INDIAN EVIDENCE ACT , 1872

INTERNAL ASSESSMENT

TOPIC : PRIVILEGED COMMUNICATION

UNDER INDIAN EVIDENCE ACT ; 1872

ANNANYA SINGH
LL. B (3years)
Section – A
A3256121144
INTRODUCTION
Privileged communication is a form of communication in which
two or more individuals are in a legally recognized relationship.
By this protected relationship, they are not bound to disclose any
details of such communication. To protect the sanctity of such
relationships, these communications may not be disclosed to any
third party or used as evidence in a court of law. The Indian
Evidence Act, 1872 recognizes the following as privileged
communications; Spousal communication (between husband and
wife), Professional communication (between advocate and client),
State communication (unpublished records of state affairs), etc.

The following are the pre-requisites for any communication to be

considered as a Privileged communication:

1) Communication should take place between individuals who

are in a protected legal relationship.

2) Communication should take place in private.

3) The information communicated cannot be disclosed to a

third party as the privileged status ends once it is disclosed.

COMMUNICATION BETWEEN HUSBAND AND WIFE

Under Section 122 of the Indian Evidence Act, 1872,

communications between a husband and a wife are considered
privileged communication. It is to be noted that this section
applies only to the communications made while the marriage is
subsisting and not before or after marriage.[1]

To preserve the secrecy between the spouses and any further

damage to the familial structure, the spouses are not allowed to
disclose any such information to the third party. Moreover, the
Court cannot compel either the husband or wife to testify against
each other. Under this section, any conversation between a
husband and wife is privileged whether such communication was
sensitive or confidential or not. [2] The Court further held that
such communication would refer only to verbal or written words
said by the spouse and not their actions.

In Bhalchandra Namdeo Shinde v. The State of

Maharashtra [3], the wife was called in to give testimony against
her husband who was being tried for allegedly committing a
murder. She was allowed to testify regarding his conduct and
actions but not the communications between them.

However, this privilege is not available when there is a dispute

between the married couples or when either of them is being
prosecuted for a crime committed against the other. If the party
who made the communication gives consent to its disclosure by
waiving this privilege, then such evidence can be testified in a
court of law.

In the case of Nawab Howladar v. Emperor [4], a widow

wanted to act as a witness and disclose communications made by
her deceased husband. The Court held that such communication
is entirely inadmissible because it’s impossible to obtain express
consent from a deceased person. The Court further clarified that
a widow cannot give her consent as a representative in the best
interest of her deceased husband.

In the case of Vishal Kaushik v. Family Court & Another, the

Court held that if the conversation between two spouses is
recorded by one of the spouses without the other spouse’s
knowledge, 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.
COMMUNICATION UNDER STATE PRIVILEGES

According to Section 123 of The Indian Evidence Act, 1872 no

person can give any evidence obtained from any unpublished
records of any state affairs. Without the permission of the officer-
in-charge or the head officer at the concerned department such
information cannot be disclosed. Such an officer can give or
withhold permission regarding the same as he thinks fit.

Additionally, if communication was made to an official of the

Indian government in “official confidence”; such communication
would also be privileged if the officer believes its disclosure to be
against the public interest. This section was introduced with the
interest of state security and public wellbeing. Any information
about the commission of an offense given to a police or revenue
officer is also privileged.

The phrase “Affairs of State” has not been described in this

section or any other provision in this Act. So, it is not practical for
the judiciary to come up with a single definition of the phrase.

In Debasis Sahu v. Nabeen Chandra Sahu, the Court held

that only the Income Tax Commissioner can determine whether
the production of certain documents relating to income-tax
returns would be protected under state privilege or not and not
even the court can answer this question. The Supreme Court has
further clarified that when the court requests for the production
of service records of a public servant doubted for malafide
activities, the state cannot claim such privileges.[5]

The Supreme Court has also opined that if non-disclosure of some

information would have larger negative impacts on public interest
than its disclosure, then such communication may not be
protected under the state privileges.[6]

Under Section 124 of the Evidence Act, 1872 the communications

made to a public officer may be held in official confidence
because such official communications could hurt the public
interests if exposed. The Court has to decide whether such official
communications made to a public officer are in legitimate
certainty or not. If it does not involve any issues of the State or
hurt the public interests, it might be taken as evidence. (In re
Mantubhai Mehta)

Therefore, 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’ depending upon the facts and
circumstances of every case.

COMMUNICATION BETWEEN LAWYER AND CLIENT

Any communication between an attorney and his client is

protected and remains confidential. This is commonly called
professional communication. Sections 126-129 of the Indian
Evidence Act, 1872 deal with privileged communication in a
professional relationship. A registered legal practitioner in India is
not allowed to reveal such classified information that the client
had disclosed to him or any advice that the lawyer had given to
his client.

This principle facilitates advocates to provide the best legal advice

possible. The Court has observed that everyone has the right to a
fair trial and for obtaining such right one can seek the help of an
advocate.[7]

In the case of P R Ramakrishnan v. Subbaramma Sastrigal,

Court held that as per Section129 of the Evidence Act both the
client as well as the attorney isn’t under any obligation to convey
the privileged communication to any third person. Only such
communication can be considered privileged if the communication
happened during the existence of the legal advisor-advisee
relationship.

This also means that no privilege is attached to communication to

an attorney consulted as a friend. This obligation continues even
after employment has ceased. This section also states that the
lawyer cannot disclose any contents of the document that he
became familiar with during his employment. Even after the
termination of employment, he is not expected to disclose such
information to ensure no harm to his clients.

The privilege under Section 126 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 purposes.

