2nd G.C.T.

NAME=MOHAMMAD DANIYAL SIRAJ

Roll no =18ballb55
Eroll no. = gl0749
Subject = law of evidence
Topic = privileged communication

Introduction
Under the Indian Evidnece Act the concept of privileged communication between various protected
relationships, were given where nondisclosure is condition such relation between advocate and
client, husband wife etc.

According to the Black’s Law Dictionary, Privileged Communications are “those statements made
by a certain person within a protected relationship…which the law protects from forced disclosure
on the witness stand…”1

Definition

Privileged Communication refers to the confidential conversations or interactions between two

parties who are in a legally recognized protected relationship. The information cannot be leaked to
any third party, not even in the Court. Law can never force an individual or a corporation to disclose
the contents of privileged communications.

Illustration:

• ‘A’, the husband and ‘B’, the wife are undergoing a rough patch in their matrimonial life.
• ‘A’ decides to transfer all his property to C via his will and only his lawyer knows about this.
If B ever asks A’s lawyer to disclose it, the lawyer can’t tell as it is a privileged
communication.
• He can tell only if A gives consent to do so or A himself discloses to a third party.

Professional communication between a lawyer and a client

It is a statutory obligation under Section 126 of the Indian Evidence Act for an advocate to not
disclose without the consent of the client any-

1. communication to him by the client or vice versa,

2. contents or conditions of a document, and 3. the advice given to the
client,

which was obtained or given in the course and for the ‘purpose of such employment’. This phrase
means that no privilege attaches to communication to an attorney consulted as a friend. This
1 Priviledged Communication,India, available at:https://www.iblogpleaders(last visited May 04,2021)
2
Indian Evidence Act,1872(Section 26)
obligation continues even after employment has ceased. This encapsulates the rule of “once
privileged always privileged”.

The privilege under Section 1262 is subject to certain exceptions i.e. under the following conditions
communication can be disclosed:

1. When the communication was made in furtherance of an illegal purpose;

2. When the attorney gets to know that a crime or fraud has been committed since
employment began;
3. When the client gives consent;
4. When the information falls into the hands of a third party;

5. When a lawyer sues the client for professional purpose.

Section 127 of the Evidence Act states that Section 126 applies to-

• Interpreters
• Clerks or servants of barristers
• Pleaders
• Attorneys  Vakils

In the case of Court in its own motion vs. State, Delhi High Court answered the question, whether
a child victim should be permitted to waive the privilege of the counsellor? Court held that it can be
done if the child does it knowingly and voluntarily and waiver is in the interest of the child provided
the reasons for a waiver should be recorded in writing in the order.

In the case of Karamjit Singh v. State,2 the Court held that one cannot ask for disclosure of any
professional communication and documents of attorney and client under the Right to Information.

In the case of Board Of Directors, Y.M.C.A. and v. R.H. Niblett,4 the Court observed that in a
defamation case where the evidence in question is proved to be privileged then the burden to prove
not just normal malice but express malice lies on the plaintiff. The Court stated that if the occasion is
privileged then the publication by a person ‘exercising the privilege to third persons’ if it is
reasonable and in the ordinary course of business, where communication wasn’t possible except in
the presence of uninterested people, it is protected. The privilege can’t be destroyed merely because
third-persons(clerks, typists or copyists, etc.) do not have a legitimate interest in the subject matter.

Privilege can not be waived by voluntary evidence

Section 128 states that if the client himself presents some evidence regarding privileged
communication, it doesn’t amount to a waiver of privilege. Summoning the lawyer as a witness by
the client doesn’t amount to consent to disclose but when the client himself asks questions pertaining
to the confidential communication then it amounts to an implied waiver of privilege.

Confidential communications with legal advisers

2 AIR 2000 SC 3467

4
AIR 1957 ALL219
This section states that no one can be compelled to disclose privileged communication between a
client and an attorney. If a client offers to be a witness then the Court can extract from him any
communication as it deems necessary. Section 1293 prohibits the client from disclosing, unlike
Section 126 which prohibits a lawyer. It lifts the restrictions imposed under Section126 partially, it
acts as a counterpart of Section126 of the Evidence Act.

