Privileged Communication & Privacy: Scant Regard For The Laws In Actress Assault Case
The leaking and publication in media of the confidential communication between an attorney and his client, as in the case of Malayalam film star Dileep, is not only a blow to the privacy of a lawyer and his client, but also an infringement of the provisions of the Indian Evidence Act, the Advocates Act, 1961 and Chapter II, Part VI of the Bar Council of India Rules.
Dileep was arrested and arraigned as the 8th accused in the case pertaining to the abduction and sexual assault of an actress in a moving vehicle. The allegation against him is that he paid the main accused to abduct and assault the actress and record the visuals of the crime and hand over the visuals to him. Dileep is facing charges of criminal conspiracy and abetment of the crime.
The case saw several fluctuations when two public prosecutors who conducted the trial resigned and several witnesses produced by the prosecution turned hostile during the course of the trial. The Apex Court had turned down the Kerala Government's plea to extend the time for completion of the trial.
The case took an unexpected turn when a director from the Malayalam film industry made revelations that Dileep kept close contact with the main accused in the case and that Dileep received visuals of the crime after he came out on bail. The director further alleged that Dileep along with his close friends watched the visuals of the crime. Earlier, the Supreme Court had turned down a plea by Dileep to get a copy of the memory card containing the said visuals from the prosecution.
The investigation officer of the case requested the trial court for permission for further investigation on the revelations of the director and it was allowed. The petition filed by the actor challenging the further investigation conducted by the crime branch was dismissed by the Kerala High Court.
The latest among the intricacies of the case is the publication of telephonic discussions that Dileep and his brother had with Dileep's lawyers on how to face the examination by the prosecution during the trial. This was allegedly leaked to the media by the Kerala Police. The conversation is a classic example of privileged communication between a lawyer and his client.
A lawyer from Kerala High Court approached the Bar Council of Kerala seeking action against the police officials who allegedly leaked the privileged communication.
He also filed a petition under Section 340 read with Section 195(1) (b)(i) of CrPC before the Additional Special Sessions Court, Ernakulam, alleging that the privileged communication between the lawyer and his client was obtained by fraud and by using external devices in the lawyer's office. He claimed that leaking the privileged communication to the media and the public is intended to demoralize a designated Senior Advocate and his team of lawyers who represent the actor.
The lawyer has sought an enquiry into the incident and action against the police officials who are responsible for the felony. He has further prayed for a direction to the police officers to abstain from conducting an enquiry on the privileged communication between the lawyer and his client.
Both the media who published the privileged communication and police officials who allegedly leaked the communication are equally culpable and at fault.
A lawyer-client relationship is quite clearly accepted as a fiduciary relationship. A fiduciary relationship is where one person places some type of trust, confidence and reliance on another. The person who is delegated with trust and confidence has a fiduciary duty to act for the benefit and in the interest of the other party.
Section 2 of Chapter II of Part VI of the Bar Council of India Rules specifies the duties an advocate owes to his client. Rule 17 stipulates that an advocate shall not, directly or indirectly, commit a breach of the obligations imposed by Section 126 of the Indian Evidence Act. Section 126 to 129 of the Indian Evidence Act protects the rights of clients on communication made towards their lawyers during the course of a case from being disclosed.
Section 126 of the Indian Evidence Act prohibits an attorney from disclosing attorney-client communications, without the express consent of the client.
The privilege of keeping the confidentiality of communication and conversation made by a person in a fiduciary relationship is not limited to lawyers alone. It extends to religious preachers, doctors, psychologists and even journalists.
Rule 2.2 of Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 states that "confidence concerning individual or domestic life entrusted by patients to a physician and defects in the disposition or character of patients observed during medical attendance should never be revealed unless their revelation is required by laws of the State".
Section 15(2) of the Press Council Act, 1978 grants freedom to any newspaper, newspaper agency, editor or journalist to withhold the source of any news or information published by that newspaper or received or reported by that news agency, editor or journalist before Press Council of India.
In Justice Puttaswamy's case, the Apex Court has held that even the truthful information that breaches privacy may require protection, if it has no element of public interest and may therefore be a breach of privacy.
If that be the law, publicizing a protected privileged communication between an attorney and his client will amount to an infringement of the right to privacy.
The alleged act of the Police officials in leaking private communication between a lawyer and his client to the media is against the standards of conduct contained in the Kerala Government Servants Conduct Rules, 1960.
Yet another aspect of the publication of privileged communication in media is the 'media trial' that ensued based on it.
In Sahara India Real Estate Corp Ltd and Ors. v. SEBI and Anr. the Supreme Court opined that Supreme Court and High Courts have the power to prohibit temporarily, statements being made in the media which would prejudice or interfere with the administration of justice in a given case pending in the Supreme Court or the High Court or even in the subordinate courts.
In Siddhartha Vashisht v. State(NCT of Delhi) (2010)6SCC1, the Supreme Court deprecated the practice of publishing articles in print media in matters which are sub judice. The Court observed that presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial.
The Kerala High Court once even warned the police officers and media against the practice of leaking confession statements given by an accused to the police. The Court observed that the investigating officers (IOs) cannot divulge any materials collected during the probe to the public or media. The Court warned that the media will have to be prepared to face action in the event of a breach. The Court made the observations while considering the bail application of one Jolly Joseph, accused of killing six of her kin.
Another incident of trial by media which turned into a tragedy is the controversial Jasleen Kaur Harassment case. The media labelled the accused Sarvjeet by terms like "National Pervert" and "Delhi Ka Darinda". After four years, in 2019, the court acquitted Sarvjeet of all the charges and was held to be innocent. By that time he had lost his job and had found it hard to earn his livelihood due to the extensive media coverage which tarnished his reputation.
The constitutional right under Article 21 to a fair trial, in law, contains a valid restriction operating on the right to free speech under Article 19(1)(a).
The Kerala Police that allegedly leaked the privileged communication and the media that published it are equally at fault. While self-regulation purported to be done by the media is completely ineffective, there is no effective authority to police the Police. The judiciary needs to step in to set things right.
The author is an Advocate practising in the High Court of Kerala.
[The opinions expressed in this article are those of the author. Verdictum does not assume any responsibility or liability for the contents of the article.]