The Peril of Summoning Counsel: How ED’s Move Threatens Advocate–Client Privilege

 The Peril of Summoning Counsel: How ED’s Move Threatens Advocate–Client Privilege

On June 12, 2025, the Enforcement Directorate (ED) shook India’s legal community by summoning Senior Advocate Arvind Datar to answer questions about an advisory opinion he had delivered to Care Health Insurance on ESOPs (employee stock ownership plans). Within hours, outraged bar associations and advocates protested, and the ED quietly withdrew the summons—only to issue another, equally alarming, call-up to Senior Advocate Pratap Venugopal days later.

Why This Matters
The right to legal counsel is not a mere procedural nicety; it is a bedrock principle of the rule of law. Under the Bharatiya Sakshya Adhiniyam (BSA), 2023, communications between lawyers and their clients are expressly privileged. Section 132 of the BSA bars any compulsory disclosure of those communications unless the client provides explicit consent. In plain terms, a lawyer’s honest advice—correct or flawed—cannot, on its own, justify coercive inquiries.

Yet in these recent ED summons, no allegation of collusion, inducement, or misconduct by the advocates was even hinted at. The ED’s move amounts to a misuse of statutory power and an unwarranted breach of professional autonomy. Even a fleeting summons can cast a long shadow: if lawyers fear that candid advice may expose them to investigation, they will inevitably err on the side of caution, compromising the quality and integrity of their counsel.

Professional Independence Under Siege
Advocates in India are bound by the Bar Council of India’s Rules to advise “without fear or favor.” This shield is not a personal privilege but a public good: frank legal advice, especially on complex commercial or regulatory issues, underpins sound decision-making, effective corporate governance, and robust defence of individual rights.

When executive agencies wander unchecked into the realm of legal advice, they erode the delicate balance between the Bar, the bench, and the State. Today it may be ESOP opinions; tomorrow, it could be defence lawyers explaining their strategy to criminal clients. The result is the same: self‑censorship, cautious hedging, and a shrinking cadre of fearless advocates willing to challenge executive overreach.

A Chilling Effect with Broad Consequences
1. Psychological Toll: Lawyers will second‑guess their analyses, worried that tomorrow’s investigation may question today’s counsel.

2. Self‑Censorship: Practitioners may decline sensitive or controversial matters, depriving clients—corporate or individual—of full legal insight.

3. Weakened Rule of Law: If only pliant voices dare to speak, the adversarial process falters, courts lose vital perspectives, and public confidence erodes.

Reformers’ Blueprint
To stem this tide, India needs coordinated action on several fronts:

• Judicial Clarification: The Supreme Court or High Courts should issue a declaratory judgment affirming that legal advisers cannot be summoned absent credible evidence of complicity in wrongdoing. Such a pronouncement would enshrine the privilege in binding precedent.

• Statutory Reinforcement: Parliament could amend the BSA or related statutes, explicitly insulating lawyer–client communications from use in investigative settings without a criminally relevant nexus.

• Institutional Engagement: Bar Councils and bar associations must negotiate formal protocols with enforcement agencies, setting clear boundaries for when and how counsel may be approached.

• Bar Solidarity: Silence is consent. The legal fraternity must speak with a unified voice to defend its professional independence.

Conclusion
The swift withdrawal of the ED’s summons in the face of bar protests demonstrates that public pressure can check misguided investigations. But it does not guarantee future restraint. Unless the legal community secures enduring safeguards—through judicial rulings, statutory amendments, and institutional agreements—the independence of counsel remains at risk.

In a constitutional democracy, the fearless advocate is an essential bulwark against power unchecked. Let this episode serve as a clarion call: the integrity of our justice system demands that lawyers offer candid advice without fear, and that executive agencies respect the sacred boundary between counsel and complicity.