Understanding ‘Attorney-Client’ Privilege in India

Understanding ‘Attorney-Client’ Privilege in India

Lira Goswami (lira@ala-india.com) & Anushka Arora (anushka.arora@ala-india.com)

Associated Law Advisers, New Delhi, India

Why Attorney-Client Privilege Matters

It is a universal principle across legal systems that effective legal representation and fair administration of justice requires free and frank communications between a client and attorney. This has led to the evolution of ‘attorney-client privilege’. Although this privilege belongs to the client, in the absence of the client, lawyers are duty-bound to assert it (on the client’s behalf). In the Indian context, client confidentiality is equally vital to prevent infringement of the constitutional guarantee against self -incrimination and the fundamental right to effective legal representation. Hence, this is an important legal safeguard.

Attorney-Client Privilege in India (under the EA)

India, a common law country, codified attorney-client privilege, initially in the Evidence Act, 1872 (“EA”), which was repealed and replaced (in 2023) by the Bharatiya Sakshya Adhiniyam (“BSA”).

For over 150 years, section 126 of the (pre-independence) EA provided that “no barrister, attorney or pleader” (collectively “Attorney”) shall be permitted, without the client’s express consent, to disclose any communication made during the professional engagement (either by the client directly or any other person acting on the client’s behalf). The privilege extended to the legal advice and all communications, documents or information received in the course of seeking legal advice, including the contents or conditions of any document shared with the Attorney or which the Attorney became “acquainted” with for purposes of the engagement. Thus, the privilege covered:

• communications made by clients for seeking legal advice;
• contents of documents and other information shared with the Attorney or which the Attorney becomes acquainted with (including reports etc. called for and provided by third parties to the Attorney for purposes of the engagement); and
• the professional advice.

Documents protected by privilege cannot be accessed by the police or other government authority nor can its contents be used as evidence.  The privilege applies to all communications (oral, written, digital or electronic) and irrespective of whether the advice is sought or given in contemplation of litigation or other non-litigation purposes (including opinions, regulatory advice, internal notes of the Attorney used for the legal advice etc). By virtue of section 127 of the EA, the privilege is extended to interpreters, “clerks or servants of barristers, pleaders, attorneys and vakils”. The conclusion of litigation or the engagement does not determine the availability of protection and the ‘privilege’ continues even after the professional engagement has ended.

Two narrow exceptions applied:

• communications made to further an illegal purpose; and
• facts indicating commission of a crime or fraud discovered after the Attorney’s engagement.

The New Regime (under the BSA)

The scope of attorney-client privilege under the (new) section 132 of the BSA remains unchanged and the same narrow exceptions continue to apply even after the repeal of the EA. The main change is that privilege is confined to an “advocate” (and to interpreters, clerks or employees of advocates). This is understandable given that the EA predated the Advocates Act, 1961 (“AA”), which, inter-alia repealed the Legal Practitioners Act, 1879 and conferred the right to practice the profession of law only on “advocates”, namely, those persons fulfilling prescribed eligibility criteria and whose name is entered on any roll of advocates maintained by the State Bar Councils (pursuant to section 17 of the AA).

The AA also created the Bar Council of India (“BCI”) inter-alia tasked with prescribing conduct rules for advocates, with disciplinary authority over advocates in the event of breach of the conduct rules or the provisions of the AA. The conduct rules issued by the Bar Council of India inter-alia stipulate that an advocate cannot be in full-time employment.  In the event of such employment, the BCI must be intimated and thereupon, such person shall cease to practice as an advocate for the duration of the employment.

Recent Supreme Court decision excluding ‘in-house’ counsels from claiming privilege

Hitherto, the scope of attorney-client privilege (under the EA) was extended to ‘in-house’ lawyers as the Bombay High Court held that they too advise their employers on questions of a legal character and therefore there is “no reason why” privilege should not be extended to them (AIR 1982 Bom.6). This judicial approach was similar to the position prevailing in the UK and USA, where too, ‘in-house’ lawyers are generally able to claim privilege despite being in full time employment as differences between them and external lawyers was not regarded to be sufficient to deny them the benefit of privilege.     

This position has recently been altered by a decision on October 31, 2025 by India’s highest court, the Supreme Court (“SC”) [2025 INSC 1275], holding that ‘in-house’ lawyers (who are full-time employees) cannot claim privilege because the BCI’s conduct rules do not permit them to practice law during their employment and hence they are not “advocates” for purposes of AA, who alone are entitled to practice law and claim attorney-client privilege under the BSA. Another factor which weighed with the SC was that salaried ‘in-house’ counsels are subject to the disciplinary authority of their employer while advocates enrolled with the Bar Council are subject to BCI’s disciplinary authority, thus, reflecting significant differences in independence and professional regulation.

The court reiterated that privilege protects against disclosure of legal advice or documents in the possession of advocates (or interpreters, clerks or employees of advocates). The court also held that advocates cannot be summoned (during a police investigation) merely because they provided legal advice or legal representation and summoning an advocate is permissible only when the statutory exceptions to attorney-client privilege apply (and the same must be specifically mentioned in the summons). In the event, any investigating authority seizes documents (including e-documents) in bulk and an objection is taken that one or more documents are covered by attorney-client privilege, the SC held that the objection (whether privilege applies or not) must be decided by the court (not the police /investigating officer).

Interestingly, while distinguishing ‘in-house’ counsels from independent, ‘external’ advocates, the SC took note of a September 14, 2010 decision of the European Court of Justice in Akzo Nobel Chemicals Limited (“Akzo Decision”) wherein also, in the context of an anti-trust investigation by the European Commission, it was held that legal privilege can be claimed only by independent (external) lawyers who are not bound to a client by a relationship of employment as, by virtue of employment, ‘in-house’ lawyers do not enjoy the same degree of professional or economic independence.

Implications of the SC’s ruling

The SC’s ruling has far reaching implications, particularly on opinions given by ‘in-house’ lawyers and documents shared with them and advice given by them to their employers during internal and other investigations. This not only underscores the need for engaging external, independent lawyers on appropriate occasions but also the need to conspicuously mark legally sensitive e-mails and other internal documents required for seeking legal advice, in separate folders marked “Privileged and Confidential- documents required for obtaining legal advice from Advocate” to avoid investigative and other government authorities seizing such documents (and facilitating judicial review of the same should it become necessary to object to their disclosure on grounds of attorney-client privilege). While the Akzo Decision primarily applies to anti-trust investigations by the EU Commission (and may not impact national laws of EU Member States providing higher degree of attorney-client privilege), the SC decision constitutes ‘law’ under the Indian Constitution and is binding throughout India.   

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