India

By Abdullah Hussain, Kanika Chaudhary Nayar & Ishan Handa   A Privilege Reaffirmed The recent judgement of the Supreme Court of India in Re: Summoning Advocates who give legal opinion[1] is not merely a legal ruling; it is a profound jurisprudential restatement of the very foundations of a robust justice delivery system. At its heart, the case concerned a seemingly innocuous notice issued by the Ahmedabad Police under Section 179 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, to an advocate who had secured bail for his client. The notice peremptorily directed the advocate to appear ‘to know true details of the facts and circumstances’ of the case. The Supreme Court, exercising its suo motu powers, seized the issue, recognising that the casual summoning of counsel by investigating agencies strikes at the root of attorney-client relationship, a relationship that the Apex Court has previously[2] described as one of “trust and confidence”. The resulting judgement is a powerful reaffirmation of legal professional privilege (LPP) in India.   For practitioners in the complex and high-stakes arena of competition law, this judgement carries particularly significant weight. It fortifies the defences around client communications at a time when the investigative powers of regulators, including the Director General (DG) under the Competition Act, 2002, are increasingly expansive.   The Core of the Supreme Court’s Ruling: A Multi-Layered Shield The Court’s judgement meticulously dismantles the arguments for unbridled power to summon lawyers and, in doing so, erects a multi-layered shield to protect privileged communications. The Primacy of Section 132, BSA: The Court unambiguously held that the privilege under Section 132 of the Bharatiya Sakshya Adhiniyam (BSA), 2023, is a statutory mandate. No advocate can be compelled to disclose any communication made to him in the course and for the purpose of his/her professional engagement, unless such disclosure falls within the following narrow exceptions: Express consent of the client; Communication made in furtherance of an illegal purpose; or A fact observed showing the commission of a crime or fraud after the commencement of the engagement. The Court emphasised that this privilege, though conferred on the client, grants the advocate an immunity from coercion to disclose. It is not a mere procedural rule but a substantive right integral to the administration of justice.   A Resounding ‘No’ to Fishing Expeditions: Answering the first core question before it, the Court declared with an emphatic ‘No’ that an investigating agency cannot directly summon a lawyer ‘to elicit the details of the case’. Such an act is an ‘abject failure of the investigating agency’ and a blatant attempt to breach the ‘solemn privilege’ under Section 132.   Procedural Safeguards for Invoking Exceptions: Recognising that the exceptions could be misused, the Court instituted crucial procedural filters. If a summons is to be issued based on an exception (e.g., alleging the lawyer's involvement in a crime), it must: Explicitly state the facts justifying the invocation of the exception; Receive prior written approval from a hierarchical superior not below the rank of a Superintendent of Police, who must record their satisfaction in writing.   Robust Judicial Review: Any such summons is expressly made ‘amenable to judicial review’ under Section 528[3] of the BNSS. This provides an immediate and effective remedy for an aggrieved advocate or client.   Clarification on Documents and Digital Devices: The Court made a vital distinction between the disclosure of communication (protected) and the production of documents (not protected per se). However, it built in robust safeguards: A direction to produce documents must be complied with by production before the Court, not the investigating officer; The court must then decide on any objections regarding admissibility and privilege after hearing the client and the advocate; For digital devices, which contain a treasure trove of data concerning multiple clients, the process is even more rigorous. The device can only be examined in the presence of the advocate and the client, with the assistance of a digital expert of their choice, and the court must ensure the confidentiality of data relating to other clients is not impaired.   The Unfortunate Exclusion of In-House Counsel: In a significant, albeit contentious, part of the judgement, the Court held that in-house counsel, being full-time salaried employees, do not qualify as ‘Advocates’ under the Advocates Act, 1961, and are thus not entitled to claim the privilege under Section 132, BSA. Relying on its Constitution Bench ruling in Rejanish K.V. v. K. Deepa[4] and the reasoning of the European Court of Justice in Akzo Nobel[5], the Court found that in-house counsel lack the requisite degree of independence from their employer, being influenced by ‘commercial strategies’ and ‘close ties’. This creates a stark dichotomy between the protection afforded to external and internal legal advice, a point we will revisit in the competition law context.   