CAN INVESTIGATING AGENCIES COMPEL DISCLOSURE OF PRIVILEGED COMMUNICATION BETWEEN ATTORNEY AND CLIENT? A LEGAL ANALYSIS

I. Introduction

The Attorney–client privilege (“ACP”) is a legal doctrine with origins in the 16^th century English common law that, broadly speaking, protects all confidential communication made between an advocate and their client(s) to secure legal advice.[1] It is based on the fact that a client can have effective representation only when they are able to disclose every fact, favourable or unfavourable, without fear that such information may later be revealed or used against them.[2] 

The major legal provisions governing the doctrine of attorney–client privilege in India are found in the Sections 132 to 134 of the Bharatiya Sakshya Adhiniyam, 2023 (“BSA”), the Advocates Act, 1961, and the Bar Council of India Rules,[3] which also provide for its exceptions, which broadly are –

i. The client expressly consents to the advocate to divulge such communication.[4]

ii. The client makes such communication to the advocate in “furtherance of any illegal purpose”.[5]

iii. If a crime or fraud was committed after the start of an Advocate’s employment, does not remain protected by privilege.[6]

iv. If any party calls the advocate as a witness, the party shall be considered to have consented to disclosing privileged matters only if he questions the advocate on these matters which, but for such questioning, the advocate would not be entitled to reveal.[7]

v. If the client offers himself as a witness, he may be compelled to disclose information otherwise protected under this doctrine, to the extent that the Court deems it necessary for explaining or clarifying any part of his testimony.[8]

The High Court (“HC”) of Jharkhand has observed in Nishikant Dubey[9] that the attorney client privilege protects not only the client but also the counsel. The advocate bound by his noble profession merely represents the accused without any personal interest in such cases, and just because for carrying out his duties, if proceedings were to be initiated against advocates for the acts of their clients, “no lawyer would be able to discharge his function without fear”.

However, in recent times, there has been a noticeable surge in instances of investigating agencies and police summoning and searching advocates, raising serious concerns regarding their encroachment into the advocate–client privilege and the independence of the Bar.[10]

This paper examines current position of the Indian judiciary on the limits of investigative powers in relation to the ACP through recent cases and points out that the lack of comprehensive guidelines has led to these recurring instances of overreach by investigating agencies. It finally concludes with some recommendations to ensure that investigative action does not encroach upon the independence of the legal profession.

II. Limitation on Investigating Agencies through Attorney-Client Privilege.

The Hon’ble Supreme Court (“SC”) had recently initiated suo motu proceedings in In Re: Summoning of Advocates Who Give Legal Opinions or Represent Parties During Investigation of Cases, taking cognisance of the increasing trend of investigating agencies summoning practising lawyers.[11] The issue gained prominence after the Gujarat Police summoned an advocate representing his client and the Enforcement Directorate (“ED”) issued summons to Senior Advocates Arvind Datar and Pratap Venugopal for their advisory work for Care Health Insurance.[12]

In a Special Leave Petition (“SLP”), Ashwinkumar Govindbhai Prajapati v. State of Gujarat, the Police called upon the lawyer who filed a regular bail application on behalf of his client under 179 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), “to know the true details of facts and circumstances” the petitioner was asked to appear at the office of the police commissioner.[13] The HC had allowed the summons, noting that it was in the capacity of a witness. The SC prima facie agrees that lawyer was not personally involved in any manner in the case and was merely representing the accused. “The FIR pertains to a dispute between the complainant and the accused, and the petitioner has no connection beyond his role as a lawyer for the accused.” [14]

The Court recognised the importance of the legal profession as an integral part of the judicial system and noted that advocates possess certain rights and privileges essential to its functioning.[15] Allowing investigating agencies to summon defence counsel or advising lawyers directly would seriously undermine professional autonomy and the independence of the justice process.[16]

And thus, the bench placed before the Chief Justice of India (“CJI”) two questions to be taken up- [17]

• When an individual is engaged with a case merely as a lawyer advising the party, can they be directly summoned by such agencies for questioning?
• If there is evidence by such agencies that their enagement in such cases is beyond that of a mere lawyer, whether judicial oversight should be prescribed or direct summons by them should be allowed?

