A significant judgment by the
Supreme Court of India, delivered on 𝐎𝐜𝐭𝐨𝐛𝐞𝐫 𝟑𝟏, 𝟐𝟎𝟐𝟓, has
clarified the scope of 𝐜𝐥𝐢𝐞𝐧𝐭-𝐚𝐭𝐭𝐨𝐫𝐧𝐞𝐲 𝐩𝐫𝐢𝐯𝐢𝐥𝐞𝐠𝐞 under
the newly enacted 𝐁𝐡𝐚𝐫𝐚𝐭𝐢𝐲𝐚 𝐒𝐚𝐤𝐬𝐡𝐲𝐚 𝐀𝐝𝐡𝐢𝐧𝐢𝐲𝐚𝐦 (𝐁𝐒𝐀), 𝟐𝟎𝟐𝟑. The
apex court, in the suo motu case titled In Re: Summoning Advocates Who Give
Legal Opinion or Represent Parties During Investigation of Cases and Related
Issues, held that 𝐢𝐧-𝐡𝐨𝐮𝐬𝐞 𝐜𝐨𝐮𝐧𝐬𝐞𝐥 𝐚𝐫𝐞 𝐧𝐨𝐭 𝐞𝐧𝐭𝐢𝐭𝐥𝐞𝐝 𝐭𝐨 𝐭𝐡𝐞 𝐩𝐫𝐨𝐟𝐞𝐬𝐬𝐢𝐨𝐧𝐚𝐥 𝐩𝐫𝐢𝐯𝐢𝐥𝐞𝐠𝐞 𝐮𝐧𝐝𝐞𝐫 𝐒𝐞𝐜𝐭𝐢𝐨𝐧 𝟏𝟑𝟐 𝐨𝐟 𝐭𝐡𝐞 𝐁𝐒𝐀.
This ruling has profound
implications for the corporate legal landscape, creating a clear distinction
between the protections afforded to independent practicing advocates and those
functioning as salaried employees of a corporation.
𝐓𝐡𝐞 𝐒𝐮𝐩𝐫𝐞𝐦𝐞 𝐂𝐨𝐮𝐫𝐭’𝐬 𝐊𝐞𝐲 𝐂𝐥𝐚𝐫𝐢𝐟𝐢𝐜𝐚𝐭𝐢𝐨𝐧
The three-judge Bench,
comprising 𝐂𝐡𝐢𝐞𝐟 𝐉𝐮𝐬𝐭𝐢𝐜𝐞 𝐨𝐟 𝐈𝐧𝐝𝐢𝐚 𝐁. 𝐑. 𝐆𝐚𝐯𝐚𝐢, 𝐉𝐮𝐬𝐭𝐢𝐜𝐞 𝐊. 𝐕𝐢𝐧𝐨𝐝 𝐂𝐡𝐚𝐧𝐝𝐫𝐚𝐧 (𝐰𝐡𝐨 𝐚𝐮𝐭𝐡𝐨𝐫𝐞𝐝 𝐭𝐡𝐞 𝐣𝐮𝐝𝐠𝐦𝐞𝐧𝐭), 𝐚𝐧𝐝 𝐉𝐮𝐬𝐭𝐢𝐜𝐞 𝐍. 𝐕. 𝐀𝐧𝐣𝐚𝐫𝐢𝐚,
issued a set of crucial directions primarily to curb the arbitrary summoning of
practicing advocates by investigative agencies. While doing so, the Court also
addressed the status of in-house counsel:
- 𝐄𝐱𝐜𝐥𝐮𝐬𝐢𝐨𝐧 𝐟𝐫𝐨𝐦 𝐒𝐞𝐜𝐭𝐢𝐨𝐧 𝟏𝟑𝟐:
The Court explicitly stated that 𝐢𝐧-𝐡𝐨𝐮𝐬𝐞 𝐜𝐨𝐮𝐧𝐬𝐞𝐥—as
full-time salaried employees—𝐝𝐨 𝐧𝐨𝐭 𝐪𝐮𝐚𝐥𝐢𝐟𝐲 𝐚𝐬
‘𝐚𝐝𝐯𝐨𝐜𝐚𝐭𝐞𝐬’
for the purpose of the absolute professional privilege
granted under Section 132 of the BSA, 2023. Section 132 protects a lawyer
from being compelled to disclose communications made to them by or on
behalf of their client in the course and for the purpose of their
professional engagement.
- 𝐑𝐚𝐭𝐢𝐨𝐧𝐚𝐥𝐞:
The distinction appears to stem from the fact that
in-house counsel are not seen as advocates "𝐩𝐫𝐚𝐜𝐭𝐢𝐬𝐢𝐧𝐠 𝐢𝐧 𝐜𝐨𝐮𝐫𝐭𝐬"
in the traditional sense, which is a common
prerequisite for statutory protections afforded to the Bar. Their primary
role is often administrative and advisory within the employer-employee
relationship, rather than being an independent practitioner.
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