III. The Ghost of the Competition (Amendment) Bill, 2020 This Supreme Court judgement must be viewed against the backdrop of a recent legislative attempt that sent shockwaves through the competition law community. The Competition (Amendment) Bill, 2020, proposed a radical amendment to Section 41 of the parent Act. The existing Section 41 empowers the DG, while investigating a contravention of the Act, to summon and enforce the attendance of any "person", examine them on oath, and compel the production of documents and records. The 2020 Bill sought to add an explanation stating that the term ‘person’ for the purposes of this section ‘shall include an advocate, a chartered accountant, a company secretary, and a cost accountant’. The intent was unambiguous: to arm the DG with the explicit power to question legal advisors and compel them to provide evidence, potentially including their communications with clients during a dawn raid or investigation. The pushback from the industry bodies and legal experts was swift and severe. The proposal was criticised as a direct assault on LPP, which would fundamentally undermine the ability of companies to seek frank and candid legal advice on complex competition law issues such as merger control, leniency applications and compliance programmes. It was argued that such a power would place Indian businesses at a severe disadvantage compared to jurisdictions that fiercely protect LPP. Facing this staunch opposition, the government, in its wisdom, withdrew this specific proposal before the Bill was passed as the Amendment Act in 2023.   The Supreme Court's judgement in Re: Summoning Advocates effectively slams the door shut on any future resurrection of such a proposal. By grounding the privilege in statutory interpretation, the Court has made it clear that any statutory amendment that seeks to casually abrogate LPP would face an insurmountable constitutional challenge. Implications for Competition Law Investigations: A New Fortress The principles laid down by the Supreme Court have direct and immediate application to the conduct of competition law investigations in India. Dawn Raids and On-Site Inspections: During a dawn raid, DG officials have the power to search premises and seize documents. It is common practice for companies to immediately involve their external legal counsel. This judgement empowers counsel to firmly resist any attempts by the DG to question them about the advice they have provided to the company regarding the investigation or the underlying conduct. Any such questioning would fall squarely within the prohibited realm of seeking ‘details of the case’ from the advocate.   Summons to External Lawyers: The DG can no longer issue a routine summons to an external competition lawyer who is advising a company under investigation, seeking their version of events or their understanding of the client's conduct. The Supreme Court's ‘emphatic No’ applies with full force. If the DG believes that the lawyer is no longer merely an advisor but a participant in a cartel or a fraud (e.g., drafting a sham agreement to conceal a cartel), the heavy burden is on the DG to first satisfy the procedural requirements, recording specific facts and obtaining high-level internal approval, before a summons can even be issued.   Seizure of Legal Communications: The judgement provides strong ammunition to challenge the seizure of documents and emails between a company and its external lawyers. While the DG may seize a document physically, its admissibility and the ability to use it as evidence can be contested on grounds of LPP.   The Persistent Vulnerability of In-House Counsel: This remains the Achilles’ heel for corporations. The Supreme Court's denial of Section 132 privilege to in-house counsel means that communications with internal legal teams enjoy a significantly lower level of protection. The DG is on far firmer ground to summon an in-house counsel for questioning and to seize their internal communications and notes. This reinforces the critical best practice for companies: sensitive legal advice, particularly on competition law compliance, cartel risks, and leniency strategy, must be sought from and documented in communications with external counsel. Internal legal advice should be framed with the understanding that it may not be privileged from disclosure to the DG.   