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, 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 requested the trial court for permission for further investigation based on these revelations, 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 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 the 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 the Code of Criminal Procedure 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 was intended to demoralize a designated Senior Advocate and his legal team representing the actor.

The lawyer sought an enquiry into the incident, action against the responsible police officials and a direction restraining the police from conducting any enquiry into privileged communication between a lawyer and a client.

Both the media that published the privileged communication and the police officials who allegedly leaked it are equally culpable and at fault.

Privileged Communication

A lawyer-client relationship is clearly recognised as a fiduciary relationship. A fiduciary relationship exists where one person places trust, confidence and reliance on another. The person entrusted with that confidence has a legal duty to act in the best interests of the other party.

Section 2 of Chapter II, Part VI of the Bar Council of India Rules specifies the duties an advocate owes to a 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. Sections 126 to 129 of the Indian Evidence Act protect communications made between a client and an advocate during the course of legal proceedings from disclosure.

Section 126 of the Indian Evidence Act specifically prohibits an advocate from disclosing attorney-client communications without the express consent of the client.

The privilege of confidentiality is not limited to lawyers. It also extends to doctors, psychologists, religious preachers and journalists in their respective professional relationships.

Rule 2.2 of the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 states that confidence concerning the personal or domestic life of a patient should never be revealed unless required by law.

Section 15(2) of the Press Council Act, 1978 grants journalists the right to withhold the source of news or information before the Press Council of India.

In Justice K.S. Puttaswamy v. Union of India, the Supreme Court held that even truthful information may deserve protection where its disclosure unnecessarily invades privacy without serving any genuine public interest.

If that is the settled legal position, publishing protected privileged communication between an advocate and a client amounts to an infringement of the fundamental right to privacy.

The alleged conduct of police officials in leaking private communication between a lawyer and his client is also contrary to the standards of conduct prescribed under the Kerala Government Servants Conduct Rules, 1960.

Media Trial

Another significant aspect arising from the publication of privileged communication is the phenomenon of media trial.

In Sahara India Real Estate Corporation Ltd. v. SEBI, the Supreme Court observed that constitutional courts possess the power to temporarily restrain media publications where such reporting is likely to prejudice or interfere with the administration of justice.

In Siddhartha Vashisht v. State (NCT of Delhi), the Supreme Court deprecated media reporting on matters that are sub judice and emphasised that the presumption of innocence should not be destroyed through media trials.

The Kerala High Court has also cautioned investigating officers against leaking confession statements to the media. The Court observed that materials collected during investigation cannot be divulged to the public and warned that both the investigating agency and the media may face legal consequences for such conduct.

Another example of trial by media is the widely discussed Jasleen Kaur harassment case. The accused, Sarvjeet Singh, was publicly labelled by sections of the media before trial. Four years later, he was acquitted of all charges, but by then he had already suffered severe damage to his reputation and livelihood.

The constitutional guarantee of a fair trial under Article 21 of the Constitution of India operates as a legitimate restriction on the freedom of speech and expression guaranteed under Article 19(1)(a).

The Kerala Police officials who allegedly leaked the privileged communication and the media organisations that published it are equally responsible. While media self-regulation has often proved ineffective, there is also a pressing need for effective accountability of investigative agencies. Judicial intervention remains essential to safeguard the rule of law, the right to privacy and the administration of justice.