The summoning of advocates in criminal investigations has, in recent years, moved from the margins of procedural law to its very centre. What was once treated as an incidental investigative step has now attracted sustained constitutional scrutiny, culminating in a series of judicial interventions in 2025[1] that have decisively re-calibrated the threshold for invoking criminal process against legal professionals.
This shift is not rooted in any claim of professional immunity. Rather, it reflects a growing judicial recognition that the manner in which criminal law engages with advocates has systemic consequences for the administration of justice itself. The recent cases mark an inflection point-one that forces a reconsideration of how investigative power, professional responsibility, and attorney-client privilege are to be balanced in an era of expanding criminalisation.
Summoning Is Not Neutral: The Supreme Court’s 2025 Clarification
In October 2025, the Supreme Court, acting suo motu[2] in Re: Summoning of Advocates Who Represent Accused Persons, delivered what is now widely regarded as a watershed ruling. The Court categorically held that investigating agencies cannot summon advocates merely because they have represented, advised, or drafted documents for a client who is under investigation.
The judgment is significant not merely for its outcome, but for its reasoning. The Court framed summoning as a coercive jurisdictional act, not an innocuous request for assistance. It recognised that even a “limited” summons carries reputational harm, professional disruption, and a chilling effect on legal representation-consequences that cannot be dismissed as collateral.
Crucially, the Court grounded its analysis in the statutory reinforcement of attorney-client privilege under the Bharatiya Sakshya Adhiniyam, 2023, holding that privilege is not displaced merely because an investigation is underway. Communications between advocate and client remain protected unless the prosecution demonstrates prima facie material[3] that such communications were made in furtherance of a crime.
The Court was careful to specify that this protection remains inviolable except in three narrow circumstances: where there is an express waiver by the client, where the communication was made in furtherance of an illegal purpose, or where the lawyer observes a crime committed since the commencement of their employment.
This articulation marks a decisive move away from the practice-common in complex financial and regulatory investigations-of summoning lawyers as a matter of investigative convenience.
From Pepsi Foods to 2025: Threshold Scrutiny as a Substantive Safeguard
The 2025 ruling does not emerge in isolation. It builds upon a long-standing line of authority beginning with Pepsi Foods Ltd. v. Special Judicial Magistrate[4], where the Supreme Court held that summoning an accused is a serious matter requiring application of judicial mind.
What the recent cases do, however, is translate that abstract principle into a concrete operational rule for cases involving advocates. The Court expressly cautioned against “mechanical” or “exploratory” summonses-particularly where the complaint or FIR fails to disclose any specific role, intent, or unlawful gain attributable to the lawyer.
In effect, the Court elevated threshold scrutiny from a formal requirement to a constitutional obligation, especially where the accused is an officer of the court.
Professional Advice Is Not Criminal Participation
The conflation of legal advice with criminal complicity has been a recurring pattern in prosecutions arising out of failed transactions, regulatory action, or corporate collapse. The Supreme Court’s earlier decision in CBI v. K. Narayana Rao[5] had already drawn a clear doctrinal line: an advocate cannot be prosecuted merely for rendering professional advice unless there is material showing active participation with criminal intent.
What has changed post-2025 is the Court’s willingness to police this boundary at the investigative stage itself, rather than relegating advocates to the remedy of quashing after years of proceedings. Several High Courts-particularly in challenges to Enforcement Directorate and state police summons-have relied on the 2025 ruling to set aside notices issued to advocates where allegations amounted to nothing more than drafting documents or participating in negotiations. The ruling has particular salience for PMLA investigations, where ED summons under Section 50 had become routine for transaction counsel advising on cross-border restructuring or fund flows[6].
It is noteworthy, however, that the 2025 reset maintains a distinction between independent practitioners and in-house counsel. By anchoring privilege in the Advocates Act, 1961[7], the Court clarified that the heightened threshold applies specifically to ‘Advocates’ as defined by the Act, leaving the status of salaried legal employees in a more precarious regulatory position.