A Comparative Lens: The Enduring Dichotomy and the Indian Echo of Akzo Nobel The Indian Supreme Court’s reliance on the Akzo Nobel ruling of the European Court of Justice reveals a deliberate alignment with a well established international position on legal professional privilege. In the EU, as in India, the decisive factor is not the nature of the legal advice given, but the status of the advisor. The core reasoning, consistently upheld, is that in-house lawyers, by virtue of their employment relationship, lack the requisite independence from their employer. This economic and structural dependency is seen as fundamentally incompatible with the kind of detached professional judgment required for communications to be deemed ‘privileged’.   This creates a clear rule, privilege attaches to the channel of communication (external lawyer), not necessarily to the content (legal advice). For companies, this means that the strategic choice of advisor, internal versus external, remains the primary determinant of whether their communications are protected from disclosure to authorities. The judgement thus entrenches a practical imperative, to secure privilege, sensitive competition law advice must be sought from outside the corporate structure.   Conclusion: A Fortified Bulwark, A Clarified Frontier The Supreme Court’s ruling serves as a powerful affirmation of legal professional privilege for the independent Bar, strengthening a fundamental pillar of the justice system. For competition law practice, it provides much-needed certainty and robust procedural safeguards against the compelled disclosure of communications with external counsels. The ghost of the 2020 amendment has been decisively laid to rest. However, the judgement also draws a bright and unambiguous line in the sand, one that mirrors the long-standing position in jurisdictions like the European Union. By explicitly adopting the Akzo Nobel rationale, the Court has clarified that in India, as in the EU, privilege is a function of the advisor’s independence, not merely the content of the advice. This formalistic distinction prioritizes a clear rule over a nuanced assessment of an in-house lawyer’s actual function. The practical outcome is a two-track system of legal protection. External legal advice enjoys a fortified, near-absolute shield. In-house counsel, despite their critical role in governance and compliance, operate in a zone of far greater exposure. Their communications and work product will be subject to scrutiny by the Director General. Consequently, the strategic imperative for corporations is unmistakable. To create an inviolable space for candid legal discussion on high-stakes competition matters, be it cartel defence, merger strategy, or leniency applications; engagement with external counsel is not just advisable; it is now essential. The judgement does not diminish the value of in-house teams but sharply defines the limits of the confidentiality they can guarantee. Moving forward, effective competition law risk management in India will hinge on a deliberate and disciplined channelling of sensitive communications across this newly clarified boundary. [1] Suo Motu Writ Petition (Criminal) No.2 of 2025 [2] State of U.P. and Ors. v. U.P. State Law Officers Association & Ors ; (1994) 2 SCC 204 [3] Saving of inherent powers of High Court. [4] 2025 SCC OnLine SC 2196 [5] European Court Reports 2010 I-08301

Introduction The arbitration landscape in India has often been critiqued for the extent of judicial intervention in the arbitral process. Despite reforms such as the 2015 amendments to the Arbitration and Conciliation Act, 1996 (“Arbitration Act”) designed to limit challenges to arbitral awards, instances of judicial intervention persist. These include the Supreme Court’s exercise of curative jurisdiction to set aside awards[1] and certain anti-arbitration injunctions granted by High Courts[2], which raise questions regarding India’s progress towards becoming a truly arbitration-friendly jurisdiction. However, recent decisions from the Supreme Court and High Courts signal a shift towards greater judicial restraint at key stages including referral to arbitration, conduct of proceedings, and post-award scrutiny. This article examines cases from the past year in which courts have, first, directed disputes to arbitration rather than retaining jurisdiction; secondly, recognised arbitral tribunals’ authority to decide procedural/jurisdictional issues; and finally, limited post-award judicial review to preserve the finality of arbitral awards.  