What are privileged communications?

Privileged legal communications are confidential conversations that a witness cannot be

compelled to disclose, even though the communication is related to relevant facts. The

court cannot force a witness to disclose such interactions .

Communications during marriage

The communications between a husband and a wife have been given the
status of privileged communication under Section 122 of the Evidence Act. It
states that a married person:

 Shall not be compelled to disclose any communication made to them

during the marriage by their spouse or ex-spouse.
 They are not permitted to disclose anything without their spouse’s
or ex-spouse’s consent even if they are willing to.
In the case of S.J Choudhary v. The State,  the Court held that compelling
spouses to disclose their private communications is far worse than not
getting any information at all. Therefore, such communications must be
privileged.

The idea behind this privilege is that if testimonies are accepted from private
communications between spouses, such testimonies have the power to
destroy household peace among families and create a domestic broil. It will
hamper the mutual trust and confidence between the spouses and weaken
the marital bond.

Professional Privileges
Communications made between an attorney and his client is a privileged one,
and no one can compel either the advocate or his client to disclose anything
regarding the same.

Section 126 of the Act says that – no barrister, attorney, pleader or vakil is
permitted to disclose any communication made to him by his client during
the course and for the purpose of his employment without the consent of his
client.

The privilege under this Section is applicable to anyone who is registered as

a legal practitioner in India and falls under the aforementioned categories,
which simply means an advocate.
In the case of Maneka Gandhi v. Rani Jethmalani, the Court observed that
everyone has the right to a fair trial, and for obtaining such right one might
need to seek help from an attorney.

People have a hard time trusting their advocates and are often scared of
sharing the entire facts with them. They are under constant fear that their
advocate might expose them. With the fear of being exposed in mind, they
might not be able to express their problems properly and get proper legal
advice.

To ensure that advocates cannot expose their clients, the conversations

between them have been made privileged under this act.

In order for a conversation to be privileged under this section, the client-

attorney relationship must exist when the communication took place. Any
communication made with a lawyer before actually appointing him is not
protected under this Section.

Similar to Spousal Privileges, this privilege is not absolute. The Act itself
states that this privilege does not apply under some conditions.
Communication in furtherance of an illegal purpose could be one example of
the same. 

State Privileges
Affairs of the State
Section 123 of The Indian Evidence Act states that no person is allowed to
give any evidence that may be derived from any unpublished records of any
state affairs.

Unless with the permission of the officer-in-charge or the head officer at the
concerned department. Such an officer can give or withhold permissions
regarding the same as he thinks fit.

In the case of Duncan v. Cammell Laird & Co. Ltd,  it was held that in case
such a situation arises, the Court is bound to accept the decision of the
public-officer without any questions.

Further, the decision ruling out of such documents is entirely the decision of
the Judge. It is the Court who is in charge of a trial and not the executive.
The phrase “Affairs of State” has not been per se described in this section or
any other provision in this Act. So, it is not very practical for the judiciary to
come up with a single definition of the phrase.

Therefore, the Court must determine whether any documents fall under this
category, depending upon the facts and circumstances of every case.
However, it is clear that only the Court has the power to decide whether any
document can be classified as an ‘unpublished document of state affairs’.

Official Communications
Section 124 of the Evidence Act talks about official communications. It states
that a public officer can not be compelled to disclose any communication
made to him in official confidence if he believes that such disclosure could
harm the public interests.

While Section 123 talks about unpublished documents related to affairs of

the state, section 124 restrains the disclosure of all communication made in
an official capacity, be it in writing or not and it is immaterial whether they
relate to state affairs or not.

In the case of in re. Mantubhai Mehta,  it was held that it is upon the Court to
determine whether a document is a communication made to a public officer
in official confidence and if the document does not deal with any affairs of
the State, it may be taken up as evidence.

While determining whether the communication was made in official

confidence or not, only primary evidence must be used and the same cannot
be determined by secondary evidence, as laid down by the High Court of
Madras in Sivasankaram Pillai v. Agali Narayana Rao.

Secret Informants
Section 125 of the Evidence Act states that a Magistrate or a Police Officer
can not be compelled to reveal as to how they got any information regarding
the commission of a crime. 

The section further states that a Revenue Officer can not be compelled to
reveal as to how he got any information regarding the commission of any
offence against the public revenue.

For example:

Situation 1
  Harry is a Police Officer.
 Someone told Harry about riots that are being planned to happen
later today.
 Harry can not be compelled to tell where he received such
information.
Situation 2

 Ron is a Revenue Officer.

 Someone told him that Draco is hiding millions of rupees in black
money in his basement.
 Ron can not be compelled to tell as to where he received such
information.