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A fresh PIL has been filed in the Delhi High Court under Article 226 and 227 of the constitution seeking formulation of guidelines for framing of mandatory procedures/ guidelines to be followed by police/ investigating agencies in effecting search/ seizure operations on premises of advocates.

The respondents that have been impleaded in the case matter are State of NCT of Delhi Union of India through Ministry of Home Affairs, Bar Council of Delhi, Bar Council of India and Registrar General of the Delhi High Court.

The instant petition, filed in public interest states that in order to avoid impinging on valid attorney-client relationships, the investigating agencies ought to be required to take the least intrusive approach consistent with vigorous and effective law enforcement when evidence is sought from an advocate actively engaged in the practice of law.

The Petitioner, Nikhil Borwankar, is himself a practising advocate and has filed the present petition in his personal capacity, being aggrieved by the actions and omissions of the Respondents as aforementioned in effecting search and seizure operations at the premises of brother advocates.

“The present petition is filed at a time when there exists an atmosphere of deep mistrust and acrimony between advocates and law enforcement agencies with regard to recent searches executed against certain advocates representing accused persons and victims in controversial cases, giving rise to the perception of deliberate targeting of individuals and a collapse in the ability of the law and order machinery of the state to pursue justice objectively and without bias; which issue arises from a lack of safeguards and procedures to eliminate the perception of bias in the conduct of such exercises; and which is in the power of this Hon’ble Court to remedy.” – states the petition.

It is the case of the petitioner that the Indian Evidence Act, 1872, provides protection to professional communications and confidential communications with the legal advisors under Sections 126, 127, 128 and 129, whereby any person who seeks the services of an advocate who is registered under the Advocates Act, 1961, shall enjoy attorney-client privilege in terms of the said provisions.

“The Bar Council of India has framed the Bar Council of India Rules ("BCIR"), which stipulates certain standards of professional conduct and etiquette for all legal practitioners. Rules 7 and 15 of the BCI Rules state an advocate's duty towards the client:

 Rule 7: Not disclose the communications between the client and himself: An advocate should not by any means, directly or indirectly, disclose the communications made by his client to him. He also shall not disclose the advice 10 given by him in the proceedings. However, he is liable to disclose if it violates section 126 of the Indian Evidence Act 1872.

 Rule 15: An advocate should not misuse or take advantage of the confidence reposed in him by his client. Infringement of the above-mentioned rules would subject an advocate to disciplinary proceedings. Privileged communication between an attorney and a client are not admissible as evidence.”

The petitioner-advocate contends that appropriate procedures ought to be designed to ensure that privileged materials are not improperly viewed, seized or retained during the course of the search.

"While the procedures to be followed may be tailored to the facts of each case and the requirements and judicial preferences, in all cases the party conducting the search and seizure must not be connected with the investigation in any manner. Furthermore, seized articles, electronic records, documents etc. must directly be deposited with the jurisdictional Magistrate immediately on the conclusion of the search / seizure operation. The investigating officer must not have direct access to materials seized during any search, and must screen his requests for information through the jurisdictional Magistrate. The Magistrate must employ adequate precautions to ensure that the materials are reviewed for privilege claims and that any privileged documents are returned to the attorney from whom they were seized."

It is also stated in the petition that the proposed search procedures should be discussed prior to approval of any warrant, consistent with the circumstances of the investigation and the volume of materials seized. They are that

“Who will conduct the review, i.e., the jurisdictional magistrate. All documents/articles seized will be submitted directly to the jurisdictional Magistrate under sealed cover. Copies of all seized materials will be provided to the subject attorney (or a legal representative) in order that: a) disruption of the advocate’s/ law firm's operation is minimized; and b) the subject is afforded an opportunity to participate in the process of submitting disputed documents to the court by raising specific claims of privilege. 20.4. Appropriate arrangements have been made for storage and handling of electronic evidence and procedures developed for searching computer data (i.e., procedures which recognize the universal nature of computer seizure and are designed to avoid review of materials implicating the privilege of innocent clients).  All participating law enforcement agents be mandated to wear clear and visible identification and individual body cameras throughout the execution of the search warrant. The entire proceedings be mandatorily videographed with audio recording; which recording(s) be deposited with the jurisdictional Magistrate at the culmination of proceedings; and the aforesaid procedures/directions must be recorded by the Magistrate.”

In this context, the petitioner has prayed that Search warrants be issued against advocates only when investigating officer has obtained prior sanction from Director of Prosecutions (DoP) upon the submission of an appropriate standardised pro forma by investigating officer,
issued as determined by this Hon’ble Court, submitted through an officer not part of the investigation of the rank of Superintendent of Police, after due deliberation thereupon by the DoP.

“Therefore, in order to ensure there is no deliberate or inadvertent contravention of the fundamental right against self-incrimination enshrined in Article 20 (3) the said information should be submitted, after due deliberation, to the DoP through the Office of an officer equivalent in rank to Superintendent of Police, and who is not concerned with the subject investigation pursuant to which search warrant is sought.”