The Referral Stage An arbitration-friendly jurisdiction is characterised by judicial deference to parties’ agreements to arbitrate. Recent judicial trends in India reflect a growing recognition of this principle, supporting party autonomy. In K. Mangayarkarasi v. N.J. Sundaresan[3], the Supreme Court clarified that Section 8[4] of the Arbitration Act requires disputes be referred to arbitration where a prima facie valid arbitration agreement exists. In this case, trademark disputes arising from assignment deeds were held to be arbitrable where the rights asserted were contractual and in personam. The Court also reiterated that allegations of fraud cannot be routinely invoked to bypass arbitration unless they are serious and have public law implications. Similarly, Bombay High Court’s decision in Bholashankar Ramsuresh Dubey v. Dinesh Narayan[5], set aside a district court’s judgement wrongly withholding a partnership dispute from arbitration on allegations of fraud. It was held that disputes relating to the internal affairs of a partnership remain arbitrable and that legal representatives are bound by arbitration agreements by virtue of Section 40 of the Arbitration Act.[6] The Court ruled that as long as the fraud revolves around civil aspects of the dispute, it is arbitrable. In Offshore Infrastructure Ltd. v. Bhopal Petroleum Corp. Ltd.,[7] the Supreme Court further strengthened the pro-arbitration stance by holding that the ineligibility of a named arbitrator does not invalidate the arbitration agreement itself and that a defective appointment mechanism does not override the parties’ fundamental agreement to arbitrate. During Arbitral Proceedings  Judicial support and deference for arbitral autonomy have also been reflected in the approach adopted by Indian courts during the pendency of arbitral proceedings. In ASF Buildtech Pvt. Ltd. v. Shapoorji Pallonji & Co.[8], the Supreme Court affirmed the power of arbitral tribunals to implead non-signatories under the Group of Companies doctrine. The Court rejected the contention that such determinations must be made at the referral stage by courts, holding instead that the question of a non-signatory being bound by an arbitration agreement involves complex, fact-intensive inquiries best left to an arbitral tribunal in terms of Section 16 of the Arbitration Act[9], supporting the principle of Kompetenz–Kompetenz. A similar reluctance to interfere in arbitral proceedings was seen in National Highway Infra Development Corp. Ltd. v. NSPR VKJ[10], where the Delhi High Court declined to terminate the mandate of an arbitrator based on unsubstantiated allegations of corruption and bias. The Court cautioned against the misuse of termination petitions as a tactical device to stall arbitral proceedings. These decisions help underscore that, once the arbitral tribunal is constituted, it should be the primary forum for procedural and jurisdictional control of the dispute. Post-Award Review Recent precedent also demonstrates judicial restraint at the post-award stage and an acknowledgement of the importance of finality of arbitral awards. The Supreme Court in Somdatt Builders v. National Highways Authority of India[11] set aside a judgment of the Delhi High Court that had re-interpreted contractual clauses in an appeal under Section 37 of the Arbitration Act.[12] The Court reiterated that if an arbitral tribunal takes a plausible view of a contract, courts should refrain from interfering with it under Section 34 of the Arbitration Act, as this would defeat the purpose of the Act.[13] Similarly, in Ramesh Kumar Jain v. Bharat Aluminium Company (BALCO)[14], the Supreme Court emphasised the limited scope of judicial intervention under Section 37 of the Arbitration Act, holding that the Chhattisgarh High Court had exceeded its jurisdiction by reassessing evidence and substituting its own factual conclusions for those reached by the arbitral tribunal. It was clarified that interference with an award under grounds of “patent illegality” must go beyond allegations of erroneous application of law or misappreciation of evidence. It was further recognised that where a contract is silent on compensation for additional work, an arbitrator may award reasonable compensation on the principle of quantum meruit to prevent unjust enrichment. The Supreme Court restored the arbitral award, holding that the High Court had applied a stricter standard of scrutiny than is contemplated under the Arbitration Act. In Gayatri Balaswamy v. ISG Novasoft Technologies Ltd.[15], a Constitution Bench of the Supreme Court conclusively settled the controversy surrounding the power of courts to modify arbitral awards. The Court held that the power to set aside an award under Section 34 of the Arbitration Act includes a power to modify the award. However, it was also observed that such power to modify the award is limited to granting post-award interest, correction of any clerical or typographical errors, and severing those parts of the award that contravene Section 34 of the Arbitration Act. Further, the power to modify an award should not be exercised so as to result in rewriting the award or modifying it on merits. In Popular Caterers v. Ameet Mehta & Ors.