Lawyers giving merely legal advice shouldn't be summoned by probe agencies: Supreme Court

New Delhi: The Supreme Court on Tuesday said that when a person is merely acting as a lawyer, then he should not be summoned by probe agencies for rendering legal opinion or representing a client who is under investigation.

A bench of Chief Justice of India B R Gavai and K Vinod Chandran, however, clarified that if any lawyer "is assisting the client in the crime", then he can be summoned.

The court was hearing a suo motu matter initiated on July 8 after the Enforcement Directorate summoned senior lawyers Arvind Datar and Pratap Venugopal for their offering of legal opinions in a case.

Senior advocate Vikas Singh, appearing for Supreme Court Bar Association and senior advocate Atmaram Nadkarni and Vipin Nair for the Supreme Court Advocates-on Record Association recorded their opposition to the summons issued by the investigating agencies.

"It would have a chilling effect on the legal profession, if lawyers can be summoned arbitrarily. If lawyers can be routinely summoned for advising clients, no one will dare provide counsel in sensitive criminal cases,” Singh said.

He stressed that there should be adequate safeguards similar to those followed by the CBI should be implemented.

Singh suggested, the summoning order should come from the senior Superintendent of Police of a district and then be scrutinised by a judicial magistrate before issuance.

The SCAORA submitted summons against lawyers constituted an impermissible transgression of the sacrosanct principle of lawyer-client privilege. "This pose a serious threat to the autonomy, independence, and fearless functioning of the Bar," he said.

On behalf the SCAORA, he asked the court to examine the legality and propriety of such actions, safeguard the constitutional and professional protections afforded to advocates, and lay down appropriate guidelines to prevent any further erosion of the independence of the Bar and misuse of executive power.

Attorney General R Venkataramani submitted he did not support the summons against the lawyers.

Solicitor General Tushar Mehta also said that lawyers should not be summoned merely for offering legal advice.

"The privilege of communication between a lawyer and a client must be respected. The profession itself is protected under the proviso,” Mehta pointed out.

He, however, contended, immunity cannot be claimed only on the ground that one is a lawyer.

He expressed reservations over the proposal for magisterial oversight for summons to lawyers, as it might violate Article 14 of the Constitution, since a summons to a non-lawyer can be issued in the normal course.

Senior advocates Mukul Rohatgi, Sidharth Luthra, Vijay Hansaria, Amit Desai and Shoeb Alam also made brief submissions.

The bench directed that written suggestions submitted by SCBA and SCAORA should be forwarded to the Solicitor General and the Attorney General within three days, and fixed the matter for further hearing to August 12.