When Shakespeare wrote, “The first thing we do, let’s kill all the lawyers,” he captured a profound truth about the role of law in preserving order and justice. To eliminate lawyers, he implied, was to dismantle the very framework that protects society from tyranny.

Some 400 years later, that observation reverberates in the corridors of our courts as India’s Supreme Court, while issuing much-needed directions to protect advocates from arbitrary summons, has drawn a line that inadvertently sidelines an equally vital segment of the legal profession—the in-house counsel (IHC).

The Court’s recent clarification that salaried IHCs are not “advocates” under the Advocates Act 1961 has reignited an old and uneasy debate: Do corporate lawyers operating within organizations deserve the same professional privilege protections as their counterparts in law firms or private practice? The ruling may appear doctrinally consistent with the statutory framework, but it leaves behind complex jurisprudential and practical consequences that undermine both justice and corporate governance.

India’s IHCs operate at the intersection of law, strategy, and business. They are the first point of contact for management and often the only legal voice in critical commercial or regulatory decisions. When the CEO or Board faces a compliance dilemma or a crisis, it is the IHC who steers them through legal uncertainties. Despite the indispensable role of IHCs, if the law continues to treat their communications with employers as unprivileged—merely subject to contractual obligations like non-disclosure agreements—then any breach would be addressed only as a contractual violation.

Yet, such communications would still be admissible as valid evidence in court without the benefit of legal privilege. This unbalanced approach tilts the scales of justice unfairly against the interests of IHCs, who’ll get summoned to depose by courts unlike the rest in the profession, and the companies they represent.

This distinction erodes the moral and practical foundation of attorney-client privilege. Section 132 of the Bhartiya Sakshya Adhiniyam, 2023 (corresponding to the erstwhile Section 126 of the Evidence Act, 1872) grants privilege to communications between a client and an advocate acting in a professional capacity. But the moment a lawyer accepts a salaried position, this protective veil falls away, exposing the corporates to humongous risks. The assumption, rooted in colonial-era professional hierarchies, is that a salaried counsel’s advice is driven by commercial loyalty rather than professional independence. Such an assumption is outdated, even discriminatory, in a modern economy where most global corporations rely heavily on in-house legal departments to uphold compliance and ethical standards.

Indeed, most developed jurisdictions—including the United Kingdom, United States, Singapore, and many EU nations—extend privilege to IHC communications, subject to conditions ensuring that the counsel acts in a legal and not purely executive capacity. In contrast, India’s position effectively penalizes lawyers for working within corporations. The result is paradoxical: a lawyer’s advice is privileged only so long as it is external and billable, but once it becomes internal and continuous, it loses protection.

This hierarchy compromises the very confidence on which effective legal counsel depends. If company executives fear that confidential communications with their general counsel may later be exposed in court, they are less likely to seek early legal advice. The chilling effect on internal compliance is palpable. Preventive lawyering—the notion that informed legal advice can preempt wrongdoing—collapses if such advice is stripped of confidentiality.

From a governance standpoint, the inconsistency also undermines corporate self-regulation. IHC are often duty-bound to report potential violations and foster ethical culture within the company. Denying them confidentiality protections reduces them to risk managers rather than gatekeepers. It also raises practical dilemmas: how can an IHC maintain compliance and facilitate open disclosure if each internal memo or opinion risks becoming prosecutorial evidence?

Opponents of reform, including the Solicitor General, argue that conferring privilege on IHCs would create a special class, which violates equality under Article 14. Yet, equality does not mean uniformity.  Instead, it means relevant distinctions should be acknowledged and protected. IHC are not asking for immunity—only for parity with practicing advocates when performing identical functions. The real danger of inequality lies in treating functionally equivalent legal advisors differently merely because of their employment status.

Anything less than Attorney General’s assertion that IHC should “get the same privileges as lawyers” risks perpetuating a two-tier profession—one that shields external counsel behind the curtain of privilege while exposing in-house legal teams to potential criminal liability, professional compromise, and managerial distrust. If the law’s purpose is to uphold fairness and candor, then surely those entrusted to ensure compliance from within an enterprise deserve no less protection than those advising it from outside.

If justice is blind, let it not also be shortsighted. In recognizing IHC as genuine advocates of legality and conscience, the legal system would not be favoring a class—it would be defending the architecture of justice itself.

Disclaimer: The opinions and views expressed in this article/column are those of the author(s) and do not necessarily reflect the views or positions of South Asian Herald.

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