Court held in the case of P R Ramakrishnan v. Subbaramma Sastrigal 4 that as per Section129 of
the Evidence Act both the client as well as the attorney aren’t under any obligation to spell the
privilege communication to any third person.

Privileged communication under the Companies Act, 1956

Usually, the job agreement and bylaws of a company make it obligatory to keep communications
confidential. Section 251 of the Companies Act, 1956 (now Section 227 of the Companies Act,
2013) states that a legal adviser, a banker of any company, a corporate body should not be required
to disclose any privileged communication to the Central government, inspector or registrar
appointed by the Central government.

The Rules on Professional Standards

Bar Council of India(BCI) has some rules on professional standards which every advocate has to
abide by, these are mentioned in Chapter II, Part VI of BCI. Attorney-client privilege is further
strengthened by these rules. It is believed that an advocate owes a duty towards the Court, client,
their opponent, and other advocates. The power to make these rules is inherited by the BCI under
Section 49(1)(c) of Advocates Act, 1961.

Rule 7 & 15

Part VI, Chapter II, Section II of Bar Council of India Rules(BCIR) mentions the Rules on an
advocate’s duty towards the client.

Rule 7 of it provides that no advocate shall commit a direct or indirect breach of obligations under
Section 126 of the Evidence Act. Thus, violating it would amount to a violation of BCI rules.

Rule 15 prohibits an advocate from misusing or taking advantage of the client’s confidence reposed
in him.

An advocate would be subject to disciplinary proceedings in case of breach of the above-mentioned

rules.

Privileged communication between a married couple

Trust between the spouses is the foundation of a marriage. It is very crucial to protect the privacy of
the confidential communication between the spouses during the marital relationship to maintain the
peace of families. Both the spouses are obliged under Section 122 of the Indian Evidence Act not to
disclose any communication which has happened during their marriage. It is important to note that
the protection applies to all sorts of communications between husband and wife.

3 Indian Evidence Act ,1872( section 128)

4 AIR 1988 Ker 18
Exceptions to this clause

• Acts or conducts apart from the communication can be disclosed.

In the case of Ram Bharose v. State of U.P5., the husband was accused of theft of jewellery which
he had gifted to her wife. He told his wife that he had obtained it from her previous home. The wife
in the Court discloses the conduct of the accused that he had seen her husband coming down from
the roof and after taking a bath gifted it to her. Court held that the wife could testify as to the
conduct but not the conversation.

• If the party who made the communication consents to its disclosure i.e. waives the privilege,
then the evidence of privileged communication can be given.
• In Suits or criminal proceedings between the two spouses.
• Communications made before marriage or after dissolution of marriage.

The landmark judgement of Nagraj Alias Kumar v. State of karnataka,8 the Court observed that
even though Section 120 of the Evidence Act permits a spouse to tender evidence against the other
spouse except in suits or criminal proceedings between the two spouses. Section122 makes it clear
that privilege extends to all communications, the said communication does not need to be
confidential. Only spouses who made the communication can waive it and not the witness as the
privilege doesn’t extend to them. Even the Court cannot permit the witness to disclose even if he/she
is willing to share. It is incumbent to ask for the consent of the party against who the evidence is
being given under Section122 of the Evidence Act.

In another landmark case of M.C. Verghese Vs. T.J. Poonan and Anr., the Supreme Court held
that only communications that took place during the marriage are protected under the privilege
mentioned in Section 122 of the Evidence Act. The protection continues even after the dissolution of
marriage or the death of one of the spouses. Communication before the marriage or after the
dissolution of a marriage doesn’t come under the purview of sec 122.

Privileged communication between a doctor and the patient

In India, The Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations,
2002 regulate the conduct of medical professionals.

Rule 7.14 of these regulations provides that the secrets of a patient that the registered medical
practitioner has learned during the exercise of his/her profession cannot be disclosed. Few
exceptions to this rule are:

1. When a presiding judge in a court orders to disclose the privileged communication

2. When there exists a serious risk to a specific person and/or community
3. In case of a notifiable disease concerned public authorities should be immediately
informed

Rule 7.17 states that “A registered medical practitioner shall not publish photographs or case reports
of his / her patients without their permission, in any medical or other journal in a manner by which

5 AIR 1954 Sc 704

their identity could be made out.” It is to be noted that if the identity is not to be disclosed then no
consent is needed.

