Listen to this post
Whose Privilege is it anyway?: A critique of the recent Supreme Court Judgment on Attorney-Client Privilege

Summary: In a landmark judgment, the Supreme Court has reinforced the constitutional and statutory foundation of attorney-client privilege. The article offers a deeper dive into the judgment’s implications and its potential impact on legal practice in India.

Absent privilege, could the legal and constitutional rights granted to a person be diluted by consulting their legal counsel? There is the theoretical question of whether a person can walk out of his counsel’s office with a defaced privilege, which he had intact, when he walked into it?

This, in part, was considered by the Supreme Court (“Court”) in Suo Motu Writ Petition (Criminal) No. 2 of 2025. The Court delivered a landmark judgment clarifying the scope of legal professional privilege and the limits of powers of investigating agencies. The Court established safeguards to ensure that investigating agencies do not arbitrarily interfere with attorney client privilege.

Link to Background Background

The matter originated from an FIR at Odhav Police Station regarding a loan agreement dispute. After arrest, the client’s Advocate filed a bail application before the Sessions Judge at Ahmedabad, which was granted.

The investigating officer issued a notice under Section 179 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), directing the Advocate’s appearance within three days to ‘know true details of the facts and circumstances after making your inquiry’. The Advocate challenged the summons, arguing that they violated fundamental rights. However, the High Court rejected the challenge, finding no fundamental rights’ violation.

The Court identified four broad issues which were considered in the judgment:

  • Can the investigating agency/prosecuting agency/police directly summon a lawyer for questioning?
  • If investigators believe a lawyer’s involvement goes beyond legal representation, can the agency summon the lawyer directly or should judicial oversight be prescribed?
  • Does privilege available to Advocates under Section 132 of the Bhartiya Sakshya Adhiniyam, 2023 (“BSA”), extend to in-house counsel employed by a company?
  • Does the same protection extend to documents and digital devices such Advocates may possess?

Link to Constitutional and Statutory Foundation Constitutional and Statutory Foundation

  • The arguments made before the Court and the underlying statutory provisions merit consideration: 
    • Intervention applications filed by individual Advocates and associations, challenged the summoning of lawyers on constitutional grounds.
    • They argued that such summons violate Article 19(1)(g), which protects the right to practice any profession, and Article 21, which ensures the right to life and personal liberty – read conjointly, these provisions provide the right to a counsel when life and liberty are at risk; and the right against self-incrimination under Article 20(3).
    • Furthermore, Article 22(1) guarantees the right to consult and be defended by a chosen lawyer, while Article 39-A goes further, requiring state-sponsored legal aid for those who cannot afford it.
  • Since Advocates under the Bar Council of India Rules have a professional duty to represent clients, and are obligated to accept briefs and provide the best defence to their clients, within the bounds of law,it was argued that if lawyers are arbitrarily summoned and pressured to reveal client confidences, these constitutional protections will become meaningless.
    • Statutory Protection
      • Section 132 of the BSA, which is a time-tested provision corresponding to Section 126 of the Indian Evidence Act, 1872, imposes a duty on Advocates to keep client communications confidential. This privilege can only be waived with the client’s express consent or in very limited circumstances[1] — (a) communications made to further illegal purposes, and (b) facts showing that a crime or fraud has been committed after commencement of service.
      • The privilege protections in Sections 132-134 of BSA serve a dual purpose: they protect the client’s interests while also providing immunity to lawyers from being forced to make disclosures, allowing them to meaningfully represent their clients.

    Verdict

    Having considered the arguments and provisions above:

    1. On the question of power to summon advocates, the court held:
      • The investigating officer/police must independently gather evidence; they cannot directly summon lawyers to seek information about their cases.
      • If investigators believe one of the exceptions under Section 132 apply, they must follow due procedure by specifically mentioning the exception in the summons and get written approval from a Superintendent of Police or an officer of higher rank.
    2. On the question of guardrails around the power to summon, the Court determined that Section 528 of the BNSS provides sufficient judicial oversight, according to which any summons must explicitly state applicable exceptions, allowing lawyers to challenge these before courts. This creates a meaningful check on investigative power.
    3. The Court, as an ancillary point, also assessed whether such privilege would be available to in-house counsel. It distinguished between independent Advocates and in-house counsel as follows:
      • Who is an “Advocate”: The Court drew upon its 1994 judgment,[2] to reiterate the distinction between independent practicing advocates and employed legal counsel. Under the Advocates Act 1961, only those enrolled in the State Bar Council can practice as advocates, while lawyers who accept full-time employment must inform the Bar Council and cease practicing as advocates. Failure to do so results in being struck off the rolls.[3]
      • Why employment status matters: Referencing European jurisprudence,[4] the Court explained that legal professional privilege is subject to two conditions: firstly, communications must pertain to a client’s right of defence, and secondly, it must come from independent lawyers not bound by employment relationships.

