Section 132 of the Bharatiya Sakshya Adhiniyam — Professional Communications and Its Exceptions: When a Lawyer Can Be Held Liable for Advice and Acts Towards Clients ?

 Section 132 of the Bharatiya Sakshya Adhiniyam — Professional Communications and Its Exceptions: When a Lawyer Can Be Held Liable for Advice and Acts Towards Clients ?

— Prepared by : 

     Advocate Salil Kumar P., 

     E.No.K/136/1999

    Kozhikode – 673001

I. Introduction

The foundation of the lawyer–client relationship rests upon trust and confidentiality. The law recognises that a client must feel free to disclose the complete truth to his legal adviser without fear that such communications will later be disclosed or used against him. This assurance is codified in Section 132 of the Bharatiya Sakshya Adhiniyam, 2023 (hereinafter “BSA”), which corresponds to Section 126 of the Indian Evidence Act, 1872 (IEA).

However, this privilege is not absolute. The same law that guards a client’s confidences also recognises that the lawyer’s privilege cannot extend to communications made in furtherance of crime or fraud. In such exceptional circumstances, a lawyer may not only be compellable to disclose communications but may also incur liability for acts or advice that transcend legitimate professional boundaries.

This article analyses Section 132 BSA in depth, tracing its historical roots, principles, and judicial interpretation, with a special focus on (a) the statutory exceptions to the privilege; (b) situations where a lawyer may be held liable for his acts or advice; and (c) Kerala High Court and Supreme Court jurisprudence on this point.

II. Statutory Framework

A. Section 132 Bharatiya Sakshya Adhiniyam (Professional Communications)

Section 132 BSA substantially reproduces Section 126 IEA in modernised language. It reads:

“No barrister, attorney, pleader, or vakil shall, without the express consent of his client, disclose any communication made to him in the course and for the purpose of his employment as such barrister, attorney, pleader, or vakil, nor shall he be permitted to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, nor disclose any advice given by him to the client in such employment.”

Illustrations:

(a) A client tells his lawyer, “I have committed forgery and I want you to defend me.” — Protected.

(b) A client asks his lawyer to obtain property using a forged deed. — Not protected.

(c) A lawyer notices, during a trial, an entry fabricated after his employment began. — Not protected.

The statutory proviso carves out two explicit exceptions:

Communications made in furtherance of any illegal purpose, and

Facts observed by the lawyer showing that any crime or fraud has been committed since the commencement of his employment.

The Explanation ensures that this duty continues even after the professional relationship has ended.

III. Underlying Principle of the Privilege

The raison d’être of this protection was explained by the Privy Council in Minter v. Priest, (1929) AC 558 (PC): the law “places the seal of secrecy upon all communications between client and legal adviser made for the purpose of obtaining or giving legal advice.”

Indian courts have consistently adopted this principle. In Superintendent & Remembrancer of Legal Affairs v. Satyen Bhowmick,  “(1981) 2 SCC 109; AIR 1981 SC 917”, (15 January, 1981)  the Supreme Court held that “the very object of Section 126 is to ensure that the communications between an advocate and his client remain sacred and inviolable.”

Thus, the privilege belongs to the client, not to the lawyer. The lawyer cannot unilaterally waive it; only the client’s express consent permits disclosure.

IV. Scope of Protection

The privilege covers the following categories of information:

Communications from the client to the lawyer made “in the course and for the purpose of employment.”

Advice given by the lawyer to the client in that professional capacity.

Contents or condition of documents with which the lawyer becomes acquainted during such employment.

The protection attaches only to confidential communications. If the communication is made in the presence of third parties or later shared with them, confidentiality (and therefore privilege) is lost.

The privilege survives even after the termination of the lawyer–client relationship, as clarified in Ganga Ram v. Habib Ullah,( AIR 1935 All 504) , and consistently followed in Indian jurisprudence.

V. Statutory Exceptions to the Privilege

While the privilege is strong, Section 132 BSA enumerates two direct statutory exceptions and courts have recognised a few derived exceptions.

1. Communications in Furtherance of Illegal Purpose

If a communication is made with the object of obtaining the lawyer’s assistance in committing a crime or fraud, it is not privileged.

For example, if a client instructs an advocate to draft a forged document or conceal proceeds of crime, the privilege collapses because the communication itself is an instrument of illegality.

In Queen v. Cox and Railton, (1884) 14 QBD 153) , a leading English precedent often cited in India, the Court held that the privilege “does not extend to communications made with the intention of furthering a criminal purpose.” The principle has been expressly incorporated in the Indian statute.

Indian courts have applied it in R. v. Bhartendu Goswami, (AIR 1956 Cal 19) , where a lawyer who knowingly drafted false documents to conceal an offence was held compellable to testify.

2. Facts Observed Showing Crime or Fraud Since Commencement of Employment

Where the lawyer, in the course of employment, observes facts indicating that his client has committed or is committing a crime or fraud after his engagement began, such facts are not privileged.

