In a recent decision, the Supreme Court of India clarified several important aspects of legal privilege as it applies to both external and in-house counsel. Given the Court’s findings regarding the status of in-house lawyers, companies, especially those from common-law jurisdictions where privilege for in-house counsel is well established, should reassess how they protect their interests in India.
The Case: In Re: Summoning Advocates
Concerned about police and investigative agencies summoning lawyers and demanding client information, the Supreme Court of India initiated Suo Motu Writ (Criminal) No. 2 of 2025, In Re: Summoning Advocates Who Give Legal Opinion or Represent Parties During Investigation of Cases and Related Issues. The Court issued its decision on 31 October 2025.
At issue was whether communications with lawyers are protected from discovery under Section 132 of the Bharatiya Sakshya Adhiniyam, 2023 (“BSA”). Section 132 protects as privileged professional communications between a client and an advocate (i.e, a practising lawyer enrolled with an Indian Bar Council). Advocates are generally prohibited from disclosing such communications, subject to narrow exceptions; for example, where legal advice is sought for an unlawful purpose.
The Supreme Court held that investigative agencies cannot ordinarily summon advocates merely because they advised or represented an accused given the privileged nature of such communications, unless one of the statutory exceptions under Section 132 applies.
The In-House Counsel Twist
While interpreting Section 132, the Supreme Court directly addressed whether privilege extends to communications with in-house lawyers. The Court held:
- Full-time, salaried in-house counsel employed by companies are not “advocates practising in courts” for purposes of Section 132 of the BSA. They are not considered independent from the company itself.
- As a result, communications with in-house lawyers do not benefit from statutory advocate-client privilege.
Accordingly, legal advice provided by in-house counsel does not attract privilege in India. However, under section 134 of the BSA, confidential communications with legal advisers (including in-house counsel) are protected in a limited manner such that no individual can be compelled to disclose this information, unless the person is a witness and the disclosure of confidences appears necessary to the court to explain some part of the evidence.
What Companies Should Do Now
If you are a multinational with operations in India, or an investor planning to enter the Indian market, this ruling has material implications. Key considerations include:
- Recognizing that communications with in-house counsel that would be privileged in your home jurisdiction will not be privileged in India.
- Engaging Indian external counsel early when dealing with issues that may require privilege protections.
- Establishing policies and protocols to ensure privilege is properly invoked for high-risk or sensitive matters; for instance, involving external counsel at the outset of internal investigations and clearly marking documents created for the purpose of obtaining legal advice.
- If you outsource or offshore negotiation or execution functions to India, particularly where Indian lawyers negotiate foreign law-governed contracts, assessing whether communications in respect of such negotiations will be disclosable in litigations or arbitrations outside India.
Conclusion
For businesses operating in India, this decision is significant and may raise concern. That being said, with informed planning, sound protocols, and thoughtful use of external counsel, companies can mitigate the risks arising from the Supreme Court of India’s clarification of privilege. Whether your operations in India are substantial or you rely on outsourced or off-shored functions, now is the time to implement practical strategies to protect your legal interests.