[16], the Supreme Court set aside a Bombay High Court order granting an unconditional stay on the execution of a money award, reiterating that such relief is exceptional under Section 36(3) of the Arbitration Act. Referring to its earlier judgment in Lifestyle Equities C.V. v. Amazon Technologies Inc.[17], the Court held that unconditional stays are justified only where awards are egregiously perverse, patently illegal, or tainted by fraud or corruption. Otherwise, requiring security for a stay was held to be consistent with the statutory scheme and arbitral finality. Divergent Judicial Approaches While the aforementioned judgments indicate positive trends towards judicial restraint, this does not mean that instances of judicial intervention are non-existent. In Engineering Projects (India) Ltd v. MSA Global LLC[18], The Delhi High Court granted an anti-arbitration injunction restraining a Singapore-seated ICC arbitration on the grounds that it was “vexatious” and “oppressive”, thereby reasserting a supervisory role over a foreign-seated arbitration that was already subject to challenge before the arbitral tribunal, the ICC Court, and the supervisory court at the seat. Similarly, in Union of India v. V.K. Sood Engineer & Contractors[19], the Court undertook an extensive re-appreciation of contractual and evidentiary material, expanding the contours of “patent illegality” and public policy beyond the restrained intervention envisaged under the 2015 amendments. In the same vein, Bharat Heavy Electrical Limited v. Koneru Constructions[20] saw the Delhi High Court set aside an award after closely scrutinising the effect of a No Dues Certificate and reassessing the evidentiary foundation of the arbitrator’s conclusions. These approaches can be viewed as merits-oriented review undertaken under the guise of public policy and patent illegality. Although Gayatri Balaswamy limits the power of courts to modify the award to limited circumstances, it has raised concerns that post-award proceedings may, in practice, assume a quasi-appellate character, thereby diluting the principle of finality. Such instances underscore the need for arbitration jurisprudence reorient towards restraint, before greater changes in the Indian arbitration landscape may occur. Conclusion The recent precedents discussed above reflect a coherent and deliberate reorientation towards judicial restraint in arbitration matters. Indian courts appear increasingly aligned with well-established global principles of limiting referral courts to a threshold examination of the existence of an arbitration agreement, entrusting arbitral tribunals with jurisdictional and procedural autonomy, and confining post-award scrutiny to limited and exceptional parameters. At the same time, recent jurisprudence also reflects some divergence in judicial approaches. Certain decisions have adopted a more expansive view of judicial oversight, particularly at the post-award stage, prompting debate on the appropriate limits of court intervention and the preservation of arbitral finality. These decisions indicate that while the broader pro-arbitration shift is evident, its application has not been entirely uniform. If a restrained judicial approach continues to be consistently applied, it is likely to enhance both certainty and confidence in India’s arbitration framework. That said, change cannot be expected from courts alone, the sustained credibility of arbitration in India will also depend on the parallel evolution of arbitral institutions and the conduct of arbitral proceedings. Robust institutional practices, effective case management, and adherence by arbitrators to international best practices are also essential to ensuring that arbitration delivers efficient, fair, and commercially viable outcomes. [1] Delhi Metro Rail Corporation Ltd. v. Delhi Airport Metro Express Pvt. Ltd [(2024) 6 SCC 357] [2] Bina Modi v. Lalit Modi [(2021) 277 DLT 501 (DB)]; Balasore Alloys v. Medima LLC [2020 SCC OnLine Cal 1699] [3] (2025) 8 SCC 299 [4] Section 8 states that if a dispute brought before a court is covered by a valid arbitration agreement, the court must refer the parties to arbitration when a party asks for it before submitting its first statement on the substance of the dispute. [5] 2025 SCC OnLine Bom 1478 [6] As per Section 40, an arbitration agreement continues to be valid even after death of the party and can be enforced by or against the legal representatives of the deceased. [7] 2025 SCC OnLine SC 2147 [8] (2025) 9 SCC 76 [9] Section 16 gives power to the arbitral tribunal to rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement. [10] 2025 SCC OnLine 9022 [11] (2025) 