Advocate’s Protection is the Need of Hour, My Lord!

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It is well known fact that Legal Practice is a highly noble profession. Even the retired High Court Judges and other retired Judges who are already practicing as Senior Advocates and Advocates respectively with many other lakhs of Co-Advocates in India are under this new serious threat of raids and police action by police/cbi etc. in/on their chambers/offices even during presence of the client(s) and seizure/confiscation of the material evidence including all the information of case(s) & evidence briefs and petitions, research work saved in their laptops & computers.

The problem is that till an advocate reaches the Court for any protection order or for stay/restriction and if such order passed against such raid & confiscation by the Court all the material shall be copied and saved by police and case/petition/evidence would be destroyed by all means.

In such circumstances there is no benefit in choosing legal practice as career option because despite being protected under Sections 126 to 129 of Indian Evidence Act, the police or other police agencies working for political agendas will act in such vendetta in full arbitrary manner & there is no quick & immediate relief for such act done by police & other agencies including Government. The threat of such bare sword on the neck of Advocates, their staff and associates as well as on the clients on the name of raids and seizure/confiscation of evidence will always be there if any Constitutional Court would not pass an order and guidelines immediately against such actions.

It is very important to mention here that this issue also includes the hard earned reputation of Retired Judges who are in regular practice after retirement. If in past during performing his constitutional duty as a Judicial Officer, a Judge has ruled against some person A and then The Judge retires & started practicing as an Advocate and that person A having a grudge against that Judge or opposition Lawyer, sits on a powerful position in future then he can do such type of vengeful and harassing acts with the help of police, state etc.

Today, it is most necessary to protect the legal fraternity specially the practicing advocates and issue the immediate guidelines or create a legal framework like Advocates Protection Act etc. to protect advocates from such irresponsible and arbitrary acts of police and express the protection to all the Advocates including the retired Judges enjoying their retirements or practicing as Advocates/Designated Senior Advocates across India.

This Principle of Protection even applies for Government Pleaders under the Government service. In the case of “The Superintendent, High Court VS. The Registrar, Tamil Nadu Information Commission and M Sivaraj, 2010 (5) CTC 238” the Hon’ble Court held that even though the office of the public prosecutor is a public authority, the Right to Information Act 2005 only requires the public prosecutor to furnish such information, which is available to him or her and capable of being furnished, subject to section 8(1)(e) of the said Act. Here, the public prosecutor, bound by attorney-client privilege to not disclose information provided to it by the State of Tamil Nadu, directed a citizen seeking information to approach the State of Tamil Nadu directly. The Madras High Court, which was approached in this connection, held that: “Instead of asking the [Public Prosecutor], who holds such an information in the capacity of counsel, the petitioner is very well entitled to approach the client, ie, the State of Tamil Nadu directly for getting such information.”

In the case of “Superintendent & Remembrancer Of LEGAL AFFAIRS, WEST BENGAL VS Satyen Bhowmick And Ors on 15 January, 1981, Equivalent citations: 1981 AIR 917, 1981 SCR (2) 661” The Hon’ble Supreme Court in this case, which was actually related to Official Secrets Act, has emphasised on the protection provided to Attorney Client privilige and extended protection to the Advocate.

The Hon’ble Supreme Court has pronounced multiple Judgements which emphasises on Attorney-Client privilige and the recent raids in a practicing Advocate’s chamber while siezure/confiscating his computers and laptops are clear cut violations of Supreme Court Judgements in this regard and contradicts the view provided by Principle of Attorney-client privilege, on which a direction and protection is immediately needed from The Hon’ble Constitutional Courts.

The Communication or information sent by client to Attorney even if it is against the Government or any material sent by anyone to attorney via electronic means like email or whatsapp or text or even in hard copies which is objectionable in the eye of government or police but relevant for the Advocate for the case study including evidence and procedure, will that amounted to be a crime and shall not cover under Sections 126 to 129 of Indian Evidence Act? Can police confiscate Attorney’s laptop and Phone or case files and access his privileged conversation with clients and register a case against the Attorney? Can police declare my privileged conversation and advices to the client either in electronic format or telephonically as illegal and against the law if it is found against the view of State or Police who might also happen to be an opposite party in the Court?

In the situation mentioned in above Para, how would an Advocate practice freely, fairly and without fear?

The view expressed by Ramaswami, J., in case of Ayesha Bi VS. Peerkhan Sahib, AIR 1954 Mad 741., observed :-

“This rule (Section 126 Indian Evidence Act)    however covers only the private and confidential communications between the client and the lawyer and which cannot be disclosed either by means of direct question or elicited by means of indirect tactics. It does not however preclude the lawyer from replying to the opposite party who wants to proceed against him for stating that what all be did was in pursuance of the instructions given to him and not on his own volition. The rule under Section 126 Evidence Act does not require that a lawyer should vicariously make himself responsible for an offence which he never committed and in any event he will not be advancing his client’s cause by remaining mute since in that case it is a fair inference to draw that what he did was either in violation or in excess of the instructions given to him or that he and the client conspired to defame the complainant and in which event both the lawyer and the client would find themselves in the dock ranged as co-accused.”

That even on the liability of an Attorney regarding defamation in the case AIR 1925 Rang 345 (Z14); AIR 1927 Mad 379 (Z19) and AIR 1927 Cal 823 (Z18), it is keenly observed – When a complaint is made against an Advocate or Legal Practitioner for defamation in respect of a statement made in the course of a judicial proceeding, it is the duty of the Court to presume that the statement was made on instruction and in good faith and ior the protection of his client’s interest, and that unless circumstances clearly show that the statement complained of as defamatory was made wantonly or from malicious or private motive, the complaint should not be entertained”.

In a very important case of “Bakaulla Mollah v Debiruddi Mollah (1911-1912) 16 CWN 742 (Cal)”, It is held – “The protections for attorney-client communications belong to the client. Section 126 of the Evidence Act prohibits an attorney from disclosing attorney-client communications, without the express consent of the client. The client may release the attorney from his or her obligation to maintain secrecy. However, in the absence of express consent, the attorney has a duty to maintain secrecy. If the attorney fails in his or her duty and discloses confidential information, that information may be held inadmissible”.

So as per the law laid down in Bakulla Case (supra) in the present scenario the evidence or any record obtained by police or any agency by means of raid or forceful confiscation of laptops, phones or hard copy files neither can be used as evidence nor it would be admissible as evidence in the Court.

Even I as an Advocate contesting a case of a serious criminal and does the conversations and meetings with him and collects and recieves documents or proofs or evidence which as per the view of Government/Police is against their policies and view but is extremely important for my case and court proceedings then shall my chamber be raided or shall I be charged with penal sections for fighting the cause of my such client? Shall this be a new normal?

These are the some real issues which needed to be answered by the whole legal fraternity without getting affected with their political inclination and by the means of Constitutional Courts because My Lord the advocates also have the fundamental right to live dignified life under Article 21 of The Indian Constitution while fighting for the cause of a litigant whether he is a criminal, or the state or even a working Judge or a highly famous celebrity.

(Author: ILIN SARASWAT (Advocate), Supreme Court of India, New Delhi.)