Why the Legal Community Is Protesting the ED Summons to Senior Advocate Arvind Datar?

A recent move by the Enforcement Directorate (ED) to summon Senior Advocate Arvind Datar has sparked outrage among lawyers across India. The ED issued the summons in connection with a legal opinion Datar gave in a corporate matter. Although the summons was later withdrawn, the incident has triggered a major debate about attorney-client privilege and the independence of the legal profession in India.

What Happened?

The ED summoned Datar over a legal opinion he gave related to the Employee Stock Option Plan (ESOP) granted to Rashmi Saluja, former chairperson of Religare Enterprises, by Care Health Insurance. The agency is investigating whether the ESOPs—valued at more than ₹250 crore—violated any regulatory rules or were part of a financial scandal.

The legal community was stunned because Datar, in this case, was simply doing his professional job—giving a legal opinion to a client.

Strong Reactions from the Legal Fraternity

Many senior lawyers and bar associations came forward to protest the ED’s move. Here's what some of them had to say:

• Vikas Singh, President of the Supreme Court Bar Association, said:“This action strikes at the root of judicial independence. If lawyers are made accused, what’s next? Judges?”

• Sanjoy Ghose, Senior Advocate, called it a direct attack on the rule of law:“If a lawyer is harassed for defending someone, it sends a chilling message. The ED must apologise, and the officer should be suspended.”

• Supreme Court Advocates-on-Record Association (SCAORA) described the move as “investigative overreach” and said it hurts the rule of law.

• Delhi High Court Bar Association passed a resolution condemning the ED’s actions, saying it violates the constitutional right to legal representation.

• Gujarat High Court Advocates Association held an emergency meeting and demanded immediate government action to protect attorney-client privilege under both the Indian Evidence Act, 1872, and the newer Bharatiya Sakshya Adhiniyam, 2023.

• P Wilson, Senior Advocate and DMK MP, warned that this could set a dangerous precedent:“What next? Summons to doctors for treating the accused? This is the mark of a dictatorship, not a democracy.”

  
  

Understanding Attorney-Client Privilege

The uproar is rooted in Section 126 of the Indian Evidence Act, 1872, which clearly states:

"No barrister, attorney, pleader or vakil shall be allowed to disclose any communication made by a client for the purpose of legal advice, unless the client gives consent."

This law was introduced during British rule and is still considered a cornerstone of India's legal system. It ensures that clients can speak freely with their lawyers without fear of exposure.

Other related protections include:

• Section 127: Extends privilege to clerks, interpreters, and assistants of lawyers.

• Section 128: Explains when privilege is waived.

• Section 129: Says individuals can't be forced to reveal legal discussions unless they become a witness themselves.

  
  

Key Court Decisions That Support Datar’s Case

• Bakaullah Mollah v. Debiruddi Mollah (Calcutta HC): Confidential lawyer-client communications are protected.

• Anil Anturkar v. Chandrakumar Baldota (Bombay HC): Even former lawyers cannot be called to confirm private legal discussions.

• CBI v. K. Narayana Rao (Supreme Court): Lawyers can only be prosecuted if they knowingly take part in fraud.

• Gopi Kishan v. State of Rajasthan: Wrong advice may be unprofessional but isn’t a crime without evidence of bad intent.

  
  

Constitutional Protection:

Article 20(3) of the Indian Constitution says:

“No person accused of an offence shall be compelled to be a witness against himself.”

This works alongside Section 126 of the Evidence Act to protect both the client and the lawyer from being forced to reveal confidential legal discussions.

In the famous Selvi v. State of Karnataka case, the Supreme Court explained that this right is essential for a fair trial and human dignity.

What Does This Mean for India’s Legal System?

This incident has raised a serious concern: Can lawyers be punished for simply doing their job?

If lawyers begin to fear prosecution for representing clients, especially those being investigated by powerful agencies like the ED, it could weaken the very foundation of justice, fair trial, and the rule of law.

The legal community is calling for stronger rules and protections for lawyers—so that legal advice remains confidential and the system remains balanced and fair for all.

Conclusion

The ED’s now-withdrawn summons to Arvind Datar has sparked more than just controversy—it has united lawyers across the country in defense of the legal profession’s independence. This episode reminds us why attorney-client privilege is not just a technical rule, but a fundamental part of any free and fair justice system.