1. The Supreme Court of India has delivered a significant judgment clarifying whether, when and how investigating agencies may summon advocates, and what protections attach to legally privileged communications. Against the backdrop of recent instances of summonses issued to counsel during investigations, the Court has reasserted the importance of attorney–client privilege under the Bharatiya Sakshya Adhiniyam, 2023 (“BSA”). The Supreme Court also delineated the limited circumstances in which exceptions apply which may allow an investigating agency to summon an advocate in an investigation. The Supreme Court has also provided operational directions to curb investigative overreach. The decision also addresses the production of documents and digital devices and squarely answers the long-running question of how privilege applies to in‑house counsel in India.

Background

2. India recognizes legal professional privilege through a combination of statute and judicial precedent. The primary statutory sources are sections 132 to 134 of BSA (erstwhile sections 126 to 129 of the Indian Evidence Act, 1872) and section 227 of the Companies Act, 2013. Together, these provisions protect privileged communications between a client and legal advisers and prohibit disclosure of the contents or condition of documents with which the adviser has become acquainted in the course and for the purpose of professional employment. The protection continues even after the professional engagement ends.
3. At its core, the doctrine safeguards candid attorney–client communications and legal advice. Courts have consistently underscored that the privilege belongs to the client and protects both communications seeking advice from the attorney and the advice itself, including documents created for the dominant purpose of obtaining legal advice or in anticipation of litigation.
4. In some recent cases, investigative agencies summoned advocates based on legal advice given to their client. The same was resisted by such advocates and retracted by the investigative agency. However, the issue, having wide ramifications was taken up suo motu by the Supreme Court in the case titled “IN RE: Summoning Advocates who give legal opinion or represent parties during investigation of cases and related issues”^[1] (“Judgement”).
5. The issues raised in the case were further expanded by way of various representations and interventions out of which the following major issues were at the forefront:

• The court ought to devise guidelines that create peer-review committees that the investigative agency would have to apply to, for summoning an advocate;
• The court ought to set guidelines on search and seizure of digital devices in the context of legal privilege;
• The court ought to clarify that in-house counsels will be extended the protection of legal privilege even if they do not strictly fall within the statutory definition of an advocate under the Advocates Act, 1961 (“Advocates Act”).

6. The question posed by in-house counsels was an important clarification that was sought since under the Indian legal system the Advocates Act, is the relevant Act that amends and consolidates the law relating to the legal practitioners in India. “Advocate” is defined under the Advocates Act to mean an advocate entered in any roll under the provisions of this Act. However, under the Bar Council of India Rules, an advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practice, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practice as an advocate so long as he continues in such employment.^[2]

The Judgment 

7. The Court’s answer to the threshold question is emphatic: an investigating agency, prosecuting agency, or police cannot summon a lawyer merely because the lawyer gives a legal opinion or represents a party in the matter. Section 132 of the BSA codifies attorney–client privilege and prohibits disclosure – without the client’s express consent – of communications made in the course and for the purpose of professional service, the contents or condition of documents acquainted with in that course, and advice given to the client.
8. The Court has in all fairness qualified the above directions by holding that privilege is robust but not absolute. The statutory proviso identifies two narrow exceptions: communications made in furtherance of an illegal purpose, and facts observed by the advocate, in the course of the engagement, showing that a crime or fraud has been committed after the engagement commenced. The Court underscores that any summons relying on these exceptions must:

• Explicitly state the facts that bring the request within a Section 132 exception; and
• Be issued only upon prior written satisfaction of a superior officer not below the rank of Superintendent of Police, recorded with reasons.

9. Importantly, such a summons is amenable to judicial review under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”).

