ED crossing all limits: Supreme Court on agency summoning lawyers for giving legal advice
New Delhi (PTI): The Enforcement Directorate is "crossing all limits", the Supreme Court said on Monday as it expressed serious concern over the agency summoning advocates for offering legal advice or representing clients during investigations. It also called for guidelines on the matter.
The remarks from an apex court bench of Chief Justice B R Gavai and Justice K Vinod Chandran came during a suo motu hearing initiated by the court to address the implications of such actions on the independence of the legal profession.
This comes in the wake of the ED summoning senior lawyers Arvind Datar and Pratap Venugopal.
“The communication between a lawyer and the clients is privileged communication and how can the notices be issued against them… they are crossing all limits,” the CJI said.
“Guidelines should be framed,” he said while responding to submissions that recent ED notices to legal professionals like senior advocate Datar could have a chilling effect on the practice of law.
Attorney General R Vennkataramani and Solicitor General Tushar Mehta said the issue had been taken up at the highest level and the probe agency asked to not issue notices to the lawyers for rendering legal advice.
“Lawyers cannot be summoned for rendering legal opinions,” the solicitor general said.
He, however, said there have been attempts to malign institutions by creating false narratives.
Advocates stressed that summoning lawyers, especially for giving legal opinions, was setting a dangerous precedent.
“If this continues, it will deter lawyers from offering honest and independent advice,” a lawyer said, adding that even district court lawyers were facing undue harassment.
The attorney general acknowledged the concerns and said, “What is happening is certainly wrong.”
The CJI responded that the court had also been surprised by reports it came across. However, the solicitor general cautioned against forming opinions based on media narratives.
“There is a concerted effort to target institutions. Please don’t go by interviews and news,” the law officer said.
“We don’t watch the news, haven’t seen YouTube interviews. Only last week I managed to watch a few movies,” said the CJI, who was indisposed last week.
When the solicitor general referred to politicians, accused in scams, attempting to shape public opinion, the CJI said, “We said it… don’t politicise this.”
“The moment I heard about Mr Datar, I immediately brought it to the notice of the highest executive,” Mehta said.
The bench directed all parties, including the Supreme Court Bar Association(SCBA), represented by its president and senior advocate Vikas Singh, to file comprehensive notes on the issue and allowed intervention applications.
The matter is now listed for further hearing on July 29.
“Ultimately, we are all lawyers,” the CJI remarked, adding that arguments in court should not be viewed adversarially.
On June 20, the ED said it had directed its investigating officers not to issue summons to any advocate in money laundering investigations being carried out against their clients. An exception to this rule can only be made after "approval" by the agency's director, it added.
The ED, tasked with combating money laundering crimes, issued a circular for guidance of its field formations, stating that "no summons" should be issued to any advocate in violation of Section 132 of the Bhartiya Sakshya Adhiniyam (BSA), 2023.
"Further, if any summons needs to be issued under the exceptions carved out in proviso to Section 132 of the BSA, 2023, the same shall be issued only with the prior approval of the director, ED," the agency said.
The summons issued to these advocates was condemned by the SCBA and the Supreme Court Advocates-on-Record Association, which called the move a "disturbing trend" that struck at the very foundations of the legal profession.
The bar bodies had urged the CJI to take suo motu cognisance of the matter.
On June 25, an apex court bench of Justices K V Viswanathan and N Kotiswar Singh said allowing police or probe agencies to directly summon lawyers for advising clients would seriously undermine the autonomy of the legal profession and was a "direct threat" to the independence of justice administration.
It observed that the legal profession was an integral component of the process of administration of justice.
The order came when the top court was hearing a plea of a Gujarat-based advocate, challenging an order of the high court passed on June 12.
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Supreme Court declines fresh curbs on hate speech, says existing laws are enough
New Delhi: The Supreme Court of India on Wednesday refused to issue additional directions to curb hate speech across the country, holding that the existing legal framework is sufficient and that the real issue lies in implementation rather than absence of law.
A Bench comprising Justice Vikram Nath and Justice Sandeep Mehta said creation of criminal offences falls within the legislative domain and courts cannot legislate or compel Parliament and state legislatures to enact laws.
The Bench observed that constitutional courts can interpret the law and issue directions for enforcement of fundamental rights, but cannot step into the law-making role.
“At the highest, the court may draw attention to the need for reform. The decision whether and in what manner to legislate remains within the exclusive domain of Parliament and the state legislatures,” the court said.
The court held that the field of hate speech is not legally vacant and said concerns arise mainly from poor enforcement of existing provisions.
It also noted that the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, provides a comprehensive mechanism to set criminal law in motion, meaning there is no legislative vacuum.
Referring to remedies already available under the earlier Code of Criminal Procedure (CrPC) and the BNSS, the court said police are duty-bound to register an FIR when a cognisable offence is disclosed, as laid down in the Lalita Kumari judgment.
It said if police fail to register an FIR, an aggrieved person can approach the Superintendent of Police under Section 154(3) of CrPC or Section 173(4) of BNSS, and thereafter move the magistrate under Section 156(3) CrPC or Section 175 BNSS, or file a private complaint under Section 200 CrPC or Section 223 BNSS.
The Bench further held that an order directing investigation under Section 156(3) CrPC does not amount to taking cognisance under Section 190 CrPC or the corresponding Section 210 of BNSS.
Even while declining fresh directions, the court acknowledged the seriousness of the issue.
It observed that hate speech and rumour-mongering directly affect fraternity, dignity and constitutional order.
The Bench urged legislative authorities to consider whether further policy or legal measures are needed in view of changing social challenges, including suggestions made in the 267th Report of the Law Commission in 2017.
The judgment came in a batch of petitions arising from events dating back to 2020, when multiple pleas were filed over alleged communal narratives spread through television channels and social media.
Among the earliest cases were challenges relating to content described as the “Corona Jihad” campaign and a programme aired by Sudarshan TV titled “UPSC Jihad”. During those proceedings, the court had restrained further telecast of the programme.
Later, more petitions were filed over speeches made at religious gatherings described as “Dharam Sansad” events.
These included pleas moved by journalist Qurban Ali and Major General S.G. Vombatkere seeking action against alleged hate speeches made at such forums.
During the pendency of the matter, the Supreme Court in 2023 had issued major directions asking all states and Union Territories to act proactively in cases involving communal hate speeches or remarks hurting religious sentiments.
It had directed police to register FIRs suo motu, without waiting for formal complaints.
Later, contempt petitions were also filed alleging poor implementation of those earlier directions.