This judicial posture signals a clear message: criminal law cannot be used to retrospectively criminalise professional judgment. Advocates facing improper summons may seek quashing under Section 528 BNSS, anticipatory bail under Section 482 BNSS, or invoke inherent powers under Section 483 BNSS, with courts now applying heightened scrutiny post-2025.
Role Differentiation and the Rejection of Omnibus Allegations
Another recurring feature of cases involving advocates is the invocation of conspiracy in sweeping, non-particularised terms. The Supreme Court’s insistence on role differentiation-articulated earlier in Sunil Bharti Mittal v. CBI[8]-has now been expressly extended to legal professionals.
Recent decisions emphasise that criminal liability must be founded on specific acts, specific knowledge, and demonstrable mens rea. Mere proximity to the accused, or participation in lawful professional activity, is insufficient. This insistence on granularity is not pedantic; it is foundational to criminal jurisprudence.
Abuse of Process and the Chilling Effect on the Bar
The Court has also situated the issue within the broader doctrine of abuse of process[9]. Drawing from State of Haryana v. Bhajan Lal, recent rulings have noted that summoning advocates on vague or speculative allegations risks converting criminal investigation into a pressure tactic-particularly in disputes that are civil or regulatory at their core.
This protection extends beyond the person to the professional’s tools; the Court has now restricted the ‘roving’ seizure of an advocate’s digital devices, holding that an advocate’s laptop or phone-containing privileged data of multiple clients-cannot be seized unless the advocate is themselves a primary target of the investigation with specific incriminating nexus.
The institutional stakes are clear. If representing an accused becomes a potential gateway to criminal scrutiny, the independence of the Bar is imperilled. The 2025 jurisprudence recognises that fearless advocacy is not a professional privilege, but a constitutional necessity.
Conclusion: The 2025 Moment and What It Signals
The recent judicial interventions do not create a special class of immunity for advocates. What they do create is discipline-discipline in the exercise of investigative power, discipline in the application of mens rea standards, and discipline in distinguishing professional conduct from criminal wrongdoing.
The practical manifestation of this discipline is the new requirement for Higher-Rank Approval.’ Investigating officers can no longer issue summons to advocates on their own motion; such notices now require the written endorsement of an officer not below the rank of Superintendent of Police, ensuring a layer of administrative scrutiny before the legal process is set in motion.
By re-examining the threshold for summoning advocates, courts have reaffirmed a core principle of the rule of law: that process itself can be punitive, and therefore must be invoked with restraint. The 2025 decisions mark a clear recalibration-one that aligns criminal procedure with both constitutional values and the functional realities of legal practice. While investigative agencies may require time to internalize this shift-and some resistance at the operational level is inevitable-the judicial principle is now unambiguous.
This is not merely a doctrinal correction. It is an institutional statement about the kind of justice system the Constitution demands we sustain.
*Final Year Law student, Jindal Global Law School
[1] See In Re: Summoning of Advocates Who Represent Accused Persons, Suo Motu Writ (Criminal) No. 2 of 2025 (Supreme Court of India).
[2]Re: Summoning of Advocates Who Represent Accused Persons, Suo Motu Writ (Criminal) No. 2 of 2025 (Supreme Court of India).
[3] Bharatiya Sakshya Adhiniyam, 2023, ss. 126-129 (India).
[4]Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749.
[5]Central Bureau of Investigation v. K. Narayana Rao, (2012) 9 SCC 512.
[6] Prevention of Money Laundering Act, 2002, s. 50; see also Vijay Madanlal Choudhary v. Union of India, (2022) 10 SCC 386.
[7] Advocates Act, 1961, s. 2(1)(a), s. 29 (India).
[8]Sunil Bharti Mittal v. Central Bureau of Investigation, (2015) 4 SCC 609.
[9]State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335.