For representative purposes.
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The story so far: On October 31, the Supreme Court affirmed the indispensable role of advocates in a constitutional democracy. A Bench comprising Chief Justice of India (CJI) B. R. Gavai, and Justices K. Vinod Chandran and N. V. Anjaria ruled that a lawyer cannot be summoned merely to disclose what a client has communicated, except where legal advice is used to commit or conceal a crime. The suo motu proceedings arose from a notice issued to an advocate by the Assistant Commissioner of Police, Ahmedabad, under Section 179 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), demanding his appearance “to know true details of the facts and circumstances” in a criminal case in which he was a defence counsel.
What are privileged communications?
Privileged communications refer to confidential exchanges between certain protected relationships, such as attorney-client and spousal, that the law shields from being disclosed or compelled as evidence in court. The underlying principle is to promote honesty and trust, thereby reinforcing justice and ethical responsibility. The Bharatiya Sakshya Adhiniyam (BSA), 2023, outlines these protections in Sections 128 to 134.
Notably, Section 128 protects ‘marital communications’, preventing either spouse from being compelled, or even permitted, to disclose any communication made ‘during’ marriage, even after its dissolution, without the consent of the person who made it, except in cases where one is prosecuted for a crime against the other or in suits between them. Likewise, Section 129 bars the release of unpublished official records relating to affairs of State without departmental approval in order to safeguard national interest. Further, the advocate-client privilege under Section 132 prohibits advocates from revealing professional communications.
What did the SC state?
The top court’s judgment is a concrete assertion that when the State intrudes into the lawyer-client relationship, it endangers the citizen’s right to equitable representation and the justice system’s structural integrity of a fair trial and rule of law. Section 132 of the BSA prohibits an advocate from disclosing any communication made to him in the course of professional engagement, even after employment has ceased, except in three circumstances: (1) if the client consents to it; (2) the communication pertains to illegal purposes; (3) the advocate observes criminal activity being carried out during the employment. Although, the privilege belongs to the client, an accused or litigant, its enforcement depends on the lawyer’s silence. This silence has long shielded not just the powerful but also those with no power such as women reporting sexual violence, accident victims negotiating hostile insurers, and the families of those lost to custodial excesses. In a justice system where about 3.9 lakh citizens are undertrials, this privilege is what keeps the promise of a fair defence alive.
It’s to safeguard this evidentiary privilege that the top court decided that an investigating/prosecuting agency or the police cannot directly summon a lawyer merely for appearing or advising in a case, unless there exists material showing that the summons falls within the exceptions of Section 132.
Moreover, by linking Section 132’s protection to Article 20(3)’s guarantee against self-incrimination, the judgment constitutionalises the privilege, which is a key element of a lawyer’s function. If a citizen cannot be compelled to confess, the State cannot achieve the same end indirectly by coercing the citizen’s lawyer to disclose confidential communication.
What about a lawyer’s role?
Through the verdict, the SC positions the advocate not as a private agent but as a ‘constitutional actor’, essential to the survival of the constitutional architecture of legal representation. This distinction matters because professional privilege is neither a perk for lawyers nor a shield that places them above the law. It is a safeguard for citizens. The SC makes that explicit: the privilege “ensures that no prejudice is caused to the accused whom the lawyer represents.” When the State summons a lawyer to divulge information about his client, it converts the advocate into an involuntary witness — collapsing the distance between defence and prosecution. The verdict rightly calls such acts a “blatant breach of the rule against non-disclosure,” one that undermines both Article 21’s guarantee of a fair defence and the constitutional promise of equality before law under Article 14.
Why is the verdict important?
This ruling indirectly strengthens the right to effective legal representation, a right the SC has long read into Article 21 and Article 22(1). The SC cited M.H. Hoskot versus State of Maharashtra (1978) and Hussainara Khatoon versus State of Bihar (1980), reminding that liberty without counsel is liberty in theory. At a time when investigating agencies routinely summon journalists, tax consultants, and even lawyers to “assist” investigations, the judgment restores institutional sobriety. It reminds the executive that investigative power is not unbounded. Section 179 of the BNSS empowers the police to summon witnesses, but that power stops at the lawyer’s door when ‘professional confidence’ is at stake.
Kartikey Singh and Mukula Sharma are lawyers based in New Delhi.
Published – November 13, 2025 08:30 am IST
