A Closer Look at Attorney-Client Privilege

In a significant ruling delivered in Suo Motu Writ Petition (Criminal) No. 2 of 2025, the Supreme Court of India has discussed the crucial protection afforded to attorney-client communications. The judgment emphasizes that an individual’s ability to seek legal advice must remain free from undue intrusion by investigative agencies. The case arose from a loan dispute filed at Odhav Police Station, following which the accused’s lawyer secured bail before the Sessions Court. Subsequently, the investigating officer issued a notice under Section 179 of the Bharatiya Nagarik Suraksha Sanhita, 2023, summoning the lawyer to assist in the inquiry. When the lawyer challenged this summons on constitutional grounds, the matter eventually reached the Supreme Court. The Court addressed four central issues: whether investigators may directly summon attorneys; whether judicial oversight is required when the lawyer’s role is suspected of exceeding representation; whether the statutory privilege under Section 132 of the Bhartiya Sakshya Adhiniyam, 2023 applies to in-house legal teams; and how that privilege extends if at all  to documents and digital devices held by the lawyer.

Turning first to the constitutional and statutory foundations, the petitioners invoked Articles 19(1)(g), 21, 20(3), 22(1) and 39-A of the Constitution, arguing that forced disclosure of lawyer-client communications undermines the right to legal representation and the right against self-incrimination. Meanwhile, Section 132 of the BSA (mirroring Section 126 of the Indian Evidence Act, 1872) protects communications between a lawyer and client from compelled disclosure unless made for an illegal purpose or if a crime or fraud is discovered after representation began. Holding that privilege is vital for effective defence and faithful legal representation, the Court concluded that authorities cannot bypass this protection through casual summons.

The Court clarified the law as follows: investigating officers must not summon lawyers simply to glean information about their client’s case. Where a privilege exception is suspected, the corresponding provision must be clearly specified in the summons, and prior written clearance from a Superintendent of Police or higher must be obtained. Further, under Section 528 of the BNSS, any such summons must express the legal ground and can be challenged before a court, thereby empirical oversight is built in. On the question of applicability to in-house counsel, the Court held that the protection under Section 132 does not extend to full-time employed legal advisers. Drawing on the Advocates Act, 1961 and precedent, the Court reasoned that only those registered as practicing advocates and independent of employment may claim the privilege. Because employed lawyers may face commercial pressures and divided loyalties, the statute does not treat them as “advocates” for privilege purposes. However, the Court did recognize that communications between in-house teams and external counsel may be protected under Section 134, but this protection ends once internal reporting to the organization occurs. Lastly, the Court dealt with documents and digital devices, noting that while the contents of privileged communication are protected, lawyers cannot refuse disclosure of physical documents per se. Investigators may access devices only if a court orders it, after notice to the affected parties, in presence of the lawyer and only to the extent strictly necessary and with assurance that other clients’ data is preserved.

This judgment marks a major reinforcement of the independence of legal counsel and the right to confidential advice. Organisations must reassess how they engage legal advisers and structure in-house representation, particularly in light of this decision’s distinction between external and employed lawyers. For practitioners and clients alike, the message is clear: lawyer-client privilege remains a cornerstone of our legal system, but its contours and connections to employment status and digital assets have been clarified and tightened.