Senior Supreme Court advocate and civil rights promoter Sanjay Hegde has expressed alarm at the mention of a lawyer as a “key person” in the FIR registered against the NewsClick news site under the anti-terror law Unlawful Activities (Prevention) Act.
“The day that a lawyer can be deterred from taking a brief that he would have normally taken, that is the beginning of a police state,” Hegde told The Telegraph.
“This is a testing of the waters by the police. They have not yet named the lawyer as an accused. He has only been named as a ‘key person’ right now. In the absence of any sharp questions from the court, it is quite likely that further names will be added to the (list of) accused. It is for the Bar to defend the independence of the Bar, and the court to defend the independence of the court.”
Hegde added: “Lawyers must consider the possibility that they would become accused under the UAPA or the Prevention of Money Laundering Act, where bail is extremely difficult to get. Then lawyers would be deterred from taking up such cases.”
Scores of people associated with NewsClick were last week raided and questioned by the Delhi police, which is probing whether the website received illegal funds from Shanghai-based US investor Neville Roy Singham, described as an “active member” of the Communist Party of China, to “disrupt sovereignty and territorial integrity of India”.
The FIR alleges that along with three others, “Shri Gautam Bhatia (key person) conspired to create a Legal Community Network in India to campaign for and put up spirited defense of legal cases” on behalf of Chinese telecom firms in India.
Hegde, whose advocacy of civil liberties has been consistent and outspoken, said: “It has happened earlier, especially in the Bhima Koregaon (Elgaar Parishad case) where Surendra Gadling, Sudha Bharadwaj and other lawyers have been arrested. The legal community did not come out in their support.
“Now this has happened right in the heart of Delhi…. Even now, if the lawyers keep quiet then we might as well be subservient to a police state.”
Asked how he could justify his use of the term “police state”, Hegde said: “The police have been trying this at times but the Bar and the bench have stood together.”
He added: “Way back in the 1980s, a magistrate was pulled into a police station and a case registered against him in Nadiad (Gujarat). The SC (Supreme Court) came (down) heavily upon the police officials concerned. We keep hearing stories of policemen who have threatened to fix lawyers up in false cases. It is the same mentality, knowing they have already pulled in the journalists, they have tried to pull in the lawyers as well in the NewsClick case.”
In 1991, the Supreme Court had convicted several police officers, including inspector S.R. Sharma of Nadiad police station, for bringing chief judicial magistrate N.L. Patel to a police station, assaulting him, and then arresting him on trumped-up charges in 1989.
“The SC has time and again clarified that every person, no matter how despicable the allegations are against him, is entitled to a defence. It is the same SC that appointed senior advocate Raju Ramachandran for Ajmal Kasab’s defence. In the Nirbhaya case it appointed Raju Ramachandran and me,” Hegde said.
“Because courtroom justice cannot be accomplished by having a prosecutor alone. You need a well-trained, independent defender so that the court can be assured that every possible argument has been taken and considered.”
Hegde quoted legal luminary Thomas Erskine, who was dismissed from his position as attorney-general to the Prince of Wales in the late eighteenth century after defending one of America’s founders, Thomas Paine, who was later convicted in absentia of seditious libel for his book Rights of Man.
Erskine had said: “From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the Court where he daily sits to practise, from that moment the liberties of England are at an end.”
Britain learnt its lesson. It allowed the then Lahore High Court judge, Sir Achhru Ram, to defend his son, Lieutenant Colonel Prem Sahgal of the Indian National Army, who was being court-martialled in 1946 on the charge of treason for deserting the British Indian Army during the Second World War.
NewsClick has denied the charges against it, and the RBI had in a related case in 2021 given the website a clean chit over its receipt of funds.
The website's editor-in-chief Prabir Purkayastha and HR head Amit Chakraborty are in police custody. Pleas for relief from Purkayastha, Chakraborty and others are listed before Delhi High Court for Monday.
