On Thursday, the Delhi Police raided the office of lawyer Mehmood Pracha, who is representing several accused persons in cases related to the February communal riots in the national capital that left 53 dead and affected the lives of thousands more.

In August, the Delhi Police had filed a case against Pracha for tutoring victims to make false statements. They also accused him of forging documents.

The raid prompted angry reactions from many quarters. Lawyers, especially, noted that this was a violation of attorney-client privilege. This relates to a “client’s right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney”.

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.

What is more, 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.

In particular, a case that came up during the investigation of Rajiv Gandhi’s assasination in 1991 caused a huge furore.

Violating the Constitution

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.

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.