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.”
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.
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.