Supreme Court Verdict on Advocate - Client Privilege Under BNSS and BSA
Background
The Supreme Court reaffirmed the indispensable role of advocates in a constitutional democracy.
Issue arose after an advocate in Ahmedabad received a notice under Section 179 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, asking him to disclose client-related information.
The Court held that lawyers cannot be summoned merely to reveal what a client has communicated, except when legal advice is used to commit or conceal a crime.
Meaning of Privileged Communications
Privileged communications refer to confidential exchanges within protected relationships that cannot be disclosed in court.
Key Provisions Under the Bharatiya Sakshya Adhiniyam (BSA), 2023)
Sections 128 to 134 lay out the framework:
Marital Communications (Section 128)
Spouses cannot be compelled or permitted to disclose communications made during marriage.
Protection continues even after divorce.
Exceptions: crimes by one spouse against the other or suits between spouses.
Official Communications (Section 129)
Unpublished official records relating to affairs of the State cannot be disclosed without departmental permission.
Advocate–Client Privilege (Section 132)
Advocates cannot disclose professional communications made during or after employment.
Exceptions:
client consents
communication made for an illegal purpose
advocate observes a crime being committed during engagement
Underlying Rationale
Ensures trust, candour, and honest disclosure between clients and lawyers.
Protects fairness, due process, and the accused’s rights.
What the Supreme Court Held
Legal Findings
The State cannot intrude into the lawyer–client relationship except within the narrow exceptions in Section 132 of the BSA.
Police and investigating agencies cannot summon an advocate merely for appearing in or advising on a case.
Any summons must show prima facie material indicating that the case falls within the statutory exceptions.
Constitutional Foundation
Court linked Section 132 to Article 20(3) (protection against self-incrimination).
If a citizen cannot be forced to confess directly, the State cannot obtain the same information indirectly by compelling a lawyer to reveal privileged communication.
This constitutionalises advocate–client privilege, elevating it beyond ordinary statutory protection.
Implications for Justice
Protects the structural integrity of the fair trial guarantee under Article 21.
Upholds equality before law under Article 14 by preventing collapse of the defence–prosecution divide.
The Advocate as a Constitutional Actor
The Court emphasised that advocates are not mere private professionals but constitutional actors.
Their silence protects the rights of:
vulnerable victims
undertrials
citizens facing coercive investigative processes
victims of custodial violence or exploitation
Summoning lawyers as witnesses forces them into the role of unwanted agents of the prosecution and undermines the adversarial system.
Significance of the Verdict
Strengthens the Right to Effective Legal Representation
Reinforces the principles in M.H. Hoskot v. State of Maharashtra (1978) and Hussainara Khatoon v. State of Bihar (1980).
Ensures meaningful access to counsel under Article 21.
Checks Investigative Overreach
Prevents misuse of Section 179 of BNSS to intimidate lawyers.
Restores balance between investigative powers and constitutional rights.
Protects the Rights of Undertrials
With nearly 3.9 lakh undertrials, confidentiality is essential for effective defence.
Strengthens the Rule of Law
Prevents the conversion of defence lawyers into prosecution witnesses.
Preserves the adversarial nature of the justice system.
Prelims Practice MCQs
Q. Consider the following statements regarding advocate–client privilege under the Bharatiya Sakshya Adhiniyam (BSA), 2023:
Advocate–client privilege continues even after the professional engagement has ended.
An advocate may disclose professional communication if it was made for an illegal purpose.
Privilege belongs to the advocate, and the client cannot waive it.
Which of the above statements is/are correct?
A. 1 and 2 only
B. 3 only
C. 1 and 3 only
D. 1, 2 and 3
Answer: A
Explanation:
Statement 1: Correct. Section 132 states that the prohibition extends even after employment has ceased.
Statement 2: Correct. Illegal purpose is one of the three statutory exceptions.
Statement 3: Incorrect. The privilege belongs to the client, not the advocate; a client may waive it.
Q. With reference to the Supreme Court’s recent ruling on privileged communications, consider the following statements:
The Supreme Court held that the police cannot summon an advocate merely because he appeared as defence counsel in a criminal case.
The Court linked advocate–client privilege to Article 20(3), thereby giving it constitutional protection.
Section 179 of the BNSS empowers police to summon anybody, including advocates, without exceptions.
Which of the above statements is/are correct?
A. 1 and 2 only
B. 2 and 3 only
C. 1 and 3 only
D. 1, 2 and 3
Answer: A
Explanation:
Statement 1: Correct. Court said lawyers cannot be summoned merely for appearing or advising.
Statement 2: Correct. Court linked Section 132 of BSA with Article 20(3) (self-incrimination).
Statement 3: Incorrect. Section 179 does not override statutory privileges like Section 132; advocates cannot be forced to disclose privileged communications.
Q. Consider the following statements:
Advocate–client privilege has statutory protection under the BSA but no constitutional protection.
The Supreme Court held that compelling an advocate to reveal client communication could indirectly violate Article 20(3).
Section 179 of the BNSS must be read subject to the exceptions created under Section 132 of the BSA.
Which of the above statements is/are correct?
A. 2 and 3 only
B. 1 only
C. 1 and 3 only
D. 1, 2 and 3
Answer: A
Explanation:
Statement 1: Incorrect. SC constitutionalised privilege by linking it with Article 20(3).
Statement 2: Correct. Indirect compulsion is equivalent to compelling self-incrimination.
Statement 3: Correct. Police summons cannot override BSA’s statutory privileges.