    In the Courts view, privilege does not extend to in-house counsel because:

    • They face inherent conflicts – as full-time employees, they may be required to handle commercial tasks that create close ties with their employer.
    • They do not enjoy the independence from their employer as external legal counsels do, leading to less effectively dealing with conflicts arising from professional obligations and the client’s aims. Hence, even though they may be enrolled in the State Bar, their circumstances are not comparable to that of external legal advisors. [5]

    In the Court’s view, full-time employees’ advice is inevitably shaped by their employer’s commercial interests.

    • Hence, it was concluded that in-house counsels are not eligible for protection under Section 132 of the BSA as they are not Advocates. The Court clarified that while they do get some protection under Section 134[6] for communications between them and external legal advisors engaged by their employers, this protection falls away as soon as they in-turn discuss such communications with their employer.

    On the subsidiary question of legal protection for documents and digital devices of Advocates, the privilege regime is significantly weaker. The Court discussed both matters as follows:

    • Section 126 of the Indian Evidence Act, 1872, safeguards against disclosing the contents of the documents that lawyers become aware of during their engagement, but it does not protect document production itself. Since a client cannot refuse to produce a document, neither can their lawyers who receive it from the client.
    • Digital devices, if required, can only be produced before a court, and not directly to the investigators; and must adhere to the following protocol:
      • The court must give notice to affected parties and hear objections before allowing any examination;  
      • If examination is permitted, it must happen in the presence of the lawyer and affected party, with technical assistance of their choice;
      • Crucially, information regarding other clients must be preserved, and examination must be limited to what investigators specifically seek and what the court finds permissible and admissible.

    The Controversial Distinction and Practical Challenges

    1. In the Court’s opinion, the differential treatment of independent Advocates and in-house counsel is not unconstitutionally scrutiny, since in-house counsel hold a fundamentally different position compared to external lawyers.
    2. While the Court’s reasoning follows European jurisprudence, the distinction between independent Advocates and in-house counsel raises some constitutional questions. Article 14 guarantees equality before law and equal protection of the laws, and the differential treatment creates what may be an arbitrary classification that fails the rational nexus test. The privilege fundamentally protects the client’s constitutional right against self-incrimination and the right to legal representation.
    3. Constitutional protections should be independent of the employment status of one’s chosen legal advisor. If an independent lawyer on permanent retainer enjoys full privilege while performing identical advisory functions, the distinction based solely on employment relationship appears arbitrary since both employee and external counsel receive remuneration.
    4. In-house counsels are not considered officers of the court, but this alone should not exclude them or their employers from privilege protection that is otherwise available to Advocates, particularly when the fundamental purpose of attorney-client privilege is to protect the client’s constitutional rights rather than to confer benefits based on the lawyer’s professional status.
    5. The effectiveness of the right to counsel hinges on the client’s ability to communicate freely with their attorney. Advocates must be fully apprised of facts to effectively represent and assist their clients and support the proper functioning of the adjudicatory system, and objectives are equally applicable whether the counsel is employed or retained.
    6. Paradoxically, the very factors that supposedly undermine in-house counsel’s independence – economic dependence, inability to ignore employer’s commercial strategies, vulnerability to pressure – actually make privilege protection more necessary, not less. If in-house counsels are more susceptible to coercion because of their employment, stronger statutory safeguards are needed, not weaker ones.
    7. Denying privilege protection to lawyers most susceptible to pressure establishes a hierarchy of constitutional rights, forcing clients to choose between organisational efficiency and constitutional protection. Especially considering that in-house counsels serve as strategic partners involved in risk reward assessment and as conscious keepers when faced with potential ethical dilemmas.

    Link to Conclusion Conclusion

    1. In summary, by prohibiting direct summoning of advocates and mandating judicial oversight, the judgment represents a significant victory for the legal profession’s independence and the constitutional right to effective legal representation.
    2. While legal privilege and confidentiality should logically and reasonably extend to all legal advisors irrespective of their employment status, in view of the distinction created by the judgment in privilege afforded to Advocates and in-house counsel, sophisticated entities should consider how to structure their legal advisory models. Organisations must now be mindful of their communication strategies and engage third-party Advocates, based on the gravity and sensitivity of the issue.
    3. This decision reinforces that lawyers cannot be treated as extensions of the investigative machinery, instead they must continue serving the broader public interest in maintaining meaningful legal representation.

    [1] No Advocate, shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his service as such Advocate, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional service, or to disclose any advice given by him to his client in the course and for the purpose of such service.

    Provided that nothing in this section shall protect from disclosure of –

    (a) any such communication made in furtherance of any illegal purpose;

    (b) any fact observed by any advocate, in the course of his service as such, showing that any crime or fraud has been committed since the commencement of his service;

    [2] State of U.P. and Ors. v. U.P. State Law Officers Association & Ors. (1994) 2 SCC 204;

    [3] Rule 49 of Chapter 2 Part VI of the Bar Council of India Rules;

    [4] Akzo Nobel Limited v. European Commission Case C-550/07 P;

    [5] Akzo Nobel Limited v. European Commission Case C-550/07 P;

    [6] No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others.