In this context, it becomes necessary to examine the current position adopted by Indian courts on the limits of investigative authority and the protection of attorney–client privilege.

1. Current Legal Position

The current legal position governing investigations against advocates in India is broadly based on the SC’s judgement in Punjab vs. Sodhi Sukhdev Singh[18] in 1961 – “It is a settled legal position that a communication is privileged if it is made to a legal advisor by a client after the commission of a crime and with a view to his defence, but it is not privileged if it is made before the commission of the crime or wrong and for the purpose of being guided or assisted in furthering or committing it.” This distinction, based on the exceptions to Section 132 of the BSA, still forms the basis for determining when investigative authorities may lawfully access privileged communications between advocate and their client.

In Puneet Batra vs. Union of India[19] – The Anti evasion branch of the Goods and Services Tax (“GST”) department conducted a search at the attorney’s office after he failed to appear for the summons orders, and seized materials including electronic records that contained confidential information regarding his clients. The court held that such materials are protected by the attorney client privilege and unless there is prima facie evidence to prove that the attorney is also personally involved along with the client, such a measure amounts to harassment of an advocate.

In, Himanshu Kumar Ray vs. West Bengal,[20] The police officers sending standardised general notices to lawyers for appearing as witnesses under S. 160 of The Code of Criminal Procedure, (“CrPC”), without individually investigating them first. The court informed them that they could not investigate advocates for information regarding their clients as it is protected by attorney-client privilege. Further held that such generalised standard form notices sent to lawyers is violation of Section 160 of CrPC.

In AK Pavithran vs. Cental Bureau of Investigation (“CBI”)[21] where the attorney was summoned under Section 160 of CrPC. to the Inspector’s office to question him regarding information on his client who was accused under the Prevention of Corruption Act, 1988 (“PC Act”), the court said that neither was any evidence against the attorney placed on record, nor was the case brought in any of the two exceptions provided under 126 of the Indian Evidence Act (“IEA”). It was said that “Deference to the provisions of Section 126 of the Evidence Act does not amount to interference with investigations.”

Thus, Investigative action against a lawyer requires case-specific prima facie evidence of personal involvement or should show that the two exceptions of S.132 apply – communications made in furtherance of an illegal purpose or relating to a crime or fraud committed after the commencement of professional engagement.[22] Routine or standardised summons against lawyers by the Police or other investigative agencies are a clear violation of their powers.

Recent precedents also show that if an advocate’s testimony is considered necessary by the police and the investigative agencies, the summons must explicitly state that it is issued in the capacity of a witness and not in their professional capacity. Any such inquiry must remain confined to independent factual matters and cannot compel the disclosure of privileged communications between lawyer and client. Else, it only amounts to intimidation and  harassment and a violation of the advocate’s right to practise freely under Article 19(1)(g) of the Constitution.[23]

In Ajithkumar v Kerala,[24] it was said that under 179 of BNSS, “the police can issue a summons to an advocate as a suspect or witness, and not in his professional capacity”. 179(1) cannot be used by the police to breach the attorney client privilege. When issuing a notice under Section 35(3), instead of issuing them routinely, the police must show reasonable basis. Else, it would violate the attorney’s fundamental rights. Here an advocate was representing a couple who were alleged to be Bangladeshi nationals. He received a notice under S. 35(3) BNSS summoning him for questioning and warning of arrest if he chose not to appear. The advocate approached the High Court, and following their reprimand, the notice was withdrawn by the police.

As will be seen in these cases, the Courts have, even after such notices were withdrawn, still proceeded against these authorities, to ensure they do not “set a dangerous precedent”[25] which is significant as the very act of issuing such notices are a gross disregard for the attorney–client privilege.

In Praram Infra v. State of M.P,[26] The client in this case was accused of financial fraud of crores of rupees under the Indian Penal Code (“IPC”). After the advocate filed a writ petition (which was later disposed) asking for an unbiased probe into the matter, he was summoned by the Police to provide statements and signature samples under 91 & 160 of CrPC. Though the notice was later withdrawn, to avoid setting a dangerous precedent, the court heard the attorney and held since neither was there any evidence that there was any “furtherance of illegal purpose” and since clearly the lawyer was representing the accused after the alleged act had occured neither could he have been a witness and nor was he an accused and could not have been summoned under S.160 of CrPC.