In the case of Karamjit Singh v. State, 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 Municipal Corporation of Greater Bombay v. Vijay Metal

Works [8], Court held that a salaried employee who advises his
employer on all legal matters would get the same protection as
others, viz., Barrister, Attorney, Pleader or Vakil, under Section
126 and 129 of Indian Evidence Act 1872.

In India, the Attorney-Client privilege is governed by legal

provisions under The Indian Evidence Act, 1872, Bar Council of
India Rules and Advocates Act, 1961. Bar Council of India (BCI)
has some rules on professional standards which every advocate
has to abide by. It is believed that an advocate owes a duty
towards the Court, client, their opponent, and other advocates.
Attorney-client privilege is further strengthened by these rules.
OTHER PRIVILEGED COMMUNICATIONS

-DOCTORS AND PSYCHOLOGISTS

All information’s exchanged between a doctor and his patient is

protected. This is also termed doctor-patient confidentiality. The
Medical Council of India can revoke the license of a doctor who
breaches such confidentiality.

According to Article 21 of the Indian Constitution, any personal

information of the patient is part of the right to privacy. Hence,
such information is strictly confidential and no doctor is bound to
reveal it to any third party.

The Medical Council (Professional Conduct, Etiquettes and Ethics)

Regulations, 2002 specifically protects the rights of the
patients.[9] No registered medical practitioner is allowed to
disclose any information about a patient under rule 7.14 of the
regulations. But such information must have been obtained
during the exercise of the medical profession.

However, there are certain exceptions to this principle as well. A

doctor must disclose the information of his patient when he is
called upon by a court of law under the orders of the Presiding
Judge. A registered medical practitioner is bound to inform the
concerned public health authorities when it’s a case of highly
contagious diseases because there is a serious risk to the
community at large.

In the landmark judgment of Mr. X v. Hospital Z, the Supreme

Court held that public interest can override the right to doctor-
patient confidentiality if it poses a great threat to any person in
case of its non-disclosure. In this given case, it was held
necessary to disclose to the wife that the husband has HIV-AIDS.
-RELIGIOUS AND SPIRITUAL ADVISORS

It’s also called a priest-penitent privilege. A penitent is a person

who confesses their sins to a priest and pleads for forgiveness
from the Holy Spirit. In a Roman Catholic Church, the priest is not
permitted to disclose the details of such confessions.

Hence, we can say that these communications are considered

privileged communication. A priest could be denounced for
disclosing the details of a confession.[10] This priest and penitent
relationship are recognized in the United States and several other
countries but it’s not given any privilege under Indian law.

-SECRET INFORMANTS

According to Section 125 of the Indian Evidence Act, 1872, no

Magistrate or a Police Officer can be compelled to reveal the
source of information they had received about the commission of
a crime. Similarly, as per Section 125, no Revenue Officer can be
compelled to reveal the source of information regarding the
commission of any offense against the public revenue.

Thus, we can say that this section was mainly introduced for the
protection of the sources because the sources might get
embarrassed and may refuse to give such information if the
disclosure is made mandatory.

-JOURNALISTS

It’s also called Reporters Privilege or Press-Source Protection

Privilege. This privileged communication secures journalists from
uncovering their sources. In India, this privilege is covered under
The Press Council of India Act, 1978.

According to Section 15(2) of The Press Council of India Act,

1978, no manager, writer or news organization can be compelled
to disclose the source of any news published in their newspaper,
magazine or media by the news office, editor or journalist.
CONCLUSION

Privileged communication refers to confidential interactions

between legally protected people. One such communication is
known to a third person; it loses its privilege. According to the
rule of privileged communication, a court of law cannot ask an
individual in this protected relationship to disclose any details of
this communication.

The foundation of this principle is to guard the trust that a client

re-poses in an attorney, patient in a doctor and spouses in each
other. The law also provides for punishment in case of its
violation. However, this privilege is not absolute as there are
certain exceptions as well. It may be violated in various cases
that have either been specified in the statute itself or various
instances by the courts in Indian Jurisprudence.
SOURCES (notes)

[1] M.C. Verghese v. T.J. Poonan and Anr. On 13 November,

1968; 1970 AIR 1876, 1969 SCR (2) 692

[2] Emperor v. Ramachandra Shankar Shet Uravane on 12

October 1932 (1933) 35 BOMLR 174

[3] 2003 (2) ALD Cri 84; 2003 BomCR Cri; 2003 (2) MhLj 580

[4] (1913) ILR 40 Cal 891

[5] State of U.P. v. Chandra Mohan Nigam, (1977) 4 SCC 345

[6] R.K. Jain v. Union of India, AIR 1993 SC 1769

[7] Menaka Sanjay Gandhi v. Ram Jethmalani AIR 1979 SC 468

[8] AIR 1982 Bom 6

[9] Rule 7.14, The Indian Medical Council (Professional Conduct,

Etiquettes and Ethics) Regulations,
2002;https://www.mciindia.org/documents/rulesAndRegulations/
Ethics%20Regulations-2002.pdf

[10] F. Robert Radel, II & Andrew A. Labbe, ‘The Clergy-Penitent

Privilege: An Overview’ https://www.gspalaw.com/the-clergy-
penitent-privilege-an-overview/
REFERENCES

1. Ratanlal&Dhirajlal: Law of Evidence (PB), 27th ed; THE LAW

OF EVIDENCE; S. 121 – 132 of The Indian Evidence Act, 1872

2. https://lawtimesjournal.in/what-does-privileged-
communication-mean/#_edn8

3. https://www.legalbites.in/privileged-communication/

4. https://www.google.com/amp/s/legalsarcasm.com/legal-
notes/law-of-evidence-what-is-a-privileged-
communication/%3famp.