By Sujit Bhar
In an extraordinary and deeply worrying development, Chief Justice of India BR Gavai has initiated suo motu proceedings to examine a dangerous trend—investigative agencies, particularly the Enforcement Directorate (ED), summoning senior advocates for questioning in relation to the legal advice they offer to their clients facing criminal prosecution. This act of overreach strikes at the very heart of India’s democratic and judicial fabric and threatens to upend long-standing constitutional principles, including the right of an accused to legal representation, and the advocate’s fundamental right to practise their profession.
The essence of a democratic society rests on the rule of law, and central to this principle is the right of every individual—no matter how reviled or notorious—to be defended in a court of law. The lawyer’s role, therefore, is sacrosanct, acting as a mediator between the citizen and the State. When investigative agencies begin to summon lawyers under the pretext of gathering evidence about the legal advice they offer, it signals not only a deep misunderstanding of legal privilege, but also a coercive misuse of state power.
The recent issuance of summons to Senior Advocates Arvind Datar and Pratap Venugopal by the ED—later quietly withdrawn—illustrates the chilling effect such actions can have. These advocates were not accused of wrongdoing; they were targeted solely for legal advice rendered to their clients. The Bar Association of India (BAI), which includes as patrons the Attorney General of India, R Venkataramani, described the development as “dangerous and disturbing” and called it an “egregious example of overreach.” The BAI’s statement rightly emphasized that such actions could discourage legal professionals from defending individuals who are being investigated, regardless of their legal standing or presumption of innocence.
FUNDAMENTAL RIGHTS AT STAKE
The issue here transcends individual incidents. It is about the preservation of constitutional protections, notably:
Article 14 (Equality before the law): If certain accused persons are unable to find representation because lawyers fear reprisals from state agencies, then the right to equality stands violated.
Article 19(1)(g) (Right to practice any profession): Summoning lawyers for offering legal opinions threatens their right to earn a livelihood and practice their chosen profession without fear.
Article 21 (Right to life and personal liberty): The right to legal representation is an intrinsic component of a fair trial, which itself is protected under Article 21.
These constitutional guarantees are not mere abstractions; they are the scaffolding upon which the Indian legal system is built. Undermining them strikes at the rule of law and moves us closer to a police state.
Such actions by the ED appear to be part of a wider pattern where the boundaries between investigation and intimidation blur. By summoning legal counsels, the agency sends a warning not just to the specific lawyer involved, but to the entire legal fraternity: tread carefully, or be prepared to face State scrutiny. This tactic not only interferes with the lawyer-client relationship—protected under advocate-client privilege—but also weakens the defence’s ability to build its case fearlessly.
In high-profile cases, especially those involving financial crimes, political dimensions often enter the equation. If lawyers start fearing backlash for representing certain clients, it will create a dangerous vacuum where only government-approved defence is allowed—a situation not too far from the practices in authoritarian regimes.
GLOBAL STANDARDS AND PRECEDENTS
In mature legal systems around the world, the sanctity of legal representation is zealously guarded.
United States: The attorney-client privilege is one of the cornerstones of American jurisprudence. The privilege protects communications between attorneys and their clients from disclosure, even during investigations. The US Supreme Court has repeatedly ruled that any attempt to breach this privilege without overwhelming evidence of criminal complicity on the part of the lawyer is unconstitutional. In fact, during the Watergate scandal, the United States vs Nixon (1974) case affirmed that while executive privilege has limits, so does the government’s power to pry into legal advice given in confidence.
United Kingdom: The UK upholds the Legal Professional Privilege (LPP) as a fundamental right. The House of Lords in R vs Derby Magistrates’ Court, ex parte B (1996) unequivocally held that the confidentiality between a lawyer and client is inviolable. There is no exception unless the lawyer is actively complicit in the crime. Even then, specific legal procedures must be followed before initiating any such action.
European Union: The European Court of Human Rights (ECHR) has consistently ruled that any interference in legal counsel’s independence or client confidentiality is a violation of Article 6 of the European Convention on Human Rights (right to a fair trial). In Michaud vs France (2012), the Court held that even indirect pressure on lawyers could undermine the right to a fair trial.
In contrast, India’s recent situation reflects a disturbing regression. The absence of clear boundaries in law enforcement practices allows this misuse of power.
NEED FOR JUDICIAL INTERVENTION
Given the gravity of the situation, the intervention by CJI Gavai is both timely and necessary. The upcoming hearing on July 14 could be a watershed moment for the Indian legal profession and the constitutional rights of its citizens. The top court is expected to establish unambiguous guidelines, such as:
- Affirm the sanctity of advocate-client privilege as an extension of the right to legal defence and personal liberty.
- Prohibit summoning of advocates solely for rendering legal advice unless there is prima facie evidence of their involvement in the crime.
- Impose penalties or contempt proceedings against investigating officers or agencies who misuse their authority to intimidate legal professionals.
- Mandate internal review mechanisms within agencies like the ED to scrutinize the necessity and legality of summoning advocates.
- Protect the anonymity of legal strategies submitted in good faith, even during investigation stages.
THE ROLE OF THE BAR AND SOCIETY
The legal fraternity must close ranks against such attacks. Bar Councils, legal associations, and senior counsels need to speak in one voice, not just for their own protection, but to safeguard the independence of the judiciary. A threat to one advocate is a threat to all.
One must appreciate the involvement of the civil society at large in this issue, because it is the citizens, who would be bearing the brunt of it all in the end. Civil society must remain vigilant. If the public remains indifferent while lawyers are harassed, tomorrow it could be journalists, academics, or activists. What’s at stake here is the principle of dissent, defence, and due process.
India stands at a critical juncture. With expanding State powers under new laws—often justified in the name of national security or economic integrity—the checks and balances offered by a vibrant judiciary and a fearless bar have become more crucial than ever.
Summoning lawyers for merely doing their job is not investigative rigour—it is institutional bullying. The Supreme Court must not merely admonish this practice; it must annihilate its very possibility. Anything less would erode the public’s faith in the impartiality of justice and weaken the foundation of India’s constitutional democracy.
One has to remember that in India even the most heinous criminal is entitled to legal defence. To attack the defender is to corrupt the very notion of justice.