Finally, In Maulikkumar Satishbhai Sheth,[27] the Court laid down certain guidelines regarding investigation procedures under Section 132 of the Income Tax (“IT”) Act.

1. Such people can only be summoned when the exercise of this power can only follow a reasonable belief that any of the three conditions mentioned in section 132 of the Income Tax exists and the Director of Inspection or the Commissioner has to record his reasons before the authorisation is given.
2. Attorney–client privilege shall extend to the documents or data seized from the petitioner, in exception to the IEA’s provisions on ACP. Therefore, in order to apply the provision of Section 126 of the authorities can consider the documents which are incriminating which falls under the two exceptions of s.126 of the Evidence Act. However, for the documents under illust. (a) Section 126, no action can be taken.
3. “No further litigation would arise in the case of third parties whose documents were found during the course of the search.”[28]
4. This privilege shall also protect the 3^rd parties / client of the advocate in the event that any proceedings are initiated by the IT Dept. on the basis of material seized from the advocate’s office.

These guidelines, even though laid under the Income Tax Act, such should also be applicable to the customs law and GST investigations due to their similarity.[29] As for the Prevention of Money Laundering Act, 2002 (“PMLA”), Under Section 50, the Enforcement Directorate’s Director exercises powers akin to those of a civil court, and summons proceedings under Section 50(2), (3) of the PMLA is deemed to be a judicial proceeding as per the Bharatiya Nyaya Sanhita, (“BNS”).[30] As Section 1 of the BSA[31] extends the Act’s applicability to all judicial proceedings before any court or authority, the provisions of Sections 132 to 134—governing attorney–client privilege—are thus applicable here.[32]

In light of these decisions, the Gujarat HC’s decision in Ashwinkumar Prajapati stands as an anomaly. Such inconsistency, howsoever little, shows the need for clear guidelines to ensure protection of advocates against overreach by these investigative agencies.

2. Recommendations

i. Judicial oversight in Summoning Lawyers and conducting searches and seizures

Judicial oversight is crucial to prevent the misuse of investigative powers against advocates and to maintain the sanctity of the advocate–client relationship. Without such scrutiny, the power to summon lawyers risks becoming a tool of intimidation rather than investigation, deterring lawyers from freely representing clients in sensitive or adversarial matters.[33] Oversight by a judicial authority ensures that any interference with legal privilege occurs only when supported by credible and specific material, thereby preserving both the independence of the Bar and public confidence in the fairness of investigations.[34]

Support for judicial oversight in summoning advocates can be found both in Indian precedents and in comparative legal systems. In Jacob Mathew,[35] the Supreme Court of India held that criminal proceedings against doctors for negligence can be initiated only after obtaining an independent and competent medical opinion and framed guidelines in this regards. This logic should extend to the legal profession, where a similar threshold of review may be necessary before interfering with an advocate’s role.[36] Internationally, In Niemietz v. Germany, the European Court of Human Rights held that searches of a lawyer’s office engage the right to privacy under Article 8 of the European Convention on Human Rights, noting that such searches “may have repercussions on the proper administration of justice,” and therefore lawyer’s offices are to have enhanced protection.[37] The US also has rules framed by the US Department of Justice to safeguard the interest of lawyers during search and seizures.[38]

Further, Section 223 of the BNSS establishes a new pre-cognizance stage for complaint cases, requiring a Magistrate to give the accused an opportunity to be heard before taking cognizance of an offense.[39] This provision reflects a legislative intent to institutionalise judicial oversight as a procedural safeguard against arbitrary or premature criminal prosecution. This model may be can be modified and adopted for advocates, ensuring that any summons or search against them is subjected to a stricter scrutiny before investigative action is permitted.