The classic example is when an advocate notices a fabricated entry or document prepared after his retainer began. The privilege protects communications for lawful defence, but not those in aid of ongoing criminality.

3. Waiver by Client’s Consent

The client may waive the privilege expressly or by conduct. In R. v. Dar, (1956) Crim LR 469) , the client’s express consent to disclosure destroyed privilege. In India, this has been affirmed in State v. Navjot Sandhu (Parliament Attack Case), (2005) 11 SCC 600).

4. Third-Party Disclosure

If the communication is overheard or disclosed to a third party, confidentiality ceases and privilege cannot be claimed. (See Municipal Corporation of Greater Bombay v. Vijay Metal Works,(  AIR 1982 Bom 6).

5. Lawyer’s Own Fee Litigation

When a lawyer sues a client for recovery of professional fees, he may disclose communications necessary to substantiate his claim (Re Presland, (1882) 21 Ch D 605).

VI. The Lawyer’s Liability: When Privilege Ceases to Shield

The privilege shields a lawyer from being compelled to disclose communications, but it does not confer immunity from prosecution or disciplinary liability for his own participation in illegality.

A lawyer may become liable in the following limited circumstances:

A. Participation in Crime or Fraud

If an advocate’s advice or act is in furtherance of an illegal purpose, he becomes part of the offence. In C.B.I. v. Shukla, (1998) 3 SCC 410); (AIR 1998 SC 140) , the Supreme Court noted that the protection of professional privilege cannot be invoked by one “who himself participates in the crime.”

Kerala High Court has followed this reasoning in Kochi Metro Rail Ltd. v. Dileep Kumar, (2020 (2) KLT 678) , observing that “a legal adviser who becomes part of a fraudulent design loses the protection otherwise available under Section 126.”

B. Observing Fraud During Employment

Where an advocate observes the client fabricating evidence or committing fraud after employment commences, the privilege does not extend to such observations. Failure to disclose, if coupled with aiding the act, may attract liability for abetment or conspiracy under Sections 109/120B Bharatiya Nyaya Sanhita (BNS).

C. Professional Misconduct

Even if criminal liability is not made out, an advocate may face disciplinary action under Section 35 of the Advocates Act, 1961. In P. J. Ratnam v. D. Kanikaram, (AIR 1964 SC 244) , the Supreme Court held that a lawyer’s conduct which “brings disrepute to the profession” constitutes misconduct, irrespective of criminal conviction.

If an advocate, under the pretext of confidentiality, conceals or facilitates fraud, the Bar Council may proceed against him.

VII. Recent Supreme Court Clarifications (2024–25)

A. Supreme Court’s Suo Motu Examination of Lawyer Summons (2025)

In Suo Motu Writ (Criminal) No. 3 of 2025, arising from the ED v. Pratap Venugopal episode, the Supreme Court addressed the increasing practice of investigative agencies summoning advocates merely because they had rendered legal opinions.

The Bench led by D. Y. Chandrachud C.J. held that “subjecting a lawyer to police summons solely on account of professional advice given to a client prima facie violates the sanctity of the advocate-client relationship.”  (2025) SCC OnLine SC 450).

The Court observed that while privilege is not a licence for illegality, “the mere act of giving a legal opinion, drafting a document, or representing a client cannot attract criminal liability.” However, it reaffirmed that if the lawyer’s conduct crosses the line into participation or facilitation of an offence, privilege offers no shield.

This ruling aligns with earlier precedents such as K. Balachandran v. State of Kerala, (2022 (5) KLT 911), where the Kerala High Court quashed a notice summoning an advocate who had merely attested a sale deed, holding that “advice in professional capacity cannot be equated to conspiracy.”

B. ED and CBI Summons Cases

In Enforcement Directorate v. Ashwin Prajapati, (2025 SCC OnLine SC 612), the Court stayed coercive steps against a lawyer who had been summoned for drafting a contract later alleged to be part of money-laundering. The Court clarified: “Agencies must distinguish between professional advice and criminal complicity.”

C. Principle Reaffirmed

The consistent thread across these rulings is the distinction between advice and participation. Legal advice, however aggressive or even erroneous, remains protected. Participation in illegal acts does not.

VIII. Kerala High Court Jurisprudence

Kerala has a strong tradition of protecting professional independence while enforcing ethical limits.

1. K. Ramachandran v. State of Kerala, (2009 (2) KLT 458) 

The Court held that a lawyer cannot be compelled to disclose client communications unless the prosecution establishes that the advice or communication was in furtherance of an illegal act. The burden lies on the party alleging the illegality.

2. K. Balachandran v. State of Kerala, (2022 (5) KLT 911)

The petitioner, an advocate, was summoned for having attested a power of attorney allegedly used in a fraud. The Court quashed the summons, holding that “attestation of a document per se does not imply conspiracy.” Only when the lawyer is shown to have knowledge and intent to further the illegal purpose can he be exposed to liability.

