Judicial Shield: Kerala High Court's Landmark Defense of Advocate-Client Privilege Against Investigative Overreach

 Judicial Shield: Kerala High Court's Landmark Defense of Advocate-Client Privilege Against Investigative Overreach

By Abhishek Jat,Advocate

In a precedent-setting ruling that resonates throughout India's legal landscape, the Kerala High Court has delivered a comprehensive judgment safeguarding the constitutional and statutory protections afforded to advocates. The March 27, 2025 decision in W.P.(Crl.) No. 363 OF 2025 addresses a troubling instance where investigative authorities attempted to penetrate the sacred domain of advocate-client communications, raising profound questions about the boundaries of police powers and the independence of the legal profession.

The Unprecedented Summons: Factual Matrix

The controversy originated when the petitioner, a practicing advocate with over two decades of experience, found himself served with a notice under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. The notice demanded his appearance before police authorities investigating Crime No. 157 of 2025 at Njarakkal Police Station—a case in which the petitioner represented the accused.

The underlying case involved allegations against a married couple purportedly of Bangladeshi origin who were accused of fabricating documentation including Aadhaar Cards, Election Identity Cards, and Driving Licenses to establish false Indian citizenship. The charges included offenses under Sections 336(2) and 340(2) of the Bharatiya Nyaya Sanhita (BNS), 2023, along with various provisions of the Foreigners Act.

What makes this case particularly disconcerting is the chronology of events. The petitioner, in his capacity as defense counsel, had already submitted twenty original documents to the Judicial First-Class Magistrate Court during bail proceedings—before receiving any police notice requesting these materials. Despite informing authorities of this fact through a formal reply, the police escalated the matter by issuing a Section 35(3) notice, explicitly threatening arrest for non-compliance.

Juridical Analysis: Decoding the Legal Framework

Dr. Justice Kauser Edappagath's incisive judgment meticulously dissects multiple intersecting legal principles, creating a robust framework for understanding the limitations on police powers vis-à-vis the legal profession.

The Misapplication of Section 35(3)

The Court engaged in statutory interpretation to clarify the intended scope of Section 35(3) of BNSS. This provision permits police to issue notices directing individuals to appear for questioning when:

1. A reasonable complaint has been made, or
2. Credible information has been received, or
3. A reasonable suspicion exists that the person has committed a cognizable offense

The judgment emphasizes that this section requires "subjective satisfaction" by the police officer that the noticee has committed a cognizable offense. Such notices represent an alternative to arrest—not a general investigative tool to be deployed against witnesses or, most certainly, not against advocates representing the accused.

The Court pointedly observed that criminal law procedures cannot be "instrumentalized as a tool of harassment," referencing the Supreme Court's guidance in Arnesh Kumar v. State of Bihar and Satender Kumar Antil v. Central Bureau of Investigation that these provisions are facets of Article 21 of the Constitution.

Distinguishing Between Investigative Powers

A critical distinction was drawn between:

• Section 35(3) notices (meant for suspects/accused)
• Section 179(1) notices (appropriate for witnesses)

The Court clarified that while police may summon witnesses acquainted with case facts, this authority "cannot be stretched to call for an advocate who is appearing for the accused in the crime to divulge communication between him and the client."

The Fortress of Privileged Communication

Central to the Court's reasoning is Section 132(1) of the Bharatiya Sakshya Adhiniyam (BSA), 2023, which codifies attorney-client privilege. This provision establishes that communications between advocate and client made during professional representation remain protected from compelled disclosure.

The judgment characterizes the police notice as "asking the petitioner to be present before the police to be interrogated regarding the information... which has been communicated between his client and himself in his professional capacity." Such an attempt to penetrate privileged communications renders the notice fundamentally unlawful.

Constitutional Dimensions

The Court elevated the analysis to constitutional heights by identifying that such police action infringes upon:

1. The right to practice a profession under Article 19(1)(g) of the Constitution
2. Professional rights codified in the Advocates Act, 1961

These protections are not mere technical safeguards but represent foundational principles ensuring the independence of the legal profession and the right to adequate legal representation.

Institutional Equilibrium in Criminal Justice

The judgment articulates a sophisticated understanding of the criminal justice system as requiring balanced but distinct roles between police and defense advocates. While acknowledging police investigative powers, the Court establishes clear boundaries where these powers must yield to other constitutional imperatives.

The ruling states that "summoning an advocate representing his client potentially infringes the client's right to represent and violates the constitutional rights of the legal practitioners besides impinging upon the stature of an advocate." This encapsulates the dual harm caused—to both client rights and to the professional dignity of advocates.

Judicial Response and Systemic Reform

Though the police had withdrawn the impugned notice by the time of judgment (possibly recognizing its legal infirmities), the Court used this opportunity to institute broader reform. Directing the Kerala State Police Chief to issue comprehensive instructions to all officers regarding proper application of Section 35(3), the judgment seeks to prevent similar encroachments in future cases.

This systemic intervention reflects judicial recognition that the issue transcends the individual case and requires institutional correction. The Court cited Unnimon K.A. v. State of Kerala to emphasize that powers under Section 35(3) exist "for the sake of preventing abuse of powers and cannot be used to intimidate, threaten and harass a person."

Implications for Legal Practice

This landmark ruling creates a protective jurisprudential shield around several aspects of legal practice:

1. Independence of Advocacy: By preventing police from summoning advocates for questioning about client matters, the judgment preserves fearless advocacy.
2. Sanctity of Client Confidences: The robust protection of privileged communications ensures clients can freely share information with counsel without fear of later disclosure.
3. Jurisdictional Boundaries: The judgment establishes clear demarcation between legitimate police investigation and impermissible intrusion into the attorney-client relationship.
4. Professional Dignity: By protecting advocates from being treated as suspects merely for representing accused persons, the ruling upholds the dignity of the legal profession.
5. Systemic Guardrails: Through directional orders to police leadership, the judgment institutes preventive measures against future overreach.

Conclusive Analysis

The Kerala High Court's ruling represents a sophisticated balancing of competing interests in the criminal justice system. While recognizing legitimate investigative needs, it firmly establishes that these cannot override the structural necessity of independent legal representation and confidential attorney-client communications.

This judgment joins the constellation of decisions that collectively shape the contours of constitutional criminal procedure in India. By enforcing limitations on investigative powers, particularly where they threaten to encroach upon the advocate-client relationship, the Court has strengthened foundational principles that sustain fair trial rights and due process.

The ruling's significance extends beyond the immediate parties—it stands as a jurisprudential bulwark against attempts to conscript advocates into investigations against their clients, preserving both the letter and spirit of laws protecting professional independence and confidentiality in legal practice.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Readers are advised to consult qualified legal professionals for specific legal concerns.