At present, there are no proper guidelines to protect privileged material during searches or seizures, in Maulikkumar HC has laid down guidelines but they are only limited to the Income Tax Department, and it is a High Court precedent.[40] This gap is worsened by the absence of uniform standards across bodies like the ED, CBI, GST Dept., and even intra bodies, (The ED being the investigating body in the PMLA, Foreign Exchange Management Act (“FEMA”), and the Fugitive Economic Offenders Act (“FEOA”) ), each applying its own inconsistent approach.[41] Such unchecked executive discretion has led to instances of harassment and a chilling effect on advocacy, which lawyers face merely for representing their clients. In the United Kingdom, searches and seizures need to be authorised by a justice of the peace.[42]

Further, during searches of a lawyer’s offices, agencies must employ independent officers to segregate privileged materials before review. This was considered by the court in Maulikkumar, but disregarded saying it might set a dangerous precedent but the court was wary of the possibility of misuse by the investigating authorities against third parties and warned them against it.[43] The USA has a similar practice where the judge in certain cases appoints a “neutral third party” who reviews such documents.[44]

ii. Lawyers may not be summoned when they are a solely advising party.

This position seems to be settled as the different HCs through many cases like Puneet Batra, Ajithkumar, Praram Infra, which have been discussed above in Section II(1). It has been repeatedly held that advocates acting purely in their professional capacity cannot be summoned or compelled by investigating agencies to disclose information protected by Attorney client privilege.[45]

This position preserves not only the sanctity of privilege but also the nobility and independence of the legal profession as subjecting lawyers to repeated summons or raids for acts done in their professional capacity amounts to intimidation and harassment, eroding the dignity attached to the practice of law.[46] Moreover, compelling a lawyer to assist in an investigation violates the fundamental right under Article 19(1)(g) to practice one’s profession freely.[47] These actions create a chilling effect on the legal profession, deterring advocates from discharging their duties with the independence essential to the proper administration of justice.[48]

iii. Illegally obtained evidence through search and seizures

In India, whether the fact in question is a “relevant fact” under the BSA is the only bar to its admissibility unless any legislation explicitly bars the admissibility of such illegally obtained evidence.[49] This was laid down by the SC in Pooran Mal v. Director of Inspection [50] where it was examining obtained evidence from an allegedly illegal search operation conducted by the Income Tax department. Even after the Puttaswamy judgement, the Pooran Mal position was reiterated in Yashwant Sinha[51] too in 2019. This is the strictest of approaches, unlike the doctrine of the “Fruit of the poisonous tree”, which prohibits the admissibility of illegally obtained evidence in the USA.[52]

This gap effectively incentivises investigative agencies to bypass privilege through unlawful searches or seizures; However, Indian HCs have refused to entertain any evidence obtained in violation of the attorney client privilege as observed in Puneet Batra and Maulikkumar.[53]

But as Pooran Mal still continues to be good law, it must be noted that S.132 of the BSA[54] places a bar on what an advocate may disclose, but it does not bar a court from admitting such illegal evidence obtained. Therefore, if privileged material is acquired by an investigating agency—through an illegal search or seizure—the provision does not explicitly prevent the court from admitting it. Hence, an explicit statutory bar on the admissibility of such material should be incorporated, as the Pooran Mal judgement so requires.

Recently, the Apex Court has finally pronounced judgement in this matter in the suo motu case of “Re: Summoning Advocates Who Give Legal Opinion or Represent Parties During Investigation of Cases and Related Issues”.[55] Where, although it refused to offer magisterial oversight in summons issued to lawyers by such agencies, it did quash all the summons in question in the case and laid down certain directives for the agencies to conform to.[56] It categorically held that lawyers could only be summoned under the two exceptions stated under the S. 132 of BSA, which as discussed, has before this been repeatedly affirmed by the HCs in many decisions. Secondly, it has said judicial review under inherent powers of the High Court can be resorted to by the lawyers and their clients to challenge the summons.[57] However, such review operates only after issuance, and thus does not substitute for preventive judicial scrutiny that the magistrate’s oversight could provide before such summons would be issued in the first place, particularly in filtering out cases lacking prima facie material. Thirdly, it held that digital records seized must only be opened in the lawyer and the parties’ presence, an adaptation from the Maulikkumar guidelines that the Delhi HC recently pronounced.[58] Fourthly, the court reaffirmed its previous position that in-house counsels cannot avail the attorney client privilege afforded under these provisions.[59] The judgment effectively consolidates earlier High Court rulings on this matter. While the Court described its directions as an attempt to “harmonise evidentiary and procedural rules,”[60] it stopped short of prescribing preventive judicial oversight, leaving a crucial gap in safeguarding advocates from investigative overreach.