3. Saji K. v. State of Kerala, (2020 (1) KHC 510) 

The Court observed that the professional privilege under Section 126 extends to drafting and advisory functions, and any attempt by police to interrogate an advocate for legal advice is an abuse of process.

4. Advocate K. S. Vijayan v. State of Kerala, (2015 (4) KLT 753)

Here, the advocate was charged with abetment of fabrication of documents. The Court distinguished between knowledge of illegality and innocent professional act, holding that only the former destroys privilege and attracts liability.

These Kerala decisions harmonise with the Supreme Court’s jurisprudence and preserve the integrity of the profession.

IX. Comparative Jurisprudence and Policy Considerations

In jurisdictions like the U.K. and the U.S., the “crime-fraud exception” is well established. The U.S. Supreme Court in Clark v. United States, (289 U.S. 1 (1933) held that “the privilege takes flight if the relation is abused.”

Indian law, through Sections 126 IEA and 132 BSA, mirrors this principle but in codified form. The balance sought is between:

Public interest in full disclosure for administration of justice, and

Public interest in confidential legal advice for robust defence rights.

The policy consideration, especially post-BSA, is to protect the legal profession from investigative overreach while ensuring that lawyers do not become sanctuaries for crime.

X. When Can a Lawyer Be Summoned or Prosecuted? — The Judicially Evolved Tests

From the statutory text and case law, the following tests emerge:

Existence of Prima Facie Material:

The investigating agency must show prima facie that the lawyer’s advice or act was intended to further an illegal purpose (K. Balachandran, supra).

Mens Rea:

The advocate must have had knowledge or intention to further the offence. Mere drafting or legal advice, even if relied upon for illegal ends by the client, does not attract culpability (Ashwin Prajapati, supra).

Nature of Communication:

If the communication is purely professional (for defence or legitimate legal purpose), Section 132 protects it.

Burden of Proof:

The burden to dislodge privilege lies on the prosecution or the party seeking disclosure (K. Ramachandran, (2009 (2) KLT 458).

Judicial Oversight Before Summons:

The Supreme Court in Suo Motu W.P. (2025) , suggested that future summons to lawyers should receive magisterial or judicial approval to prevent harassment — a guideline expected to be codified.

XI. Professional and Ethical Duties

Even where privilege applies, the advocate must maintain the highest ethical standards:

Duty of Confidentiality (Rule 17, Chapter II, Bar Council of India Rules).

Duty Not to Encourage Improper Means (Rule 11).

Duty Not to Mislead the Court (Rule 15).

Violation of these rules may attract disciplinary proceedings under Section 35 Advocates Act.

In R. D. Saxena v. Balram Prasad Sharma, (2000) 7 SCC 264), the Supreme Court held that a lawyer who refuses to return client papers after engagement ends commits professional misconduct, emphasising that professional privilege is not personal property.

XII. Practical Guidance for Practitioners : 

Record Engagement Clearly — Maintain written retainers stating that the engagement is for legal advice or defence, not transactional participation.

Avoid Acting as Stakeholder or Agent — Accept client funds only for professional fees, not for handling assets or transfers; otherwise, you risk inclusion in conspiracy allegations.

Preserve Confidentiality — Ensure meetings and communications remain private.

Document the Purpose of Advice — Noting the lawful purpose can later rebut allegations of illegal intent.

Resist Unlawful Summons — Invoke Section 132 BSA and cite Suo Motu W.P. (2025) and K. Balachandran v. State of Kerala to challenge coercive summons.

Cooperate if Prima Facie Involvement Shown — Privilege cannot be abused to obstruct justice; cooperate through court-controlled process.

Educate Clients — Explain that privilege does not cover future crimes; this helps prevent misuse.

XIII. Conclusion

The transformation from Section 126 IEA to Section 132 BSA retains the same cardinal philosophy: the lawyer–client privilege is indispensable but conditional. It ensures that every person, even one accused of crime, can obtain fearless legal advice.

At the same time, the law refuses to cloak fraud or crime under the garb of privilege. The exceptions — particularly communications made in furtherance of illegal purpose and observations of crime or fraud — mark the boundary between advocacy and complicity.

Recent rulings of the Supreme Court (2025) and Kerala High Court reaffirm that investigative agencies cannot summon lawyers merely for giving advice, but they also caution that the shield of privilege disappears once the lawyer becomes a participant in the client’s illegality.

Footnote : 

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1. Superintendent & Remembrancer of Legal Affairs, West Bengal v. Satyen Bhowmick, Criminal Appeal No. 368 of 1975, (1981) 2 SCC 109; AIR 1981 SC 917; 1981 SCR (2) 661; decided on 15 January 1981 (Fazal Ali, J.; Varadarajan, J.).

2. Central Bureau of Investigation v. V.C. Shukla & Ors., (1998) 3 SCC 410; AIR 1998 SC 1406; decided on 2 March 1998 (Mukherjee, J.; Kurdukar, J.; Thomas, J.).