By Abdullah Hussain, Kanika Chaudhary Nayar & Ishan Handa

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 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 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:

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.

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.

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:

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.

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:

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.

The principles laid down by the Supreme Court have direct and immediate application to the conduct of competition law investigations in India.

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.

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