6 SCC 757 [12] Section 37 limits appeal to only certain specific orders of courts pertaining to refusing to refer parties to arbitration, granting or refusing interim measures, or setting aside an arbitral award. [13] Section 34 lays down the limited grounds under which an award can be set aside by courts such as incapacity of a party, arbitration agreement not being valid under law, subject-matter of dispute was not arbitrable, arbitral award is in conflict with the public policy of India, award is vitiated by patent illegality, etc. [14] 2025 SCC OnLine SC 2857 [15] (2025) 7 SCC 1 [16] C.A. No. 14260-14262/2025 [17] 2025 SCC OnLine SC 2153 [18] 2025 SCC OnLine Del 5072 [19] 2025 SCC OnLine Del 4399 [20] O.M.P (COMM) 255/2020

New Delhi, January 05, 2026: Lakshmikumaran & Sridharan Attorneys acted as legal advisor to NU Hospitals Private Limited, its promoters, and certain non-promoter selling shareholders in connection with a significant minority investment by Somerset Indus Capital Partners, a healthcare-focused private equity firm. The transaction encompassed both primary and secondary components, culminating in stake in NU Hospitals - a Bengaluru-headquartered leading super-specialty healthcare group known for its excellence in nephrology, urology, fertility/IVF and renal transplant care. The LKS team provided comprehensive, end-to-end legal support for the transaction, advising NU Hospitals, its promoters, and select selling shareholders on all aspects of the transaction. Leveraging deep sector expertise in healthcare and private equity, the firm structured and navigated simultaneous primary and secondary components, ensuring optimal outcomes for all stakeholders. The firm’s involvement spanned structuring the deal, managing simultaneous primary and secondary components, and steering the transaction from signing to closing. The team led negotiations and finalised the deal documentation - including share subscription and purchase agreements and shareholders’ agreement - while also coordinating closing formalities, aligning diverse interests and ensuring seamless execution across multiple stakeholders. This engagement underscores the firm’s capability in managing sophisticated transactions that drive strategic growth and investor confidence in India’s healthcare sector. The team from LKS was led by Gaurav Dayal (Executive Partner) and Sushrut Biswal (Partner), with support from Rohan Verma (Associate Partner), Saurabh Raman (Principal Associate), Sukoon Dinodia (Senior Associate), and Snigdha Ghosh (Associate). About Lakshmikumaran & Sridharan attorneys Lakshmikumaran & Sridharan (LKS) is a premier full-service law firm in India, specializing in areas such as corporate & M&A/PE, dispute resolution, taxation and intellectual property. The firm, through its 14 offices across India, works closely on Corporate, M&A, litigation and commercial law matters, advising and representing clients both in India and abroad. Over the last 4 decades the firm has worked with over 15,500 clients which range from start-ups, small & medium enterprises, to large Indian corporates and multinational companies. The professionals within the firm bring diverse experience to service clients across sectors such as automobiles, aviation, consumer electronics, e-commerce and retail, energy, EPC, financial services, FMCG, hospitality, IT/ITeS, logistics, metals, mining, online gaming, pharma and healthcare, real estate and infra, telecom and media, and textiles. The firm takes pride in the value-based, client-focused approach that combines knowledge of the law with industry experience to design bespoke legal solutions. The firm’s driving principles to achieve our vision are integrity, knowledge and passion.  For more details contact:  Supriti Narayanan +91 9958867828 [email protected]    Sakshi Sharma +91 9521867484 [email protected] www.lakshmisri.com 

S&A Law Offices lead by Mr. Manoj K Singh, Ms. Gunita Pahwa and assisted by Mr. Anand Pratap Singh, successfully defended Western M. P. Infrastructure & Toll Roads Private Limited (part of Cube Highways group) in an arbitration proceeding against Markolines Pavements Technologies Pvt. Ltd. The Arbitral Tribunal rejected 100% Claims of the Markolines and awarded substantial legal and arbitration costs to the Western MP. The dispute arose because of the termination of the Contract by Western MP to Markolines for the maintenance of the Project of four Laning of the Lebad to Jaora Road Project in Madhya Pradesh. Markolines challenged the termination of the contract and claimed damages for loss of profit, loss of profitability and other costs, which were rejected by the Arbitral Tribunal. This outcome is a testament to S&A Law Offices’ expertise in handling complex infrastructure and construction disputes.