The whole of the Bar and the Bench invested in the business of administration of justice need to speak up on this issue.
Avani BansalPublished on : 27 Dec, 2020 , 2:10 pm
First they came for the poor and the Migrants.
Then they came for the Muslims.
Now they have come for the Farmers.
Guess, who’s the latest on the list – Lawyers.
And if we don’t speak up now,
We might as well never.
The Indian legal community seems to have witnessed its own ‘Hans Litten’ moment as Advocate Mehmood Pracha’s office was raided by the Special Cell of the Delhi Police this week.
Hitler hated lawyers, but one lawyer whose name couldn’t even be mentioned in Hitler’s presence was that of Hans Achim Litten. He opposed the Nazis at political trials between 1929 and 1932, and was most notably known for his cross-examination of Hitler for about three hours in May 1931 in the Tanzpalast Eden Trial. Of course, it didn’t go down well with Hitler, and in 1937, at the age of 34 years, Litten was sent to a concentration camp. On February 5, 1938, he committed suicide, frustrated by the continuous torture, interrogations and a failed attempt to escape the concentration camp.
Hans Litten and Adolf Hitler
What’s interesting is that in spite of his legacy, it took Germany a long time to truly recognise him and his courage. He got attention only with the 2011 BBC broadcast, The Man Who Crossed Hitler.
Now, with the increasing dominance of right-wingism in India, does India really need to repeat Germany’s history to understand what’s truly happening in our country? Do we really need more Hans Littens to lose their lives for speaking truth to power? And above all, shouldn’t lawyers – who do their duty of representing clients – be seen as beyond reproach, for representing something fundamental i.e. rule of law?
Even if you are not convinced that lawyers need to be beyond reproach, at least the moral duty that is cast on them as regards protecting the privileged communication with their clients, cannot be stripped away in the way it was done in Mr. Pracha’s case.
While the Republic TV anchor covering the news described Mr. Pracha as “a lawyer who is also a member of the All India Muslim Personal Law Board”, everyone in the legal community, at least in New Delhi, has well heard of Mr. Mehmood Pracha’s name. Without going into a song about him, what is relevant is that he has been representing the Delhi riot victims in CAA-NRC case. He had successfully argued for bail for Bhim Army Chief Chandrashekar Azad, who was arrested during the CAA protests.
This is certainly not the first time he has represented the weak, vulnerable, Muslims in his characteristic activist vein. The question is – why should all of us, as lawyers, not be enraged by the fact that his office as a ‘lawyer’ has been raided by the Police? And so his all other identities – ‘Muslim’, ‘Activist’ or ‘Member of All India Muslim Personal Law Board’ – are irrelevant to the larger issue at hand which is an onslaught on the professional duty of lawyers.
So what is the version of the Special Cell of the Delhi Police? They seem to be looking for ‘incriminating documents’ executing a search warrant issued on December 22 in FIR No. 212/2020, which reads,
“Whereas information has been laid before me of the commission of offences punishable under section 182, 193, 420, 468, 471, 472, 473, 120B and it has been made to appear to me that incriminating data comprising false complaint and meta data of outbox of email account which was used to send incriminating documents are essential to the investigation of FIR 212/20 of Police Station Special Cell, New Delhi“.
The sum and substance of the FIR is that while filing a bail petition, Mr. Pracha had got a document (affidavit) notarised by a lawyer who was already dead, suggesting the commission of forgery. The Delhi Police also seems to have the statement of one Irshad Ali, who has said that Mr. Pracha instigated him to depose falsely in the Court.
What has Mr. Pracha’s team said? They have denied the allegations as baseless and said that they are being ‘harassed’ for representing the clients in the CAA and Delhi riots case.
But this case has thrown open larger questions. First, can the search warrant against a lawyer or lawyers’ office be so worded that police officers claim that they can search any computer/hard disk as they are claiming, which includes privileged communication of various clients? Secondly, given that there are clear laws that afford lawyers protection as regards all professional communication, what does this ‘raid’ actually suggest and is it proper in the eyes of law?https://www.youtube.com/embed/2IYz9eUXOQY?autoplay=0&enablejsapi=1&origin=https%3A%2F%2Fwww.barandbench.com&widgetid=3
The relevant legal provisions on the question are well known. Every lawyer has a duty to keep all communication with his/her/their clients as privileged and cannot disclose it without the clients’ express consent, as laid down in Sections 126 and 129 of the Indian Evidence Act, 1872. This is reiterated in the Bar Council of India Rules, which require lawyers not to breach this attorney-client privilege in any manner. So the legal question that arises is – can there be a search warrant, based on a single broadly worded FIR, allowing blanket search and seizure of all of a lawyer’s files, computer and other privileged documents?