iv. Conclusion

Attorney–client privilege is vital to an independent judiciary, yet its protection in India still remains slightly inconsistent.[61] Although the HCs and the Hon’ble SC have held that advocates cannot be summoned in their professional capacity, the absence of uniform statutory safeguards allows investigative overreach to persist.[62] The current judicial pronouncements on this matters offers some protection, but without proper guidelines, investigative agencies continue their overreach without any clear restraint.[63] To preserve both the independence of the Bar and public confidence in justice, explicit legislative guidelines, prior judicial oversight, and a bar on the admissibility of illegally obtained privileged material are urgently needed.[64]

[1] Karandeep Makkar, “Client Confidentiality and Lawyer-Client Privilege: A Study of Indian, American and English Laws” SSRN (2010), available at: https://ssrn.com/abstract=1722569 (last visited on October 20, 2025).

[2] Id.

[3] Shalini Vasishtha, “Confidentiality and Limitations of Attorney-Client Privilege” SSRN (2020), available at: https://ssrn.com/abstract=3703942 (last visited on October 20, 2025).

[4] The Bharatiya Sakshya Adhiniyam, 2023 (Act 47 of 2023), s. 132.

[5] The Bharatiya Sakshya Adhiniyam, 2023 (Act 47 of 2023), s. 132, cl. (1) (a).

[6] The Bharatiya Sakshya Adhiniyam, 2023 (Act 47 of 2023), s. 132, cl. (1) (b).

[7] The Bharatiya Sakshya Adhiniyam, 2023 (Act 47 of 2023), s. 133.

[8] The Bharatiya Sakshya Adhiniyam, 2023 (Act 47 of 2023), s. 134.

[9] Nishkant Dubey v. State of Jharkhand, 2023 SCC OnLine Jhar 304.

[10] Pragya Parijat Singh, “Privileged and Confidential: Tracing Attorney-Client Communication” Bar & Bench, June 25, 2025, available at: https://www.barandbench.com/columns/privileged-and-confidential-tracing-attorney-client-communication (last visited on October 20, 2025).

[11] SMW(Crl) No. 2/2025.

[12] Supra note 10.

[13] 2025 SCC OnLine SC 1384.

[14] Apoorva, “Supreme Court stays police summons to lawyer; Investigating Agency powers under scrutiny” SCC Online (June 26, 2025), available at: https://www.scconline.com/blog/post/2025/06/26/supreme-court-stays-police-summons-to-lawyer-investigating-agency-powers/  (last visited on October 20, 2025).

[15] Id.

[16] Id.

[17] Supra note 13.

[18] AIR 1961 SC 493.

[19] 2025:DHC:7897-DB.

[20]2023 (96) TMI 943

[21] 2024 SCC OnLine Bom 1158

[22] V. Venkatesan, “Supreme Court’s Strictures Against Summoning Lawyers Are Backed by Precedents” Supreme Court Observer (3 July 2025), available at: https://www.scobserver.in/journal/supreme-courts-strictures-against-summoning-lawyers-are-backed-by-precedents-lawyer-summons/ (last visited on 20 Oct. 2025).

[23] Id.

[24] 2025 LiveLaw (Ker) 223.

[25] 2025 SCC OnLine MP 2737.

[26] Id.

[27] SCA/20187/2023;  Sudipta Bhattacharjee, “Gujarat High Court on Attorney-Client Privilege in Context of Search and Seizure Operations under Tax Laws” Bar & Bench (23 Apr. 2024), available at: https://www.barandbench.com/view-point/gujarat-high-court-attorney-client-privilege-search-and-seizure-tax-laws (last visited on 20 Oct. 2025).

[28] Id.

[29] Id.

[30] The Prevention of Money Laundering Act, 2002 (Act 15 of 2003), s. 50.

[31] The Bharatiya Sakshya Adhiniyam, 2023 (Act 47 of 2023), s. 1(1).

[32] Shaffi Mather, “Summoning Advocates by Enforcement Directorate” LiveLaw (26 June 2025), available at: https://www.livelaw.in/articles/summoning-advocates-enforcement-directorate-295855 (last visited on 20 Oct. 2025).