Chapter 8 of the Rules states that if any medical practitioner violates the Physician-patient privilege
then the Medical Council of India(MCI) can take any action as it deems fit against the registered
medical practitioner in question, once he/she is held guilty after the inquiry. MCI can also “direct the
removal altogether or for a specified period”.

8
1996 KAR 2
The power to formulate these rules is enshrined in MCI under Section 20A of Indian Medical
Council Act.

In the landmark judgment of Mr. X Vs. Hospital Z, the Supreme Court held that a rule of
confidentiality has certain exceptions, one of which is the disclosure of privileged communication
between the doctor and client if it poses a serious risk to a person in case of non-disclosure. Public
interest can override the right to confidentiality. For instance, in the given case it was necessary to
disclose to the wife that the husband has HIV-AIDS.

Informers

Section 125 of the Evidence Act deals with information as to the commission of offences. The
section states that,

1. No Magistrate or Police Officer can be asked to reveal the source of his information as to
the commission of an offence;
2. No Revenue Officer will be compelled to reveal the source of his information as to the
commission of an offence against public revenue.

The privilege granted in the section protects the source of information. This section ensures that the
identity of informers is protected so that nobody can harm them.

Journalists

The privileged communication which protects journalists is called Reporter’s Privilege or

PressSource Protection Privilege. This privilege protects journalists from revealing their sources. In
India, the position of the courts on this issue is not clear.

In India, the source protection privilege is granted under the The Press Council Of India Act, 1978.

Section 15(1) of the Act states the general powers of the Press Council of India and section 15(2)
states that, even though the Press Council of India has been granted powers, it cannot compel any
newspaper, news agency, editor or journalist to disclose the source of any news or information
published by that newspaper or received or reported by the news agency, editor or journalist.

Right to privacy and Privileged Communication

Article 21 6of the Constitution of India states, “No person shall be deprived of his life or personal
liberty except according to the procedure established by law”, it has an encyclopedic ambit. It covers
all aspects of life, one of which is Privacy. Right to privacy isn’t expressly written in the Indian
Constitution but overtime judicial proceedings have shown that it comes under the ambit of Article
21.

The law safeguards the right to privacy by protecting from the disclosure of privileged
communication. It takes away the evidentiary value of confidential communication.

Section 122 of the Indian Evidence Act interdicts married couples from disclosing any confidential
communication which happens during the marriage. Similarly, sections 126 to 129 of the Evidence
Act deal with attorney-client privilege. The concept of privileged communication strengthens the
fundamental right to privacy.

Moreover, laws like Rule 7 and 15 of the BCI Rules on Professional Standards for attorneys and
Rule 4.14 and 4.17 of The Indian Medical Council (Professional Conduct, Etiquettes and Ethics)
Regulations, 2002 for medical practitioners bars the disclosure of privileged communication.
Violation of any of these laws is an automatic violation of the right to privacy under Article 21 of
the Indian Constitution.

In the case of Vishal Kaushik v. Family Court,7 the Court held that if the conversation between
two spouses is recorded by one of the spouses without the knowledge of the other spouse, that
evidence will not be admissible in the Court. In fact, this act will amount to a breach of privacy
under Article 21 of the Indian Constitution and the spouse who has recorded will be held liable.

Privileges of General Application

Types

Other forms of privilege include,

1. Privilege against Self Incrimination: No one can be compelled to be a witness against

himself. A person cannot be forced to be a witness and testify against himself in court.
2. Public Interest Privilege: It states that a document should not be disclosed if it harms the
public interest.
3. State Privilege: Section 123 of the Evidence Act states that no one can give evidence in
court regarding confidential documents of the state.

Difference between Indian law and English Law

Under English law, there are two kinds of privilege granted under Attorney Client relationship, they
are:

Legal advice privilege: It protects all the information exchanged between attorney and the client for
the purpose of seeking legal advice. This is similar to section 126 of the Evidence Act.