Nuances highlighted before the Court

10. On the expanded scope of the case, the Court rejected proposals for bespoke guidelines or peer-review committees, holding that the statutory scheme already provides adequate protection and judicial oversight.
11. Although privilege is framed in the statute as a protection of the client, the judgment recognises that advocates may invoke the privilege on the client’s behalf, even in the client’s absence, to resist coercive demands for disclosure. The Court’s analysis ties privilege to constitutional guarantees: it prevents indirect erosion of the right against self-incrimination and preserves the integrity of the right to legal representation under Articles 21 and 22. Summoning a lawyer to “know the true details” about a case is impermissible and, in the Court’s view, evidences investigative failure rather than lawful inquiry.
12. The Court also reaffirmed that privilege extends beyond litigation contexts to non‑litigious and pre‑litigation advice. Legal advice taken from an advocate whether sporadically, on retainer, or in isolated instances is protected, all of which is essential to ensuring candid, full and frank communications that underpin effective legal counsel.
13. The Court has also laid down guidelines when production is sought by any investigative agency in a criminal investigation. The Court has clarified that the device or document sought by the investigative agency must be produced before the jurisdictional court and is not to be examined by the investigating officer. The jurisdiction court must decide objections to production and admissibility after hearing both the advocate and the client.
14. For search and seizure of digital devices of an advocate, the Court imposes heightened procedural safeguards. If objections of legal privilege are overruled during the production of the device before the jurisdictional court, the device may be accessed only in the presence of the client and advocate, with the assistance of a person of their choice who is conversant in digital technology. The Court must strictly confine discovery to what is sought and permissible, taking care not to compromise confidentiality relating to other clients or matters.
15. These measures operationalize privilege at the information‑gathering stage and align with broader jurisprudence cautioning investigative bodies against intrusions into privileged or confidential domains.

Clarification regarding in-house counsels

16. The judgment lastly clarifies the position of in‑house counsel in India. By reference to the Advocates Act and current Bar Council of India Rules (including the present formulation of Rule 49), the Court holds that full‑time salaried in‑house counsel are not “Advocates” practising in courts for purposes of Section 132. As such, communications with in‑house counsel do not attract the Section 132 privilege. The Court distinguishes in‑house counsel from independent lawyers on the basis of employment ties and consequent limits on professional independence.
17. However, Section 134 of the BSA continues to protect confidential communications with legal advisers in the narrow context of compulsion to disclose to the Court, subject to the statutory caveats where the client offers themselves as a witness and the Court deems certain communications necessary to explain evidence already given.
18. The principle expounded by the Court articulation hints that while legal advice functions within corporates are recognised, the statutory privilege in India is keyed to the status of advocates practicing law independently.

Practical implications of the Judgment

19. In a recent case before the Delhi High Court^[3], GST officials conducted a search and seizure operation of confidential information relating to an ongoing investigation into a gaming company. This resulted in the seizure of an advocate’s CPU and the GST Department alleged that the advocate was in partnership with the company – entitled to 0.7% of its revenue. On an earlier occasion, the Delhi High Court ordered that GST officials must not open the CPU or computer of any advocate without the advocate’s presence and consent. Further, the Court allowed the CPU to be parsed and cloned in the presence of the advocate, two lawyers, and a forensic expert acting on the advocate’s behalf. The High Court also directed two senior officials of the Information Technology Department of the Delhi High Court to be present when the CPU was accessed. In addition, one forensic expert on behalf of the GST Department was permitted to be present when the CPU was accessed. The Delhi High Court indicated that, once the cloning and parsing process is complete, it will consider the implications of the Judgment on the case.

Conclusion

20. The Supreme Court’s judgment is a timely reaffirmation of attorney–client privilege as a cornerstone of the justice system and as a practical shield in investigations. It forecloses casual incursions into privileged communications, anchors exceptions in narrow statutory terms, and channels disputes to judicial oversight. By clarifying the distinct treatment of in‑house counsel and by prescribing court‑centered controls for documents and devices, the Court has provided much needed clarity on the issue while some issues still need a forward-looking approach.

[1] Suo Motu Writ Petition (Criminal) No.2 of 2025

[2] Rule 49, Bar Council of India Rules

[3] Puneet Batra v. Union of India & Ors., W.P.(C) 11021/2025