In-House Counsel Not Entitled To Privilege U/S 132 BSA As They Are Not Practicing Advocates In Courts: Supreme Court

The Supreme Court held that an In-house counsel will not be entitled to the privilege under Section 132 of the Bhartiya Sakshya Adhiniyam, 2023 (BSA), since they are not Advocates practicing in Courts as spoken of in the BSA.

The Court held thus in a suo-motu case arising out of a Reference made by a Bench of two Judges of the Apex Court in a Special Leave Petition (SLP) filed against a notice issued against an Advocate under Section 179 of BSA.

The three-Judge Bench comprising Chief Justice of India (CJI) B.R. Gavai, Justice K. Vinod Chandran, and Justice N.V. Anjaria observed, “In-house counsel will not be entitled to the privilege under Section 132 since they are not Advocates practicing in Courts as spoken of in the BSA. … The In-house counsel, however, would be entitled to the protection under Section 134 insofar as any communication made to the legal advisor of his employer, which however, cannot be claimed for the communications between the employer and the In-house counsel.”

The Bench said that an In-house counsel though is engaged in the job of advising his employer on questions of law would even then be influenced by the commercial and business strategies pursued by his employer and would always be beholden to his employer and obliged to protect their interest.

Senior Advocates Vikas Singh (President, Supreme Court Bar Association-SCBA), Atmaram N.S. Nadkarni, Siddharth Luthra, Shoeb Alam, and Advocate Vipin Nair (President, SCAORA) represented the lawyers, while Attorney General of India (AGI) R. Venkataramani and Solicitor General of India (SGI) Tushar Mehta represented the Union of India and State of Gujarat.

Court’s Observations

The Supreme Court after hearing the contentions of the counsel, noted, “A society called the General Counsels Association of India; members of which are the General Counsels and Legal Advisors of prominent companies, have filed an intervention application asserting their rights under Section 132 and 134. It is also claimed, based on Rule 49 of Chapter 2 Part VI of the Bar Council of India Rules, ‘Standards of Professional Conduct and Etiquette’ mandating the restriction in practising for persons in the rolls of the Bar Council who are in a regular employment; that, but for pleading and appearing in Courts they carry on the very same duties as legal advisors.”

The Court added that at first blush though the contention seems attractive, it cannot but observe that the fact of their regular employment with full salaries takes them away from the definition of an Advocate as defined under the Advocates Act, 1961 which has been incorporated in Section 132 of the BSA.

“Section 126 as was available in the Indian Evidence Act referred to “barrister, attorney, pleader or vakil” as professionals who would be entitled to claim non-disclosure of professional communications, which is a privilege conferred on their client. Section 126 took into account the different categories of professionals who practice law and appear in Courts when the Indian Evidence Act was enacted in the year 1872. With the coming into force of the Advocates Act, 1961, specifically enacted to amend and consolidate the law relating to legal practitioners, an Advocate was defined under Section 2(a) as a person who is entered in any roll as provided under the provisions of that Act”, it explained.

The Court remarked that whether, in his employment, an In-house Counsel advises his employer on legal affairs would not bring an In house counsel, a fully salaried employee, within the definition of an Advocate which would also not enable him to claim the privilege with respect to communications with his employer as available under Section 126, but could definitely take up other pleas, which it is not required to look into at this stage.

Conclusion

Coming back to the facts of the case, the Court said, “We find the summons issued in the instant case to be illegal and against the provisions of Section 132 insofar as the Advocate has been summoned to know the true details of the facts and circumstances of the case in which he appears for the accused. We are surprised that the High Court, being a Constitutional Court, exercising the jurisdiction under Section 528 of the BNSS refused to interfere with the same.”

The Court, therefore, concluded that any summons issued by an officer in-charge of a Police Station to a lawyer to produce documents, relatable to his client, can only be for production before Court of the said document which shall be perused, for the purpose of deciding on the objections raised against the direction to produce and determine its admissibility, after hearing the witness who produces it and any objection raised by the client under Section 132 of the BSA, which decision shall be by the Court and not by the officer.

Accordingly, the Apex Court disposed of the Suo Motu case, set aside the impugned summons, and cautioned the IOs.

Cause Title- IN RE: Summoning Advocates who give legal opinion or represent parties during investigation of cases and related issues. (Neutral Citation: 2025 INSC 1275)

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