Lawyers across the country are up in arms over the recent Enforcement Directorate (ED) summons issued to Senior Advocate Arvind Datar over a professional legal opinion..Though the summons was later withdrawn, the incident has ignited a fierce debate about legal professional privilege, bringing renewed attention to the protections for lawyers under the Indian Evidence Act, 1872..President of the Supreme Court Bar Association and Senior Advocate Vikas Singh issued a stark warning about the implications of the ED's action."This action of ED strikes at the root of independence of the judiciary. The day is not far when ED will make judges accused for handling matters of accused if the ED is allowed to make lawyers accused like this," he said..Senior Advocate Sanjoy Ghose was equally emphatic in his condemnation of the summons, describing the move as an unprecedented assault on legal principles."It is the most egregious attack on the rule of law as the message is that if a lawyer dares to represent a client against the state agency, he or she will be subject to vindictive harassment. The ED has to apologise and the officer who dared to take this action must be immediately suspended and proceeded against departmentally. I hope the bar associations will take this issue up with the seriousness that it deserves," he stated..Similarly, the Supreme Court Advocates-on-Record Association (SCAORA) issued a statement objecting to the summons, raising concerns over its broader implications for the legal profession.In the statement dated June 16, SCAORA described the ED’s action as “unwarranted” and expressed concern over what it termed a trend of “investigative overreach” affecting the legal profession and the functioning of the rule of law.The Delhi High Court Bar Association too deplored the attempt by the officials of ED to issue summons to Datar."Such attempts not only undermine the independence of the profession but also seriously impinge the constitutional rights of being defended by a lawyer of one’s choice and a fair trial," the DHCBA said in a resolution passed on June 17. On June 17, the Gujarat High Court Advocates Association held an emergency general body meeting to address the issue.The association headed by President Brijesh Trivedi unanimously condemned this action as a violation of legal profession independence and practitioners' rights. The bar body demanded immediate government intervention to frame rules protecting attorney-client privilege under the Indian Evidence Act, 1872, and the Bharatiya Sakshya Adhiniyam, 2023, while calling for guidelines to safeguard advocates' professional conversations with clients..Senior Advocate and DMK Member of Parliament P Wilson also took strong exception to ED's action."The summons issued by ED to Mr. Arvind Datar, Senior Counsel to come for enquiry in Bombay for a legal opinion/advice tendered by him to a client goes against the basic tenets of attorney-client privilege and the immunity available to lawyers for acts done in the course of their profession. What next? Summons to judges who acquit persons accused by ED? Summons to doctors who treat accused? If the prosecuting agency can summon a lawyer who tenders legal advice to the accused, that is an attempt to browbeat and threaten the legal practitioner from defending his client. This has a devastating effect on the fundamental right of an accused to access to justice and fair trial and is the hallmark of a dictatorial regime, not a democracy," Wilson said on X..The ED summons was issued to Datar in connection with its investigation into the Employee Stock Option Plan (ESOP) granted by Care Health Insurance to former Religare Enterprises chairperson Rashmi Saluja.The summons pertained to a legal opinion rendered by Datar supporting the grant of stock options to Saluja, which is now the subject of parallel scrutiny by both the ED and the Insurance Regulatory and Development Authority of India (IRDAI). The agency is examining whether the issuance of over 22.7 million ESOPs - valued at more than ₹250 crore - was in contravention of regulatory norms or part of a larger scheme involving financial impropriety.However, subsequently, the ED withdrew the summons. According to a news report, Datar is said to have told ED officials that lawyers cannot be summoned for investigations involving their clients. Citing professional privilege, he is also understood to have stated that lawyers are prohibited from disclosing legal advice given to their clients..The controversy surrounding Datar's summons hits at the root of Section 126 of the Indian Evidence Act, 1872, which forms the bedrock of attorney-client privilege in India. This section explicitly states:"No barrister, attorney, pleader or vakil, shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course of and for the purpose of his professional employment."The privilege under the Evidence Act has deep roots. Drafted during British rule by Sir James Fitzjames Stephen, the Indian Evidence Act intentionally codified attorney-client confidentiality as essential to the adversarial legal process. Post-independence, Indian courts have preserved this ethos, treating legal privilege as fundamental to the rule of law.This provision, enacted 150 years ago, was designed to ensure that clients could communicate freely with their legal advisors without fear of disclosure, thereby maintaining the integrity of the legal system..The Evidence Act's protection extends beyond the advocate-client relationship:Section 127 protects interpreters, clerks, and servants of attorneys with the same immunity;Section 128 addresses when privilege is waived by volunteering evidence;Section 129 ensures that no one can be compelled to disclose confidential communications with their legal advisor unless they offer themselves as witnesses.. Bakaullah Mollah v. Debiruddi Mollah: The Calcutta High Court held that communications made to an advocate during the course of professional engagement are inadmissible, reaffirming the inviolability of Section 126.Anil Vishnu Anturkar v. Chandrakumar Popatlal Baldota: The Bombay High Court ruled that a former advocate cannot be summoned to confirm or identify privileged communications—a principle directly applicable to the Datar matter.CBI v. K. Narayana Rao: The Supreme Court drew a clear line - a lawyer can only be prosecuted if they actively conspire in fraudulent conduct. "Merely because his opinion may not be acceptable, he cannot be mulcted with criminal prosecution, particularly in the absence of tangible evidence that he associated with other conspirators," the top court said. Gopi Kishan v. State of Rajasthan: The Rajasthan High Court reinforced this line, holding that incorrect legal advice may attract professional liability, but not criminal prosecution, sans proof of intent or misconduct..Article 20(3) of the Constitution guarantees that “no person accused of an offence shall be compelled to be a witness against himself.” This right, read with Section 126, creates a dual shield:For clients: They cannot be compelled to disclose confidential legal advice that may incriminate them.For lawyers: They cannot be forced to reveal privileged advice, particularly when doing so risks incriminating their clients or themselves.In Selvi v. State of Karnataka, the Supreme Court described the right against self-incrimination as essential to dignity and a fair trial..Together, Section 126 and Article 20(3) provide a powerful legal and constitutional bulwark against State intrusion into the sanctity of legal advice. According to experts, the ED’s action in summoning Arvind Datar has triggered the alarm not merely for its immediate effect, but for the precedent it threatens to set.
