The Supreme Court of India’s judgment in In Re: Summoning Advocates who give legal opinion or represent parties during investigation of cases dated 31 October 2025 has delivered a historic clarification on advocate-client privilege. The verdict is a landmark win for the independent bar, setting rigorous safeguards against investigative intrusion.
However, for corporate India, the judgment is a harsh wake-up call, explicitly denying the same core privilege to full-time salaried in-house counsel. This creates an immediate need for sophisticated restructuring of legal risk management, particularly in high-stakes corporate and M&A environments.
The Supreme Court’s decision to take suo moto cognisance—intervening on its own motion—underscored the constitutional gravity of the issue, elevating the freedom of the legal profession to a matter of ’utmost public importance’. For the practicing bar, whether focused on litigation or transactional law, the judgment clarifies the extent of their statutory armour. It has affirmed that the protection under Section 132 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) is absolute, extending to legal advice provided not just in litigation, but also ‘at a solitary instance, sporadically, on a periodic basis or even under a regular retainership’.
The Court has established stringent, non-negotiable safeguards against arbitrary summonses by investigating agencies; mandating:
Any summons must be issued only with the prior approval of an officer not below the rank of a Superintendent of Police (SP);
The SP’s satisfaction regarding the necessity of the summons must be recorded in writing;
The summons must explicitly specify the facts showing the agency relies on one of the two limited exceptions under Section 132 (furtherance of an illegal purpose or observation of a subsequent crime).
However, the single most disruptive element of the ruling is the explicit exclusion of full-time salaried in-house counsel from the robust protection afforded by Section 132 of the BSA. The rationale rests squarely on the concept of professional independence. The Court adopted the reasoning from the European Court of Justice, holding that due to the in-house counsel’s ’economic dependence and of the close ties with his employer,’ they cannot enjoy the same professional autonomy as external counsel. An in-house lawyer is inevitably influenced by the ‘commercial and business strategies pursued by his employer’ and is ’beholden to his employer’. This lack of independence removes the foundation for statutory privilege.
This ruling creates significant vulnerabilities across core corporate functions, necessitating an immediate shift in strategy:
In confidential transaction planning: Internal legal opinions on structuring, regulatory risks, and confidential due diligence findings in M&A transactions are now fully exposed to regulatory or discovery demands. Any sensitive advice drafted internally lacks the shield of Section 132, complicating confidential transaction planning.
Internal investigations (employee / whistleblower): Internal reports, interview summaries and advice prepared by in-house teams regarding employee misconduct or whistleblower allegations are highly vulnerable to discovery, as they lack inherent privilege. This risk necessitates involving external counsel licensed to practice in India from the outset, ensuring the investigation is conducted under the umbrella of external legal advice.
The work product gap: Indian law primarily recognises communication privilege (Section 132 of the BSA). Unlike jurisdictions like the United States of America, which protect materials prepared in anticipation of litigation under a distinct "work product doctrine", Indian law offers no parallel statutory protection for an advocate’s mental impressions, case strategies, or internal notes that are not direct communications to the client. The ruling reinforces that the mere custody of documents by an advocate does not confer privilege over the records themselves.
The judgment is clear: While lawyer-client communication remains a sanctuary, that sanctuary only covers independent practicing advocates. Corporate legal departments must (if not before this, then at least on a going forward basis) strategically engage external counsel to lead or sponsor all high-risk legal activities, from structuring M&A deals to directing internal compliance investigations. By embedding external counsel at the heart of sensitive matters, corporations can effectively harness the confirmed statutory privilege under Section 132 of the BSA to protect their most confidential affairs.
