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Tax dispute with Indian authorities: Jane Street moves SC, seeks clarity on 'legal privilege'
Jane Street has approached the Supreme Court. The company seeks clarity on legal protection for internal communications. This comes amid a dispute with Indian tax authorities. The case concerns whether advice from in-house legal teams is protected. The Supreme Court has admitted the review application. The matter is listed for hearing on March 25.
Mumbai: Amid a cold tussle with the Indian tax authorities, the New York trading biggie Jane Street has moved the Supreme Court (SC) on the contentious issue of legal protection relating to certain confidential internal communications.
The private quantitative trader, which is having a run-in with the Indian capital market regulator and has come under the glare of the tax office, has filed a review application, seeking a judicial clarification from the apex court on what constitutes 'legal privilege'.
The matter, which could have a bearing not just on Jane Street's arms trading here but across business entities in the country, has revived the question on whether confidential legal advice, including advice provided by 'in-house legal teams' acting in a legal advisory capacity, is protected under Bharatiya Sakshya Adhiniyam, 2023 (BSA)-the new law that replaced the Indian Evidence Act of 1872.
The filing by Jane is in connection to enquiries by the Income tax (I-T) department which, in the course of its investigations, may have been keen to access some of the internal emails of the overseas group. Jane runs trading subsidiaries in India as well as offshore funds (in Hong Kong and Singapore) which are registered as foreign portfolio investors (FPIs) with the Securities & Exchange Board of India (Sebi).
A Jane Street spokesperson declined to comment on the matter.
Review plea linked to apex court ruling in Oct '25 and connected to I-T dept enquiries
SC's DIRECTIONS
While refraining from laying down "guidelines", a three-judge bench of the SC in October had given its directions on "the way forward" on client attorney privilege. It said that "an in-house counsel, though engaged in the job of advising his employer on questions of law, would even then be influenced by the commercial and business strategies pursued by his employer and would always be beholden to his employer and obliged to protect their interest."
The contours of the client-attorney privilege are codified in Sections 132 to 134 of the BSA. In the directions issued, the court had said that in-house counsel would not be entitled to the privilege under Section 132 since they are not advocates practising in courts as spoken of in the BSA. The in-house counsel, however, would be entitled to the protection under Section 134 insofar as any communication made to the legal advisor of his employer, which however, cannot be claimed for the communications between the employer and the in-house counsel, said the bench.
Thus, as per the court's directions, while emails between officials of a company's legal department and a lawyer hired by the company would be protected, communications between the company's officials with their colleagues and bosses would have no such legal shield.
The Court has admitted Jane's review application, ordered issuance of notice to the tax department, and has listed the matter for hearing on March 25. According to legal circles, Jane Street, which has consulted a well-known retired judge on the subject, probably strongly believes that confidential communications with in-house counsel are protected under the BSA as communications with a legal advisor.
The October ruling also mentions that a body representing general counsels and legal advisors of prominent companies had filed an intervention application asserting their rights under Section 132 and 134 of BSA. While the Bar Council of India Rules prohibit advocates from being full-time salaried employees while practising, it was argued that but for pleading and appearing in courts they carry on the very same duties as legal advisors.
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Source: EconomicTimes
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