Advocate Nikhil Borwankar
has filed a PIL
in Delhi High Court
seeking guidelines from the court to regulate the search and seizure operation’s happening at lawyer’s premises. Recent events happening across the country, like the assault on an advocate in Uttar Pradesh, point to the strained relations between the law enforcement agencies and the lawyer community.
The Petitioner alleged that in several recent incidents of search and seizure operations the lawyers were particularly targeted and that rights of these lawyers, as well as the confidentiality of their clients, are getting compromised. Privileged communications can be part of the material seized from the advocate's premises. During the search and even after that several private communications might be reaching over electronic means to the advocate's premises privacy of which are to be maintained. The Petitioner was aggrieved by the neglect and omissions of appropriate procedure that the police or investigation agencies exhibit in their conduct while searching the premises of “brother advocates”. He approached the court in the larger public interest involved in the issue. The Union of India through the Ministry of Home Affairs, State of NCT Delhi, Bar Council of India, Bar Council of Delhi and the Registrar General of the Delhi High Court are the respondents in the matter.
It was also pleaded that the guidelines also needed to be extended to searches happening at the legal wing of business where also sensitive information may be present. These issues are mentioned in the plea as:
"The present petition, filed in public interest, prays for the framing of mandatory procedures / guidelines to be followed by police / investigating agencies in effecting search / seizure operations on the premises of an advocate who is a suspect, subject or target, or an advocate who is related by blood or marriage to a suspect, or who is believed to be in possession of contraband or the proceeds or instrumentalities of a crime; and also, for search of an advocate who is a disinterested third party; whether with or without a warrant.”
The Division Bench of the High Court of Chief Justice DN Patel and Justice Jyoti Singh heard the case on 4th February 2021 without passing any orders. Additional Solicitor General Chetan Sharma argued that providing special guidelines for search and seizure operation in advocate's premises will be diverting attention from the guidelines for issue of search-warrant already given under Section 93 of the Code of Criminal Procedure (Cr. P.C), 1973. He also opposed the issue of notice in the matter. The Solicitor General argued against the use of the PIL route taken by the petitioner in approaching the court. PIL is usually used by a Public-Spirited Individual representing a group which is otherwise cut off from access to the legal system. In the present matter, the Petitioner is representing the advocate's community who have ready access to the judiciary. Nothing is preventing the aggrieved party from approaching the court directly. Further hearings on the matter have been posted for February 11, 2021.