The Enforcement Directorate’s recent attempt to summon Senior Advocate Arvind Datar for a legal opinion he gave a client has detonated a legal and constitutional landmine — and the tremors are being felt far beyond the corridors of power in Delhi.
Though the ED quickly retreated and withdrew the summons, the damage was done. The move has triggered an outpouring of fury from bar associations, senior advocates, and constitutional experts, all warning that the sanctity of attorney-client privilege — once thought untouchable — is now under siege.
At the epicenter of this blow-up lies a basic question: can a lawyer be summoned by the State for doing what the Constitution and the Evidence Act explicitly allow — giving legal advice?
The Supreme Court Bar Association’s president, Vikas Singh, minced no words. “This is a direct strike at judicial independence,” he thundered, warning that if agencies like the ED start targeting lawyers, judges could be next. “We are on the brink of institutional collapse if this becomes a norm.”
Equally unsparing was Senior Advocate Sanjoy Ghose, who called the ED’s act “the most egregious attack on the rule of law.” His statement came with a demand — not a request — that the officer responsible be suspended and prosecuted departmentally. “This isn’t law enforcement. This is intimidation.”
Across the map, bar associations rose in solidarity. The Supreme Court Advocates-on-Record Association called it “unwarranted investigative overreach.” The Delhi High Court Bar Association passed a resolution warning that such conduct threatens the right to a fair trial and the constitutional right to be defended by a lawyer of one’s choice. In Gujarat, an emergency meeting of the High Court Bar Association led to a unanimous condemnation and a demand for immediate legal safeguards.
Even Parliament took notice. Senior Advocate and MP P Wilson described the summons as “a hallmark of a dictatorial regime, not a democracy.” He questioned whether, at this pace, doctors treating accused persons or judges acquitting them would be next in the firing line.
The ED’s trigger for the summons? A legal opinion Datar gave on the Employee Stock Option Plan (ESOP) granted to Rashmi Saluja, former chairperson of Religare Enterprises, by Care Health Insurance. Over 22.7 million ESOPs, worth more than ₹250 crore, are under ED scrutiny for alleged regulatory violations. Datar, in his professional capacity, had supported the legality of the ESOPs.
But when confronted, Datar reportedly made it clear to ED officials: a lawyer cannot be summoned over legal advice, and professional privilege is not a courtesy — it’s a statutory and constitutional shield.
At the core of this legal flashpoint lies Section 126 of the Indian Evidence Act, 1872. Crafted during British rule, and still robust after 150 years, it bars legal practitioners from revealing client communications made in the course of professional duties. The statute’s roots dig deep into legal history — and deeper still into the foundational premise of the right to counsel.
Section 127 extends that shield to clerks and interpreters. Section 128 clarifies when privilege is waived. Section 129 ensures even clients can’t be compelled to disclose what they told their lawyers — unless they testify themselves.
The courts have been unwavering. In Bakaullah Mollah v. Debiruddi Mollah, the Calcutta High Court held such communications inadmissible. In CBI v. K. Narayana Rao, the Supreme Court drew a bright red line: bad advice may be bad lawyering, but not a crime — unless the lawyer is part of the conspiracy. Gopi Kishan v. State of Rajasthan reaffirmed that without malice or intent, a lawyer’s incorrect advice isn’t prosecutable.
Constitutionally, Article 20(3) gives every person the right not to incriminate themselves — and that includes the right to keep legal advice confidential. In Selvi v. State of Karnataka, the Supreme Court called this right intrinsic to dignity and fairness.
Taken together, these provisions form a legal fortress. Yet, the ED’s now-rescinded summons cracked open a door that many say should have stayed firmly bolted.
The fear isn’t just about Datar. It’s about what comes next. If this precedent takes root, any lawyer offering a defense or opinion that displeases the State might be the next target.
For now, the legal fraternity is drawing a line in the sand. But whether this moment becomes a footnote or a faultline in the history of Indian jurisprudence may depend on whether the legal community can hold that line — and make the State retreat for good.
