Probe agencies summoning lawyers: We are custodians of all citizens, says Supreme Court

The Supreme Court described itself as the “custodian of all citizens in the country” — signalling its role as a protector of rights for everyone, not just specific parties in the case.

SC reserved its decision in a suo motu case on summoning of lawyers by probe agencies while representing clients in cases.

A bench of Chief Justice of India B.R. Gavai and justices K. Vinod Chandran and N.V. Anjaria was hearing solicitor general Tushar Mehta when it remarked, "We are custodian of the entire citizens of the country."

The bench went on to reserve its order in the matter.

Mehta during the hearing submitted that lawyers ought to be protected for part of the administration of justice.

"Lawyers do have professional immunity while representing clients. But if a lawyer’s role goes beyond legal representation and crosses into advising on or participating in illegal acts — such as tampering with evidence or fabricating documents — that immunity no longer applies," the bench said.

Mehta said a lawyer should never be called by the probe agencies for offering professional opinion.

Senior advocate Sidharth Luthra, who was also appearing in the matter, said the issue was about the access to justice.

He said an FIR was filed against a lawyer because the client claimed they had not authorised the lawyer to submit a notarised affidavit on their behalf.

During the hearing, the bench observed it cannot create two classes of lawyers.

Mehta urged the apex court to lay down the law for everyone but bear the country scenario in mind.

"Close for orders," the bench said.

Attorney general R. Venkataramani earlier said he had gone through the submissions filed by various bar body in the matter and would file a written note.

The bench asked the lawyers to file their notes within a week.

On 29 July, the top court said a person merely acting as a lawyer should not be summoned by the probe agencies for rendering legal opinion to a client under investigation.

The court, however, said if a lawyer was assisting the client in the crime, he could be summoned.

The Supreme Court Bar Association (SCBA) and the Supreme Court Advocates-on-Record Association (SCAORA) represented by senior advocate Vikas Singh and advocate Vipin Nair have made submissions in the matter.

Previously, the apex court observed the Enforcement Directorate was "crossing all limits" and expressed serious concern over the agency summoning advocates for offering legal advice or representing clients during investigations.

It had also called for guidelines on the matter.

The suo motu case came in the wake of the ED summoning senior lawyers Arvind Datar and Pratap Venugopal.

On 20 June, the ED said it 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, 2023.

The issuing of summons to these advocates was condemned by the SCBA and the SCAORA, 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.

With PTI inputs