Summons To Lawyers Only After Magistrate's Approval; Fees Shouldn't Be Presumed As Crime Proceeds : Bar Bodies To Supreme Court

The Supreme Court on Tuesday (July 29) heard the suo motu case "In Re : Summoning Advocates Who Give Legal Opinion or Represent Parties During Investigation of Cases and Related Issues", which was initiated after the instances of the Enforcement Directorate (ED) issuing summons to two senior lawyers.After a brief hearing of the concerns raised by various bar bodies, a bench comprising Chief Justice of India BR Gavai and Justice K Vinod Chandran posted the matter to August 12 for hearing the Union's response.Senior Advocate Vikas Singh, for the Supreme Court Bar Association, submitted that they have given written submissions on the proposed guidelines. "If a lawyer can be called in any case, it will have a chilling effect. We don't want the profession to suffer, if this is done routinely, no lawyer will think of advising someone in a sensitive criminal case," Singh said. He proposed that there should be a judicial oversight before a summons is issued to an advocate. The decision to issue summons should be taken by a senior SP-level officer and can be issued only after approval by the Magistrate, he suggested.Senior Advocate Atmaran Nadkarni, for the Supreme Court Advocates-on-Record Association (SCAORA), submitted that the circular issued by the ED stating that a summons to an advocate can be issued only with the approval of the Director is not a sufficient safeguard. "It is neither there, nor here," Nadkarni submitted, saying that earlier, it was the Deputy Director, and now the Director has replaced. He also advocated for judicial oversight. "The other side cannot even threaten the lawyer; it amounts to contempt of court, this is against the justice delivery system," he argued. He raised concerns about the probing of the lawyers' laptops and devices, since they contain the details of many accused persons.Attorney General for India R Venkataramani, stating that he was not supporting the issuance of summons to lawyers, said that he has spoken to the authorities about the concerns.Solicitor General of India Tushar Mehta stated his stand was that "a lawyer cannot be summoned merely for giving an advice to a client" and that an advocate will lose the privilege only if his/her acts come within the proviso to Section 126 of the Evidence Act. He however urged the bench not to take a view merely on the basis of "one stray incident."CJI Gavai then pointed out there was not one incident, but two, as two senior lawyers were issued summons. "Immediately it was brought to the notice of the highest executive and within 6 hours withdrawn," SG said.SG also objected to the proposal for Magisterial oversight for summons to lawyers, saying that it might violate Article 14, since a summons to a non-lawyer can be issued in the normal course.Senior Advocate Mukul Rohathi raised the issue of in-house counsel/general counsel, saying that they should also be protected. Senior Advocate Vijay Hansaria submitted that if a lawyer is forced to disclose the privileged communications with the client, it can lead to the violation of the right against self-incrimination under Article 20(3).Senior Advocate Siddharth Luthra raised a special issue with respect to lawyers appearing in money laundering cases- the Enforcement Directorate (ED) could link the fees received by the lawyer to the proceeds of crime. In this connection, Senior Advocate Shoeb Alam mentioned that the bank account of the law firm Amarchand Mangaldass was frozen and was lifted only after an application. "While the ED is testing about the fees received, the magistrate should presume that the fee received is the bona fide fee," he suggested.SG Tushar Mehta said that immunity cannot be claimed only on the ground that one is a lawyer. He mentioned one incident, where a fugitive told the authorities that his documents were in the law firm's office, which could be collected. Assistance to the client should be within the four corners of the law, SG cautioned.CJI clarified that the Court is only concerned with the issue whether a lawyer should be summoned merely on the basis of a legal opinion."We have said in beginning itself that if somebody is assisting the client in the crime, then he be summoned but not merely for giving legal advice," CJI said.Senior Advocate Amit Desai said that there should be guidelines against the search of privileged documents in law firms.On the last hearing, the Court stressed the need to have guidelines to address the issue of the Enforcement Directorate (ED) and other investigating agencies summoning lawyers over the legal advice given to clients in criminal casesRecently, the action of the Enforcement Directorate in issuing summons to two Senior Advocates- Arvind Datar and Pratap Venugopal- in respect of the legal advice given by them had led to widespread outrage. Following the protests by the bar associations, the ED withdrew the summons issued to the lawyers and issued a circular that summons to lawyers cannot be issued without the prior...

Summons To Lawyers Only After Magistrate's Approval; Fees Shouldn't Be Presumed As Crime Proceeds : Bar Bodies To Supreme Court

Anmol Kaur Bawa

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