Let’s understand this with an example. Assume there is an FIR against the partner of a law firm with 500 lawyers. Can the police raid the entire law firm, accessing all 500+ computers, and seize thousands of documents? I am giving this example of a big law firm to draw home the point – that what is at stake here is not just the injustice to Mr. Pracha’s team, but the entire legal community.Assume there is an FIR against the partner of a law firm with 500 lawyers. Can the police raid the entire law firm, accessing all 500+ computers, and seize thousands of documents?Avani Bansal
Surely, there has to be a reasonable way for the investigating authorities to do what they need to do – to collect evidence, without this blanket all-encompassing breach of attorney-client privilege. For example, the search warrant could have stated that anything pertaining to the case in question, in which the eye–witness was allegedly tutored, or affidavit with false signatures were given needs to be seized. Further, Mr. Pracha and his office could have been given reasonable time to respond or to produce evidence. A search warrant to raid his office is not only a disproportionate response, it is violative of the cardinal principles of the legal profession.
There are more interesting intricate legal questions that arise. Both the Indian Evidence Act and the BCI Rules cast the duty for maintaining attorney-client privilege on the lawyer. So when the police, or any other entity, on whatever pretext, does an action that leads to the violation of this privilege, what are the legal consequences against such third parties that flow? Secondly, when such attorney-client privilege is violated, on no fault/mistake of the lawyers, what is the legal obligation of the lawyers? Thirdly, and this one is for pure academic interest hopefully, can all the clients bring a representative suit under Order I, Rule 8 of the Civil Procedure Code (CPC) against the lawyer and/or the police?”Attorney-Client privilege?”
It’s important to note that the current available exceptions to attorney-client privilege may still not be able to justify the raid and the wording of the search warrant in Mr. Pracha’s case. Sections 126-129 of the Indian Evidence Act, which deal with attorney-client privilege, clarify that only the clients can waive the privilege, not the attorney, and that such waiver by the client should be ‘express’ (not necessarily in writing).
The lawyer, Section 126 tells us, is not bound by attorney-client privilege in two circumstances. Firstly, when the client makes a communication in furtherance of any illegal purpose. For example, if a client comes and says “I am going to kill xyz right now, straight after leaving your office”, the lawyer in this case has no duty to keep it privileged. Note, however, if the client comes and says “I have murdered xyz before I came to your office and I want you to represent me”, this is protected by the attorney-client privilege as the lawyer’s duty is to ensure that whatever the client has shared in confidence, is not shared by the attorney to the disadvantage of the client. The intent behind this rule is that everyone should be able to confidently approach their lawyers, without any fear of being turned in, thereby denying them a fair chance to be represented in the courts, and/or taking away the right to defend themselves.
Another situation where attorney-client privilege does not bind a lawyer is when “any fact observed by an attorney in the course of his or her employment shows a crime or fraud has been committed since the start of his or her employment”.
But what happened in the current case may arguably be covered by the exception of ‘forced disclosure’, when a lawyer may be forced to disclose privileged communication due to ongoing civil and criminal proceedings. There is no law or case/judgment (as far as I am aware) that directly lays down the conditions for such wide scope of raid of a lawyer’s office. There are specific provisions in both Criminal Procedure Code and Civil Procedure Code for compelling production of documents (Section 91 CrPC) or seeking discovery of documents or through interrogatories (Section 30, Order XI of CPC), but having a search warrant for seizure of all hard disks of a lawyer’s office is/should be clearly beyond the scope of these provisions.
Just to remind ourselves of the importance attached to the attorney-client privilege again, it may be apt to quote a passage cited by Lord Bingham from Lord Taylor’s judgment in R v. Derby Magistrates’ Court: “
The principle which runs through all these cases, and the many other cases which were cited, is that a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.”
It is because of this wide issue that is at stake here, that the whole of the Bar and the Bench invested in the business of administration of justice need to speak up on this issue. Else, the future members of the Bar will definitely ask us – where was your Council when another Hans Littens was being hounded?
courtesy Bar and Bench