Institute of Legal and Management Studies

The Supreme Court has held that communications between in-house counsels and their employers are not protected by client-attorney privilege under Section 132 of the Bharatiya Sakshya Adhiniyam (BSA), as in-house counsel are not 'advocates' within the meaning of the Advocates Act, 1961.

However, the Court held that communications between in-house counsel and the legal advisor to their company will be protected from disclosure as per Section 134 BSA.

A bench comprising Chief Justice of India BR Gavai and Justice K Vinod Chandran made this observation in the suo motu case on the issue of investigating agencies summoning advocates over the legal advivce given by them to their clients.

In the case, the General Counsels Association of India; members of which are the General Counsels and Legal Advisors of prominent companies filed an intervention application asserting their rights under Section 132 and 134 of the BSA. They contended that, except for appearances in Court, they performed all other duties of a legal advisor.

However, the Court disagreed, observing that their regular employment with full salaries takes them away from the definition of an Advocate as defined under the Advocates Act 1961.

"Whether, in his employment, an In-house Counsel advises his employer on legal affairs would not bring an In- house counsel, a fully salaried employee, within the definition of an Advocate which would also not enable him to claim the privilege with respect to communications with his employer as available under Section 126 Evidence Act (previous version of S 132 BSA), but could definitely take up other pleas, which we are not required to look into at this stage," the Court observed.

Distinguishing an in-house counsel from an independently practising advocate, the Court observed :

"An In-house counsel though is engaged in the job of advising his employer on questions of law would even then be influenced by the commercial and business strategies pursued by his employer and would always be beholden to his employer and obliged to protect their interest."

In conclusion, the Court held :

1.In-house counsel will not be entitled to the privilege under Section 132 since they are not Advocates practicing in Courts as spoken of in the BSA.

2. The In-house counsel, however, would be entitled to the protection under Section 134 insofar as any communication made to the legal advisor of his employer, which however, cannot be claimed for the communications.

Other reports from the judgment can be read here.

Case : In Re : Summoning Advocates Who Give Legal Opinion or Represent Parties During Investigation of Cases and Related Issues | SMW(Cal) 2/2025

Citation : 2025 LiveLaw (SC) 1051

Click here to read the judgment