No summons to Advocates without prior approval of Director: ED issues directive
The Enforcement Directorate has issued a circular stating that no summons shall be issued to any Advocate without the prior approval of the Director, ED.
Referring to Section 132 of Bhartiya Sakshya Adhiniyam, 2023, ED's circular states, "it is amply clear that legal practitioner cannot be compelled to disclose any communication made to him in the course and for the purpose of his professional service as such legal practitioner, by or on behalf of his client unless with his client's express consent. However, proviso to Section 132 of the BSA, 2023 has carved out certain exceptions.".
In view of the said provision, ED has directed that no summons shall be issued to any advocate in violation of Section 132 of the BSA, 2023. Further, if any summon needs to be issued under the exceptions carved out in proviso to Section 132 of the BSA, 2023, the same shall be issued with the prior approval of the Director, ED.
This circular has been issued by the Directorate of Enforcement after summons were issued to two Senior Advocates recently. "It has come to the notice that field formations are issuing summons to legal practitioners/Advocates/Lawyers during the course of money laundering investigation to disclose/produce communications and documents in professional capacity pertaining to their clients", the technical circular issued on 20th June stated.
In relation to the Directorate of Enforcement, Mumbai Zonal office conducting a money laundering investigation in which it has been alleged that shares of M/s Care Health Insurance Ltd (CHIL) were issued at a much lower price in the form of ESOPs on 1st May, 2022, summons were issued to Senior Advocate Pratap Venugopal.
As a strong reaction to the ED's summons issued to Venugopal over a legal opinion rendered in the ESOP matter the Supreme Court Advocates-on-Record Association (SCAORA) wrote to Chief Justice of India (CJI) Justice BR Gavai, urging urgent suo motu cognisance of the matter.
The ED has now clarified that said summons issued to Venugopal have been withdrawn and same has been communicated to him. In the said communication, it has also been stated that if any documents will be required from venugopal in his capacity as an Independent Director of CHIL, the same will be requested from him to be submitted by email.
SCAORA recently also strongly condemned the ED's move to summon Senior Advocate Arvind Datar in connection with a legal opinion rendered by him in his professional capacity, alleging it constitutes a “disturbing trend of investigative overreach” and an attack on the independence of the legal profession.
The bar body described the ED’s action as “unwarranted” and a “misuse of authority”, reflecting a growing tendency to undermine advocates who perform their duties fearlessly and impartially.