A significant judgment by the
Supreme Court of India, delivered on ๐๐๐ญ๐จ๐๐๐ซ ๐๐, ๐๐๐๐, has
clarified the scope of ๐๐ฅ๐ข๐๐ง๐ญ-๐๐ญ๐ญ๐จ๐ซ๐ง๐๐ฒ ๐ฉ๐ซ๐ข๐ฏ๐ข๐ฅ๐๐ ๐ under
the newly enacted ๐๐ก๐๐ซ๐๐ญ๐ข๐ฒ๐ ๐๐๐ค๐ฌ๐ก๐ฒ๐ ๐๐๐ก๐ข๐ง๐ข๐ฒ๐๐ฆ (๐๐๐), ๐๐๐๐. 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 ๐ข๐ง-๐ก๐จ๐ฎ๐ฌ๐ ๐๐จ๐ฎ๐ง๐ฌ๐๐ฅ ๐๐ซ๐ ๐ง๐จ๐ญ ๐๐ง๐ญ๐ข๐ญ๐ฅ๐๐ ๐ญ๐จ ๐ญ๐ก๐ ๐ฉ๐ซ๐จ๐๐๐ฌ๐ฌ๐ข๐จ๐ง๐๐ฅ ๐ฉ๐ซ๐ข๐ฏ๐ข๐ฅ๐๐ ๐ ๐ฎ๐ง๐๐๐ซ ๐๐๐๐ญ๐ข๐จ๐ง ๐๐๐ ๐จ๐ ๐ญ๐ก๐ ๐๐๐.
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.
๐๐ก๐ ๐๐ฎ๐ฉ๐ซ๐๐ฆ๐ ๐๐จ๐ฎ๐ซ๐ญ’๐ฌ ๐๐๐ฒ ๐๐ฅ๐๐ซ๐ข๐๐ข๐๐๐ญ๐ข๐จ๐ง
The three-judge Bench,
comprising ๐๐ก๐ข๐๐ ๐๐ฎ๐ฌ๐ญ๐ข๐๐ ๐จ๐ ๐๐ง๐๐ข๐ ๐. ๐. ๐๐๐ฏ๐๐ข, ๐๐ฎ๐ฌ๐ญ๐ข๐๐ ๐. ๐๐ข๐ง๐จ๐ ๐๐ก๐๐ง๐๐ซ๐๐ง (๐ฐ๐ก๐จ ๐๐ฎ๐ญ๐ก๐จ๐ซ๐๐ ๐ญ๐ก๐ ๐ฃ๐ฎ๐๐ ๐ฆ๐๐ง๐ญ), ๐๐ง๐ ๐๐ฎ๐ฌ๐ญ๐ข๐๐ ๐. ๐. ๐๐ง๐ฃ๐๐ซ๐ข๐,
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:
- ๐๐ฑ๐๐ฅ๐ฎ๐ฌ๐ข๐จ๐ง ๐๐ซ๐จ๐ฆ ๐๐๐๐ญ๐ข๐จ๐ง ๐๐๐:
The Court explicitly stated that ๐ข๐ง-๐ก๐จ๐ฎ๐ฌ๐ ๐๐จ๐ฎ๐ง๐ฌ๐๐ฅ—as
full-time salaried employees—๐๐จ ๐ง๐จ๐ญ ๐ช๐ฎ๐๐ฅ๐ข๐๐ฒ ๐๐ฌ
‘๐๐๐ฏ๐จ๐๐๐ญ๐๐ฌ’
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.
- ๐๐๐ญ๐ข๐จ๐ง๐๐ฅ๐:
The distinction appears to stem from the fact that
in-house counsel are not seen as advocates "๐ฉ๐ซ๐๐๐ญ๐ข๐ฌ๐ข๐ง๐ ๐ข๐ง ๐๐จ๐ฎ๐ซ๐ญ๐ฌ"
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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