advocates Arvind Datar and Pratap Venugopal over legal opinions they provided. Following strong protests from bar associations, the ED withdrew the summons and issued a circular mandating that no lawyer shall be summoned without prior permission from the ED Director.
At the outset of the hearing, the bench was informed of this circular. One counsel warned of the chilling impact such summons could have on the independence of the legal profession. “Otherwise it will have a chilling effect on the whole justice delivery system. Lawyers will not be able to freely advise my lords,” he said. Another counsel added, “Advice can be right or advice can be wrong…”
CJI Gavai intervened, asserting, “Even if it is wrong, it is a privileged communication. How can you be summoned by ED for that? For all these matters, there should be some guidelines.”
Senior Advocate Vikas Singh, President of the Supreme Court Bar Association, expressed concern that India must avoid the path taken by countries that suppressed legal independence. “My lords may set it down once and for all, because the European Commission on Human Rights has also something to say. In Turkey, the entire Bar Association was disbanded. China also faced similar… so we should not be going that way, my lords.”
Attorney General for India R Venkataramani, appearing for the Union, admitted that the ED’s move was erroneous. “I had a word, what is happening is certainly wrong,” he stated.
Solicitor General (SG) Tushar Mehta clarified that he was not taking an adversarial stance but argued that a deliberate narrative was being built against the ED. “As far as general observations are concerned, sometimes misconstrued, depending upon individual cases. I am saying this, not the ED, there is a concentrated effort to create a narrative against an institution. My lords may find in a few cases where there is overstepping, My lords will obviously—”
CJI Gavai interrupted, remarking, “We are finding this in many cases, it's not like we are not finding (overstepping).”
The SG urged the court not to be influenced by media narratives. “Please do not… based on interviews and YouTube—there is narrative building going on,” he said. However, the CJI strongly disagreed, stressing that the bench’s observations arise solely from its judicial experience. He also referred to politically sensitive cases, including the plea for criminal contempt against West Bengal Chief Minister Mamata Banerjee and the challenge to quash the criminal case against BJP MP Tejasvi Surya.
The CJI criticized the ED’s practice of filing appeals indiscriminately. “The ED, even after well-reasoned orders are passed, is filing appeal after appeal only for the sake of filing them,” he observed. SG Mehta responded that narrative-building begins even before cases reach court, suggesting that lawyers representing clients should also avoid shaping narratives outside the courtroom.
Justice Chandran, rejecting SG’s argument, remarked, “How do you say that these narratives will influence us if we do not see them at all? Narratives will go on all over, people might be concerned, but you cannot say that we have been influenced by it.”
CJI added, “Have you seen any of the judgments authored by us in which the decision is not based on the facts of the case? Name one judgment.”
The bench clarified that its present focus was solely on the issue of summoning advocates by the ED and not on any broader allegations. “Ultimately, we all are lawyers,” CJI noted, emphasizing that the cognizance taken should not be viewed as adversarial.
SCAORA President Vipin Nair informed the bench that Senior Advocate Arvind Datar, who was abroad in Spain when he received the ED summons, was deeply shocked. It was highlighted that the incident had a traumatizing effect on the legal fraternity. SG Mehta stated that as soon as he became aware of the development, the matter was brought to the highest executive authority, leading to the issuance of a withdrawal circular within six hours.
Vikas Singh stressed that the issue extended beyond any particular lawyer, pointing to a troubling trend. SG Mehta referred to a case where a lawyer allegedly provided telephonic advice on how to dispose of a dead body. Singh responded that such criminal conspiracies are explicitly excluded from privilege under Section 126 of the Evidence Act.
The matter is now listed for hearing on July 29. The bench has directed counsels to file comprehensive notes and permitted intervention applications.
The suo motu case originated after a bench of Justice KV Viswanathan and Justice NK Singh raised concerns about the practice of police and investigative agencies summoning advocates. This arose from a case where Gujarat Police summoned a lawyer representing an accused. The bench stayed the notice to the lawyer, warning that such actions undermine the independence of the legal profession and impede the fair administration of justice. Consequently, a suo motu case was registered on July 4.
Case Title: IN RE : SUMMONING ADVOCATES WHO GIVE LEGAL OPINION OR REPRESENT PARTIES DURING INVESTIGATION OF CASES AND RELATED ISSUES
Case No: SMW(Crl) No.-000002-000002 – 2025
Bench: Chief Justice BR Gavai, Justice K Vinod Chandran, and Justice NV Anjaria
