Legal Privilege in India: External Advocates vs. In-House Counsel: The scope of legal privilege protecting confidential communications with lawyers in India differs significantly depending on whether the advisor is an external, practicing advocate or a salaried, in-house counsel.

The Scenario: A Comparative Example>

Consider Mr. Amit Verma, CEO of a growing tech firm, facing a regulatory inquiry.

He seeks advice from: Ms. Riya Sharma: A practicing advocate registered with the Bar Council, advising on litigation strategy.

Mr. Sahil Rao: The company’s in-house general counsel, an employee providing day-to-day legal and business guidance.

When the investigating agency demands access to communications,

Mr. Verma finds that the legal shield of confidentiality and privilege is substantially stronger for Ms. Sharma than for Mr. Rao. The agency's ability to summon Ms. Sharma regarding her external advice is heavily restricted, whereas Mr. Rao’s internal communications are far more susceptible to scrutiny.

The Statutory Basis for the Distinction

This difference stems from how Indian law defines who qualifies for the highest level of privilege.

Stronger Privilege for External Advocates

The robust protection applies specifically to communications made to a practicing advocate during the course of their professional engagement.

Bharatiya Sakshya Adhiniyam, 2023 (BSA): Section 132 states that no advocate shall be permitted to disclose communications made for the purpose of their service as such advocate, without the client's consent.

Indian Evidence Act, 1872 (IEA) (Superseded): The predecessor, Section 126, mirrored this protection for barristers, attorneys, pleaders, or vakils.

The key is the term "advocate." Under Section 2(a) of the Advocates Act, 1961, an "advocate" is typically defined as a person enrolled to practice law, generally implying external practice rather than being a full-time corporate employee.

Weaker Protection for In-House Counsel

In-house counsel, being salaried employees under an employment contract, often do not meet the narrow statutory definition of a "practicing advocate" for the purposes of these core privilege sections.

Limited Protection for Internal Advice

While the strongest privilege is reserved for external advocates, communications with in-house counsel are not entirely unprotected.

The BSA (Section 134) and the IEA (Section 129) offer a degree of protection for communications made with a “legal adviser” or “legal professional adviser.”

However, the scope and definition of this protection for internal legal advice remain less clearly defined and generally considered weaker than the full privilege afforded to external advocates.

Recent Judicial Clarity: It's worth noting that the Supreme Court, in a recent ruling such as the matter involving Suo Motu Writ Petition (Criminal) No 2 of 2025 (or similar recent pronouncements), has reiterated that the privileges afforded to in-house counsel do not equate to those enjoyed by external advocates.

Takeaway for Confidentiality

When absolute confidentiality is the goal, engaging an external, practicing advocate offers the highest level of statutory protection under the BSA. When relying on in-house counsel, internal legal advice must be carefully segregated from general business advice, as the protection available to a full-time company lawyer is considerably more vulnerable to legal inquiry.

NAMAN SINGHAL- Student, 2ndYear, Himachal PradeshNational Law University, Shimla,(H.P.)