Supreme Court Clarifies: Advocates Can’t Be Forced to Reveal Digital Communications

The Supreme Court of India has issued crucial directions to protect the confidentiality of lawyer–client communications, ensuring that investigating officers cannot summon advocates without valid legal reasons.

A Bench comprising Chief Justice of India BR Gavai and Justices K Vinod Chandran and NV Anjaria clarified that advocates cannot be called or compelled to disclose what their clients have told them, except in rare cases allowed under law.

Under Section 132 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), lawyers are generally prohibited from revealing communications with their clients. However, the law allows exceptions — for instance, when such communication involves something illegal or fraudulent, or when the client gives consent.

The Court observed that the legal position is already clear and that the new directions are meant to remind police officers to act lawfully. The Bench also noted that any such summons must be handled carefully and only after approval from a senior officer.

Key Directions Issued by the Supreme Court

The Court laid down several safeguards to prevent police misuse of power and to protect the professional independence of lawyers:

• No arbitrary summons: Lawyers representing accused persons cannot be summoned merely for giving advice or appearing in a case, unless the situation falls within one of the exceptions under Section 132 of the BSA.
• Prior approval needed: Every summons must have written approval from a superior officer, not below the rank of Superintendent of Police, with recorded reasons for invoking an exception.
• Clear justification: The summons must clearly mention how the case fits into an exception under Section 132.
• Judicial review available: Such summons can be challenged before a court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).
• Scope of privilege: The privilege under Section 132 covers not only courtroom matters but also non-litigation and pre-litigation legal advice.
• Documents not covered: The privilege does not extend to documents in the possession of the lawyer or client. In criminal cases, their production is governed by Section 94 of the BNSS and Section 165 of the BSA; in civil cases, by Order XVI Rule 7 of the CPC and Section 165 of the BSA.

Safeguards on Seizure of Digital Devices

The Court also addressed the increasing trend of authorities seizing lawyers’ digital devices such as laptops or phones.

• If a lawyer’s device is to be seized, it must first be produced before a jurisdictional court.
• The court must issue a notice to the lawyer, allowing them to raise objections.
• If the objection is rejected, the device can be opened only in the presence of the lawyer and client, who can bring a technical expert of their choice.
• The court must ensure that the confidentiality of other clients is not affected. Only the data relevant to the investigation can be examined.

This direction ensures that the privacy and professional confidentiality of lawyers remain intact, even in the digital age.

Clarification on In-House Counsels

The Supreme Court also clarified that in-house counsels employed by companies are not “advocates” under the BSA and therefore cannot claim privilege under Section 132.

However, they are protected by Section 134 of the BSA, which states that no one shall be forced to disclose in court any confidential communication with their legal adviser. This protection, the Court said, applies only to communication between an in-house counsel and the company’s clients or customers, not between the employer and the counsel.

Why This Judgment Matters

This ruling strengthens professional independence and confidentiality in the legal system, which are essential to ensure trust between lawyers and their clients.

By introducing written approvals, judicial oversight, and digital privacy safeguards, the Supreme Court has reinforced that lawyers cannot be treated as tools of investigation. Their duty is to represent and advise clients within the framework of law, and that role deserves legal protection.

This judgment is a timely reminder that legal privilege is the cornerstone of justice, enabling clients to speak freely with their lawyers without fear of misuse or surveillance.