On 20-06-2025, the Enforcement Directorate (ED) issued Technical Circular No. 03 of 2025, a significant procedural directive that prohibits the issuance of summons to advocates without prior approval from the Director of ED. The circular reinforces the protection accorded to legal professionals under Section 132 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA, 2023), effectively operationalizing statutory legal privilege within investigative procedures.
“No summons shall be issued to any Advocate in violation of Section 132 of the Bharatiya Sakshya Adhiniyam, 2023. Further, if any summons needs to be issued under the exceptions carved out in the proviso to Section 132 of the BSA, 2023, the same shall be issued only with the prior approval of the Director, ED.”
The mandate formalizes safeguards for the legal profession and prevents field offices from unilaterally summoning advocates, thereby shielding privileged communications and ensuring compliance with statutory protections.
Section 132 of the Bharatiya Sakshya Adhiniyam (which replaced the Indian Evidence Act, 1872) codifies the principle of advocate—client privilege. It bars compelled disclosure of any communication made in the course of professional employment, with limited exceptions—primarily where the legal service was sought for an illegal purpose or where the advocate knowingly abetted such illegality.
The ED circular now embeds this principle into its internal enforcement protocol, setting a high threshold for exceptional circumstances.
The circular comes in the immediate aftermath of a controversy involving the ED’s issuance of summons to two senior advocates:
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Senior Advocate Pratap Venugopal, who was summoned in connection with his role as Independent Director of Care Health Insurance Ltd. (CHIL) regarding allegedly irregular ESOPs,
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Senior Advocate Arvind Datar, similarly, summoned in connection with legal opinions rendered by them in the course of their professional duties.
Both summonses were widely condemned by the legal fraternity, prompting interventions by the Supreme Court Advocates-on-Record Association (SCAORA), Bar Association of India (BAI), and Supreme Court Bar Association (SCBA). The bar bodies urged Chief Justice of India B.R. Gavai to take suo motu cognizance, warning of serious ramifications for the independence of the legal profession.
Alongside the technical circular, a press release dated 20-06-2025 confirmed that the ED had withdrawn the summons to Senior Advocate Venugopal, noting that any further clarification would be sought via email in his capacity as a director, not as a legal adviser. This distinction underscores the agency’s recognition of professional privilege.
