Advocate-Client Confidentiality

Advocate-Client Confidentiality

  • Context: 

  • The Supreme Court recently issued directions barring police or prosecuting agencies (like ED, CBI) from summoning legal professionals to reveal confidential communications with their clients. 

  • The judgment was delivered in a suo motu case taken up by the court after the Enforcement Directorate (ED) summoned two senior advocates in connection with a probe 

  • Constitutional Protection (Article 20(3)) 

  • Article 20(3): Self Incrimination 

“No person accused of any offence shall be compelled to be a witness against himself” 

  • The Supreme Court held that compelling a lawyer to disclose client communications amounts to an outrageous infringement of the client's constitutional right against self-incrimination under Article 20(3). 

  • Section 132 of Bharatiya Sakshya Adhiniyam (BSA), 2023 

  • This law, which replaced the Indian Evidence Act, states that communications between legal advisers and their clients are privileged. 

  • An advocate is not allowed to disclose any communication made in confidence, even after employment has ceased. 

  • This privilege is not absolute.  

  • Confidentiality can be breached in three specific circumstances: 

  • If the client gives express consent to the disclosure. 

  • The communication pertains to an illegal purpose 

  • The advocate observes that a crime or fraud is being committed during the course of the employment. 

  • Thus, Section 132 legally protects advocates from being forced to divulge confidential information, reinforcing the professional ethics under the Advocates Act, 1961. 

  • Supreme Court's Directions 

  • The court sought to balance evidentiary privilege with the procedural requirements of an investigation. 

  • Investigating agencies cannot summon a lawyer merely to reveal what a client has shared. 

  • If an officer believes an exception applies the summons must: 

  • Spell out the specific facts that justify the exception. 

  • Have written approval from a superior officer (not below the rank of Superintendent of Police) 

  • The privilege covers lawyers in litigation, advisory, or pre-litigation work.  

  • It does not cover in-house legal advisers who are salaried employees. 

  • Thus, Section 132 of the BSA, 2023 gives this confidentiality statutory backing, defining when — and only when — it can be lifted.