The Supreme Court criticized the Enforcement Directorate for summoning lawyers like Arvind Datar and Pratap Venugopal over legal advice, calling it a threat to judicial independence. CJI Gavai said the ED is “crossing all limits” and called for guidelines to protect lawyer-client privilege. The matter will be heard next on July 29.
Representational Image. File Pic
The Enforcement Directorate is "crossing all limits", the Supreme Court said on Monday as it expressed serious concern over the agency summoning advocates for offering legal advice or representing clients during investigations. It also called for guidelines on the matter.
A bench of Chief Justice B R Gavai and Justice K Vinod Chandran was hearing a suo motu case to address the implications of such actions on the independence of the legal profession.
This comes in the wake of the ED summoning senior lawyers Arvind Datar and Pratap Venugopal.
"Even if it is wrong, the communication between a lawyer and the clients is privileged communication. How can notices be issued against them? There should be some guidelines," the CJI said. The CJI continued, "They (ED) are crossing all limits."
While responding to submissions that recent ED notices to legal professionals like senior advocate Datar could have a chilling effect on law practice, the CJI said, "Guidelines should be framed."
Attorney General R Venkataramani and Solicitor General Tushar Mehta said the issue was taken up at the highest level and the probe agency had been asked to not issue notices to the lawyers for rendering legal advice. Venkataramani early on in the hearing said he had a word with the ED officials and the summons to lawyers were wrong.
"Lawyers cannot be summoned for rendering legal opinions," Mehta agreed with Venkataramani. Mehta, however, said there were attempts to malign institutions by creating false narratives.
Senior advocate and Supreme Court Bar Association president Vikas Singh illustrated on issue with China and Turkey, saying, "India should not be going the way of other countries which cracked down on the independence of the legal profession."
He said, "My lords may set it down once and for all, because the European Commission on Human Rights also has something to say. In Turkey, the entire bar association was disbanded. China also has a similar issue."
Advocates stressed that summoning lawyers, especially for giving legal opinions, was setting a dangerous precedent.
"Otherwise it will have a chilling effect on the whole justice delivery system. Lawyers will not be able to freely advise my lords," a lawyer said.
One lawyer said, "If this continues, it will deter lawyers from offering honest and independent advice." Even district court lawyers were facing undue harassment, the lawyer added.
The CJI pointed out the court being surprised by reports it came across. Mehta, on the other hand, cautioned against forming opinions based on media narratives.
"As far as general observations are concerned, sometimes misconstrued, depending upon individual cases. I am saying this, not the ED, there is a concerted effort to create a narrative against an institution. My lords may find in a few cases where there is overstepping¿," he said.
The CJI countered, "We are finding this (overstepping by ED) in many cases, it is not like we are not finding,¿ the CJI said. "We don't watch the news, haven't seen YouTube interviews. Only last week I managed to watch a few movies."
When Mehta referred to politicians accused in scams, attempting to shape public opinion, the CJI said, "We said it¿ don't politicise this."
"The moment I heard about Mr Datar, I immediately brought it to the notice of the highest executive," Mehta said.
The CJI then referred to the cases, which he heard during the day, against West Bengal chief minister, wife of Karnataka CM and BJP MP Tejasvi Surya and asked the lawyers representing political persons, state government and the ED not to politicise the court.
The CJI highlighted how the ED had been filing appeals even against well-reasoned orders only for the sake of filing them.
Justice Chandran in agreement with the CJI said, "How do you say that these narratives will influence us if we do not see them at all? Narratives will go on all over, people might be concerned, but you cannot say that we have been influenced by it."
The CJI said judgements were based on facts without being influenced by "so called narratives".
The bench directed parties, including the SCBA to file comprehensive notes on the issue and allowed intervention applications.
The matter would be heard on July 29. "Ultimately, we are all lawyers," the CJI said, stressing arguments in the courtroom should not be viewed adversarially.
On June 20, the ED said it had directed its investigating officers not to issue summons to any advocate in money laundering investigations being carried out against their clients. An exception to this rule can only be made after "approval" by the agency's director, it added.
The bar bodies urged the CJI to take suo motu cognisance of the matter.
On June 25, the top court said allowing police or probe agencies to directly summon lawyers for advising clients would seriously undermine the autonomy of the legal profession and was a "direct threat" to the independence of justice administration.
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