ED Summons Lawyers for Giving Legal Advice to Accused
Bar Calls Move Overreach, Warns of Chilling Effect on Legal Profession
June 21, 2025
The Enforcement Directorate (ED) recently summoned two senior advocates over legal opinions given to a client under investigation, then withdrew the summons following widespread criticism from legal bodies across India for violating attorney-client privilege and undermining the independence of the legal profession. The move also suggests that once the ED opens an investigation, legal advice given to the accused itself becomes grounds for suspicion.
The incident revolves around the ED’s investigation into Care Health Insurance’s stock option grants to Rashmi Saluja, former chairperson of Religare Enterprises. In the course of its probe under money-laundering charges, the agency issued summons to lawyers Arvind Datar and Pratap Venugopal, who had offered legal advice to the company on the matter, as reported by The Telegraph.
While the ED later withdrew the summons, the fact that they were issued at all set off alarm bells among lawyers, bar associations and senior members of the judiciary. The Bar Association of India, the Supreme Court Bar Association and the Supreme Court Advocates-on-Record Association have all issued public statements criticising the ED’s move and urging the Supreme Court to step in.
The incident should be seen in the context of executive overreach within the country’s institutions. It refers to the use of state power beyond its proper limits, where the executive/government interferes with independent institutions or bypasses legal safeguards. Such overreach weakens accountability and undermines the balance that a democracy relies on.
The ED, a central agency under the Ministry of Finance, has in recent years assumed growing powers in cases related to economic offences, often drawing criticism for its perceived political use. The summoning of lawyers for advice given in a professional capacity, without prima facie evidence of conspiracy or fraud, marks a troubling escalation. It suggests an investigative culture that views legal counsel as a potential accomplice rather than a necessary actor in ensuring lawful compliance.
As regards the principle of attorney-client privilege, it is codified under Section 132 of the Bharatiya Sakshya Adhiniyam, 2023, which prohibits advocates from disclosing any communication made to them by or on behalf of their client, the contents or condition of any document they became aware of during their professional service, or any advice given to the client. The ED’s action appears to disregard both the letter and spirit of this principle. By summoning lawyers over advice rendered, without first establishing wrongdoing or exhausting avenues of inquiry with the client, the agency effectively penalises the act of legal counselling itself.
This has severe implications for the legal system. The act of seeking legal advice, particularly in complex regulatory environments, should be encouraged as a means of ensuring compliance and protecting rights. If lawyers fear that rendering opinions could expose them to legal action or reputational harm, they may hesitate to advise clients in sensitive or contentious matters. This discourages legal counsel from playing its essential role in helping individuals understand and respond to state power and regulatory demands.
The ED’s move also signals a deeper change in the balance between state authority and professional autonomy. Liberal democracies like India function on the assumption that certain institutions, such as the judiciary, the press and the Bar, must operate independently from the executive to ensure accountability and prevent concentration of power.
Further, there is an important distinction between investigating alleged crimes and targeting those who provide legal advice within the bounds of the law. While the former falls within the legitimate domain of state agencies, the latter does not. A historical instance of this can be seen during the Emergency era of 1975–77, when lawyers defending political prisoners were often harassed or placed under surveillance.
In its defence, the ED reportedly stated that such summonses would now require prior approval and must conform to Section 132. However, it does little to restore confidence. It seems less like a serious correction and more like a step back to avoid trouble.
A working democracy cannot treat lawyers as disposable in its fight against crime. Legal advice is not proof of intent, and lawyers are not part of their clients’ alleged wrongdoing. They are meant to give fair and impartial guidance, regardless of who the client is or what the state suspects.
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