[33] Dhananjay Mahapatra, “SC agrees with petitioner on attorney-client privilege” The Times of India, June 26, 2025, available at: https://timesofindia.indiatimes.com/india/sc-agrees-with-petitioner-on-attorney-client-privilege/articleshow/122081520.cms (last visited on Oct. 20, 2025).

[34] Id.

[35] Jacob Mathew v. State of Punjab, (2005) 6 SCC 1.

[36] Parmod Kumar, “Supreme Court reserves judgment in suo motu case on summons to advocates over legal advice; Bar bodies suggest magistrate’s approval” The Leaflet (12 Aug. 2025), available at: https://theleaflet.in/leaflet-reports/summons-to-advocates-over-legal-advice-ag-sg-oppose-bar-associations-suggestion-for-magistrates-approval-sc-reserves-judgment (last visited on 20 Oct. 2025).

[37] (1992) 16 EHRR 97; Shailee Basu, “Investigative agencies summoning lawyers violates the lawyer-client privilege” The Indian Express (27 Jun. 2025), available at: https://indianexpress.com/article/opinion/columns/investigative-agencies-summoning-lawyers-violates-the-lawyer-client-privilege-10092427/ (last visited on 20 Oct. 2025).

[38] H. Marshall Jarrett & Michael W. Bailie (eds), Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (3rd ed, Executive Office for United States Attorneys, Office of Legal Education, 2009), available at: https://www.justice.gov/d9/criminal ccips/legacy/2015/01/14/ssmanual2009_002.pdf

[39] The Bharatiya Nagarik Suraksha Sanhita, 2023 (Act 46 of 2023), s. 223.

[40] Supra note 27.

[41] Id; Maheshwari & Co., “Facing an Enforcement Directorate (ED) Investigation? Here’s What You Must Know” Mondaq India (6 Oct. 2025), available at: https://www.mondaq.com/india/compliance/1686744/facing-an-enforcement-directorate-ed-investigation-heres-what-you-must-know (last visited on 20 Oct. 2025).

[42] Supra note 37.

[43] Supra note 27.

[44] Supra note 38.

[45] Supra note 24.

[46] Supra note 13.

[47] Id.

[48] Supra note 37.

[49] Kartik Gupta, “Admissibility of Unlawfully Obtained Evidence in International Arbitration” NLIU Law Review Vol XI, Issue II (2022) 97.

[50] Pooran Mal v. Director of Investigation, (1974) 1 SCC 345.

[51] Supra note 49.

[52] Yashwant Sinha v. Central Bureau of Investigation,

[53] Supra note 19; Supra note 27.

[54] The Bharatiya Sakshya Adhiniyam, 2023 (Act 47 of 2023), s. 132.

[55] SMW(Crl) No. 2/2025.

[56] Debayan Roy, “Lawyers can’t be summoned over advice to clients unless exceptional circumstances exist: Supreme Court”, Bar & Bench, 31 Oct. 2025, available at https://www.barandbench.com/news/lawyers-cant-be-summoned-over-advice-to-clients-unless-exceptional-circumstances-exist-supreme-court

(last visited 31 Oct. 2025).

[57] Aditi Gyanesh, “No Summons to Advocates Except Under S.132 BSA Exceptions: Prior Approval of Superior Officer Mandatory, Supreme Court Issues Directions”, LiveLaw, Oct. 20, 2024, available at https://www.livelaw.in/top-stories/no-summons-to-advocates-except-under-s132-bsa-exceptions-prior-approval-of-superior-officer-mandatory-supreme-court-issues-directions-308398

(last visited on Oct. 31, 2025).

[58] Id. See also – Sudipta Bhattacharjee, “Gujarat High Court on Attorney-Client Privilege in Context of Search and Seizure Operations under Tax Laws” Bar & Bench (23 Apr. 2024), available at: https://www.barandbench.com/view-point/gujarat-high-court-attorney-client-privilege-search-and-seizure-tax-laws (last visited on 20 Oct. 2025).

[59] Id.

[60] Id.

[61] Supra note 13.

[62] Supra note 22.

[63] Supra note 27.

[64] Supra note 37.