ED crossing all limits: SC on agency summoning lawyers for giving legal advice

New Delhi | The Enforcement Directorate is "crossing all limits", the Supreme Court said on Monday as it expressed serious concern over the agency summoning advocates for offering legal advice or representing clients during investigations. It also called for guidelines on the matter.

The remarks from an apex court bench of Chief Justice B R Gavai and Justice K Vinod Chandran came during a suo motu hearing initiated by the court to address the implications of such actions on the independence of the legal profession.

This comes in the wake of the ED summoning senior lawyers Arvind Datar and Pratap Venugopal.

“The communication between a lawyer and the clients is privileged communication and how can the notices be issued against them… they are crossing all limits,” the CJI said.

“Guidelines should be framed,” he said while responding to submissions that recent ED notices to legal professionals like senior advocate Datar could have a chilling effect on the practice of law.

Attorney General R Vennkataramani and Solicitor General Tushar Mehta said the issue had been taken up at the highest level and the probe agency asked to not issue notices to the lawyers for rendering legal advice.

“Lawyers cannot be summoned for rendering legal opinions,” the solicitor general said.

He, however, said there have been attempts to malign institutions by creating false narratives.

Advocates stressed that summoning lawyers, especially for giving legal opinions, was setting a dangerous precedent.

“If this continues, it will deter lawyers from offering honest and independent advice,” a lawyer said, adding that even district court lawyers were facing undue harassment.

The attorney general acknowledged the concerns and said, “What is happening is certainly wrong.” The CJI responded that the court had also been surprised by reports it came across. However, the solicitor general cautioned against forming opinions based on media narratives.

“There is a concerted effort to target institutions. Please don't go by interviews and news,” the law officer said.

“We don't watch the news, haven't seen YouTube interviews. Only last week I managed to watch a few movies,” said the CJI, who was indisposed last week.

When the solicitor general referred to politicians, accused in scams, attempting to shape public opinion, the CJI said, “We said it… don't politicise this.” “The moment I heard about Mr Datar, I immediately brought it to the notice of the highest executive,” Mehta said.

The bench directed all parties, including the Supreme Court Bar Association(SCBA), represented by its president and senior advocate Vikas Singh, to file comprehensive notes on the issue and allowed intervention applications.

The matter is now listed for further hearing on July 29.

“Ultimately, we are all lawyers,” the CJI remarked, adding that arguments in court should not be viewed adversarially.

On June 20, the ED said it had directed its investigating officers not to issue summons to any advocate in money laundering investigations being carried out against their clients. An exception to this rule can only be made after "approval" by the agency's director, it added.

The ED, tasked with combating money laundering crimes, issued a circular for guidance of its field formations, stating that "no summons" should be issued to any advocate in violation of Section 132 of the Bhartiya Sakshya Adhiniyam (BSA), 2023.

"Further, if any summons needs to be issued under the exceptions carved out in proviso to Section 132 of the BSA, 2023, the same shall be issued only with the prior approval of the director, ED," the agency said.

The summons issued to these advocates was condemned by the SCBA and the Supreme Court Advocates-on-Record Association, which called the move a "disturbing trend" that struck at the very foundations of the legal profession.

The bar bodies had urged the CJI to take suo motu cognisance of the matter.

On June 25, an apex court bench of Justices K V Viswanathan and N Kotiswar Singh said allowing police or probe agencies to directly summon lawyers for advising clients would seriously undermine the autonomy of the legal profession and was a "direct threat" to the independence of justice administration.

It observed that the legal profession was an integral component of the process of administration of justice.

The order came when the top court was hearing a plea of a Gujarat-based advocate, challenging an order of the high court passed on June 12.