Amidst rising criticism over summoning senior lawyers for their legal advice, the Enforcement Directorate (ED) has issued a circular directing that no summons be sent to advocates in violation of Section 132 of the Bhartiya Sakshya Adhiniyam (BSA), 2023.
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The directive comes shortly after ED summoned Senior Advocates Arvind P. Datar and Pratap Venugopal regarding their legal opinions given to Care Health Insurance on Employee Stock Ownership Plans (ESOPs) involving former Religare chairperson Dr. Rashmi Saluja. This move led to sharp reactions from legal circles, including multiple Bar associations condemning the action and calling it a breach of lawyer-client privilege.
“ED has issued a Circular for the guidance of the field formations that no summons shall be issued to any Advocate in violation of Section 132 of the Bhartiya Sakshya Adhiniyam, 2023,” the agency stated on its official X handle.
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The agency clarified that if a summons to an advocate is necessary, it should only be done under the exceptions provided in the proviso to Section 132, and even then, only with the prior approval of the Director of ED.
“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.”
Section 132 of BSA, 2023 protects the confidentiality of communications between advocates and their clients. The section bars disclosure of any information shared during professional services, except in specific situations like:
- Communication made for illegal purposes
- Any crime or fraud observed during professional engagement
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The law also ensures that these confidentiality obligations continue even after the professional relationship ends.
“No advocate shall, unless with his client’s express consent, disclose any communication made to him in the course and for the purpose of his service… The obligation continues after the professional service has ceased.”
After strong opposition and legal uproar, the ED withdrew the summons issued to both advocates. Legal experts and Bar councils had also appealed to the Supreme Court, urging it to act to protect the independence and autonomy of legal professionals.
Now, with this circular, the ED has set a clear internal protocol aimed at preventing such conflicts in future and upholding legal ethics around advocate-client confidentiality.
