On Thursday, the Delhi Police’s Special Cell raided the office of Mehmood Pracha, a lawyer representing several people who are accused in the February Delhi riots.

The raid, which lasted for 15 hours, relates to alleged cases of fraud. This includes allegations that Pracha had forged signatures on a notarised document as well as instigated a man to depose falsely in a riots case, reported the Print.

The riots in February left 53 people dead, many injured and thousands more affected. They were the most serious Hindu-Muslim clashes in seven decades.

The drastic police action has raised serious questions among Indian lawyers about the breach of attorney-client privilege – the idea that communication between a person and his lawyer is confidential. By accessing computers used by Pracha, the Delhi Police can potentially access communication between Pracha and the clients he represents in the Delhi riots cases.

Compromising the law

“This action is deeply worrying as lawyer-client confidentiality is the bedrock of legal practice, especially for criminal defence lawyers,” explained Abhinav Sekhri, a lawyer practising in Delhi.

Anuj Bhuwania, a professor at OP Jindal Global University explains that this action strikes at the heart of rule of law in India: “If a lawyer fighting against the state can simply be raided by the state and his materials seized then really, it practically ends rule of law.”

Mumbai-based Yug Chaudhry raises similar concerns about the blow this raid strikes at India’s legal system. “This raises very serious concerns especially given the present climate where the government is persecuting dissenters,” he explained. “On top of that if the government then starts prosecuting lawyers since they are fighting for dissenters, the whole legal system which depends so heavily on lawyers will be severely compromised.”

Unprecedented

Bhuwania points out the unprecedented nature of what this raid on Pracha represents: “We’ve had the Emergency, we’ve had situations like the fight against Naxals but I can’t recall if the state ever took such legal action before.”

Sekhri argues that not only was the Delhi Police at fault, so was a court that allowed this. “In fact, what makes it more worrying is that the police could actually have tried to ‘raid’ his office themselves but they got a warrant from a judge, who is designed to function as a check and figure out what is the purpose of the search,” he said.

Illegal raid

Nikhil Mehra, a lawyer practising in Delhi identifies further legal gaps in the raid. “The warrant has been issued under Section 93 [of the Code Of Criminal Procedure], which only permits the “searching” of specified documents,” explained Mehra. “Those are the documents on the pretext of which the warrant would have been obtained in the first place. However by seizing the entire hard disk and meta data pertaining to all files, the police have violated the terms of the warrant. Over and above the breach of the terms of the warrant, this will also obviously cause a breach of the attorney client privilege in relation to other cases too, which are not the subject matter of the warrant.”

In a video of the raid, Pracha is seen making a similar point: “As per the order from the judge, you can’t seize [my computers] but you can look [at my emails].”

However, the policeman insists that he must seize Pracha’s hard drives.

Violating the Constitution

However, another possible violation seems even more egregious.

By raiding the office of a lawyer and seizing laptops and other electronic equipment that could contain sensitive communication related to the cases, the police is putting the accused in a position of incrimination themselves – “implicating or exposing one’s own self to criminal prosecution”. This is constitutionally prohibited.

The Indian Constitution under Article 20 (3) provides protection to an accused from self incrimination.

The provision states that, “No person accused of any offence shall be compelled to be a witness against himself.”

In MP Sharma and Others vs Satish Chandra in 1954, a eight-judge bench of the Supreme Court went into the question of what constitutes self-incrimination.

The bench made the following observation on the right provided under Article 20 (3):

“Analysing the terms in which this right has been declared in our Constitution, it may be said to consist of the following components. (1) It is a right pertaining to a person ‘accused of an offence’; (2) It is a protection against ‘compulsion to be a witness’; and (3) It is a protection against such compulsion resulting in his giving evidence ‘against himself’.”

On what is to be a witness, the court made it clear that oral deposition alone is not the end of the definition. The bench said: A person can “be a witness” not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (see Section 119 of the Evidence Act) or the like.

“To be a witness” is nothing more than “to furnish evidence”, and such evidence can be “furnished through the lips or by production of a thing or of a document or in other modes”.

Keeping this in mind, it is clear that if the police in the course of analysing the electronic equipment seized from lawyer Pracha finds incriminating statements or documents relating to the accused in the riots cases, this cannot be produced as evidence to convict the accused in the trial. There have been sensational cases in the past in which similar attempts by the police to lodge cases against lawyers for their communications with accused people have been thrown out by the courts.

Rajiv Gandhi case and raids

After former Prime Minister Rajiv Gandhi was assassinated in May 1991, the Central Bureau of Investigation and the Tamil Nadu police launched intense raids on the Liberation Tigers of Tamil Eelam, the Sri Lankan group responsible for the killing.

In doing so, the Tamil Nadu police also stepped up its efforts to arrest the people who had killed K Pathbanabha in Chennai in 1990. Pathbanabha was the leader of the Eelam People’s Revolutionary Liberation Front, a rival of the LTTE.

In the searches the Tamil Nadu Police conducted on D Veerasekaran, lawyer for one of the accused Gundu Santhan, they found a letter purportedly advising Santhan to continue to abscond.

The police filed a case of abetment to crime under the draconian Terrorism and Destructive Activities Prevention Act.

Based on a warrant issued by a court, the police arrested the lawyer. The court also dismissed the bail application filed by the lawyer.

The matter was then litigated in the Madras High Court under Article 227, which provides the court superintendence over subordinate courts.

In the judgement, the court criticised the Tamil Nadu police and set the lawyer free on bail.

In a matter that is similar to the Pracha case, the court said the letter purportedly written by the lawyer to Santhan could at best be deemed client-lawyer communication. In the judgement, the court also extracted scholarly writings that said that such communication should remain secret whatever the circumstances. This was essential for the proper delivery of justice.

When the lawyer was arrested in 1991, the Madras Bar stood in solidarity and there were protests asking for his release. The Pracha case, however, is yet to see protests of such scale by lawyers against the Delhi Police.

(Compiled by us based on articles by Shoaib Daniyal and Sruthisagar Yamunan in The Scroll.in.)