Lawyer-Client Privilege Cannot Shield Crime—No One Is Above Law: Solicitor General Tells Supreme Court
Solicitor General Tushar Mehta presented a strong case before the Supreme Court on Tuesday, asserting that while lawyer-client privilege is one of the most sacred protections under the law, it ceases to apply when used to aid unlawful acts.
The suo moto proceedings arose after the Enforcement Directorate (ED) summoned senior advocates Arvind Datar and Pratap Venugopal, prompting objections from the Supreme Court Bar Association (SCBA) and the Supreme Court Advocates-on-Record Association (SCAORA), who described the move as a “disturbing trend” threatening the legal profession’s foundations. These bodies urged the Chief Justice of India to take suo motu cognisance.
In the matter titled Re: Summoning Advocates Who Give Legal Opinion or Represent Parties During Investigation, Mehta reaffirmed the importance of legal professional privilege. Derived from common law and Sections 132 to 134 of the Bharatiya Sakshya Adhiniyam (BSA), this privilege allows clients to communicate openly, ensuring effective legal counsel and defence. “It is among the most sacrosanct principles of law and must be preserved,” he said, highlighting its role in upholding respect for the rule of law.
However, Mehta clarified that this protection is not absolute. Referring to the proviso in Section 132, he explained that communications made to facilitate illegal acts—such as fraud, evidence fabrication, or document forgery—lose their privileged status. “A lawyer cannot be summoned merely for giving legal opinion,” he stated. “But if involved in actions beyond professional duties constituting an offence, the same laws that apply to others will apply to lawyers.”
He dismissed any notion of special immunity for lawyers, warning that blanket protection would create an unconstitutional “separate class,” violating Article 14 of the Constitution. He drew parallels with the now-invalidated Section 6-A of the Delhi Special Police Establishment Act, which shielded senior officials from corruption investigations until the Supreme Court ruled otherwise in the Vineet Narain and Subramanian Swamy cases.
Mehta’s position was unequivocal: lawyers are citizens first. “There is no statutory or constitutional provision granting advocates blanket immunity from summons or investigation when there is prima facie evidence of their involvement in offences,” he emphasised. “Claiming such immunity under the guise of privilege would amount to unconstitutional discrimination.”
Granting such immunity, he argued, would create an unjustified classification, lacking any rational basis and failing the test under Article 14. The privilege is intended to protect legitimate professional communications, not to shield personal involvement in criminal activities. “Representation in fiduciary capacity does not bar investigating agencies from summoning lawyers if reasonable grounds suggest their complicity in crime,” he added.
On investigative powers, Mehta stressed that under the Bharatiya Nagarik Suraksha Sanhita, police have the legal right and duty to investigate cognisable offences without prior court approval. This separation between investigation and adjudication has been settled law since Khawaja Nazir Ahmad (1944) and reaffirmed in JAC Saldanha (1980). Courts should refrain from interfering in investigations unless fundamental rights are at risk.
Mehta also rejected calls for new judicial guidelines, stating that existing laws such as the BSA, Companies Act, and Civil Procedure Code already provide a balanced framework for privilege and accountability. Past Constitution Benches have ruled that Article 142 cannot override clear legislative provisions.
He warned that creating an unaccountable zone for lawyers risks transforming privilege into a shield to obstruct justice. The constitutional guarantee of equality before law demands that all citizens—be they advocates, bureaucrats, or private individuals—be held accountable for offences committed.