6 Indian Constitution article 21

7 (2016) 5 RCR (cri) 852
Litigation Privilege: This privilege includes all the documents that are exchanged between the
lawyer and his client. This is similar to sections 127 – 129 of the Evidence Act.

Exceptions to this rule

The only difference between between the two lies in the exceptions, under Indian Law
communication with an illegal purpose is not granted privilege whereas in English law, the purpose
has to be criminal in nature, not merely illegal.

Can a person reveal privileged CommuniCations without the other person’s consent?

In privileged communications, the privilege vests with the person disclosing the information. The
recipient of such information cannot disclose it to third parties without the consent of the person
disclosing the information.

Privileged communication in other countries

In both the USA and UK, privilege is a fundamental right which is used as a safeguard tool by the
individuals and corporations from disclosing any privileged communication.

United Kingdom (UK)

Broadly there are two types of privileges in the UK to protect communication between lawyer and
client:

1. Legal advice privilege- This includes only written or oral confidential communications
between a lawyer and a client that provide, seek or receive legal advice. The term lawyer
here doesn’t include tax advisors or accountants but it does include in-house counsel.
2. Litigation privilege- This includes written or oral confidential communications between a
lawyer and a client or either of them and a third party that provides, seeks or receives legal
advice in connection with the proceedings of a case.

A lawyer can’t waive the privilege without the consent of the client.

Legal professional privilege can be waived in the following cases-

• If the document loses its confidentiality

• The document came into being for a criminal or fraudulent scheme

Unlike in India where an act of illegal nature can be disclosed, in the UK the act must be of criminal
nature and not merely of illegal nature.

United States of America (USA)

There are three areas of law that are covered under the Legal professional privilege-

1. Rule of Confidentiality- without the consent of the client or other applicable exceptions, a
lawyer can’t disclose the confidential communication that occurred between him and the
client or client’s representative.
 2. Attorney-client privilege- this rule prevents disclosure of confidential communication
made in furtherance of obtaining legal services specifically judicial proceedings.
3. Work Product Doctrine- it protects the disclosure by the opposing counsel of material that
has been prepared in anticipation of litigation.

The privilege can be waived under various circumstances, there are no specific terms. Example- in
case of intentional or unintentional waiver of privilege.8

Singapore

Legal privilege is of two types-

1. Legal advice privilege- This includes only confidential communications between a lawyer
and a client or lawyer and client’s agent that provide, seek or receive legal advice. This
doesn’t include communication between a lawyer and a third party unless the third party is
acting as a client’s agent.
2. Litigation privilege- This includes confidential communication between a lawyer and the
client and also a lawyer and a third party, even if the third party isn’t acting as a client’s
agent that provides, seeks or receives legal advice where there is a legal prospect of
litigation.

It does include communication with the in-house counsel also.

Australia

Legal professional privilege is derived from legislation and common law. Privileged
communications between a lawyer or lawyers and the client for the purpose of providing legal
advice or professional legal services regarding a Court proceeding cannot be disclosed. It includes
documents also.

If the client acts in an inconsistent manner with confidentiality, it leads to an implied waiver of the
privilege.

In case of global privilege, the complexity increases as in one jurisdiction it may be granted
privilege protection whereas in another jurisdiction it may not be granted privilege.

Conclusion

Various legislations oblige the parties of a protected relationship (attorney-client, doctor-patient,

husband-wife) to adhere to the rule of privileged communication. The foundation of this is to guard
the trust that a client re-poses in an attorney, patient in a doctor and spouses in each other. However,
the privilege is not absolute in nature, it is subjected to certain exceptions. The law also provides for
punishment in case of its violation.9

8 Priviledged Communication,India, available at:https://www.iblogpleaders(last visited May 04,2021)

9 Priviledged Communication,India, available at:https://www.iblogpleaders(last visited May 04,2021)

WEBLOGRAPHY
1.www.legalservicesindia.com

2.blogipleaders.in

3.https://ccsuniversity.ac.in

4.https://legalsarcasm.com