Various Bar associations on Friday condemned the Enforcement Directorate’s “overreach” in summoning advocates over legal advice provided to clients, and urged Chief Justice of India B.R. Gavai and the Supreme Court to take suo motu cognisance and lay down guidelines.
The Bar Association of India (BAI), one of the lawyers’ bodies that castigated the ED, has attorney-general R. Venkataramani as its ex-officio chairman and carried his name on the letterhead of its statement.
“The Bar Association of India expresses grave concern over recent summons issued by the Directorate of Enforcement (ED) to senior advocates Arvind Datar and Pratap Venugopal,” BAI president Prashant Kumar said in the statement.
“The summons pertained to legal opinions given by (the) senior advocates in a matter which is now under investigation by the ED. Both summonses were subsequently withdrawn.”
The statement said the ED’s actions represented “a direct and unacceptable infringement on the independence of the legal profession that undermines the very sanctity and role of the legal profession in supporting the rule of law and aiding the justice system”.
“Looking to question an advocate for giving a professional legal opinion sets a dangerous precedent which will create a chilling effect on lawyers across the country,” the statement added.
Venugopal and Datar received the ED summonses in connection with the agency’s money-laundering investigations into Care Health Insurance’s grant of stock options to former Religare Enterprises chairperson Rashmi Saluja. Venugopal and Datar had given legal advice to Care in the matter.
While the ED had withdrawn the summonses in the face of widespread criticism, the BAI said the trend of targeting lawyers must stop.
“The issuance of summons is also an egregious example of overreach by the agency and is an attempt to undermine attorney-client privilege protected under the provisions of Bharatiya Sakshya Adhiniyam,” the BAI said.
“The Act clearly provides (that) information for a case should only be sought from the clients themselves… and a breach of it will potentially undermine trust in India’s credentials as a rule-of-law-based democracy.”
The Supreme Court Advocates-on-Record Association, in a statement issued through its president Vipin Nair, said the summons represented “a deeply disquieting development which has serious ramifications for the independence of the legal profession and the foundational principle of lawyer-client confidentiality”.
“…I earnestly request your Lordships to consider taking urgent suo motu cognisance of the matter,” it said.
It urged the Chief Justice of India and the Supreme Court to lay down guidelines “…to protect the independence of the Bar, the dignity of the legal profession and prevent any misuse of executive power that undermines its independence”.
The Supreme Court Bar Association, through its secretary Pragya Baghel, described the ED’s action as “a disturbing trend”.
It referred to multiple Supreme Court judgments that said every person was entitled to legal representation and thus advocates could not be targeted for renderingprofessional advice in the light of Section 132 of Bhartiya Sakshya Adhiniyam of2023, which deals with professional privilege.
“We call upon the ED to exercise restraint, respect the independence of the Bar and ensure that the machinery of investigation is not misused to target legal professionals discharging their duties within the bounds of law,” the statement said.
“We also urge the Hon’ble Union Law Minister and the Hon’ble Chief Justice ofIndia to take cognisance of this matter and uphold the dignity and autonomy of the legal profession.”
The ED said in a statement that it had “issued a circular for the guidance of the field formations that no summons shall be issued to any advocate in violation of Section 132 of the Bhartiya Sakshya Adhiniyam, 2023”.
“Further, if any summons needs to be issued under the exceptions carved out in proviso to Section 132 of the BSA, 2023, the same shall be issued only with the prior approval of the director, ED,” it added.