INDEX

1. INTRODUCTION.

1.1- What qualifies as Privileged Communication?

1.2- Why Privileged Communications are not admissible?

2.PRIVILEGES ASSOCIATED WITH LEGAL ADVICE OR CURRENT OR

CONTEMPLATED LITIGATION.

2.1-Exceptions

3.VARIOUS FORMS OF PRIVILEGED COMMNICATIONS.

3.1- Spousal Communications.

3.2- Professional Communications.
3.3- State Privileged.
4. CONCLUSION.

5. BIBLIOGRAPHY.
1-INTRODUCTION:
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. When two individuals
enter into a legally recognized relationship, all communication that takes place between them
is protected. This communication is known as privileged communication. It is called so
because whatever information that is disclosed in this kind of setting is protected i.e. the
courts cannot force the individual to disclose the details of such communication.

Privileged communication is the communication between individuals who are in a protected

relationship by the virtue of which, the details of their communication cannot be disclosed.
Privileged communication exists to protect the disclosure of information during the
subsistence of confidential or protected relationships. These communications are such that
they may not be used as evidence in a court of law against the persons communicating due to
the specific nature of their relationship. The privileged Communication of a witness implies
the right of a witness to hold back evidence in certain matters. The Indian Evidence Act
provides certain circumstances wherein certain persons cannot be compelled to testify i.e. to
provide evidence. The right has been provided on the basis of public policy and
convenience1.

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.

1.1-What qualifies as Privileged Communication?

To qualify as privileged communication, there are certain conditions that need to be fulfilled.
These are:

1. The communication should take place between individuals who are in a protected
relationship, and
2. The communication should happen in a private setting, and

1
https://blog.ipleaders.in/privileged-communications-under-evidence-act-1872/ visited on 26.7.22 at 10.00 am.
3. The information communicated should not be disclosed to a third party.
1.2- Why Privileged Communications are not admissible?

Privileged Communications are made in a private setting and are protected from disclosure to
third parties. The rule of privileged communication exists because privacy of confidential
relationships is valued in the society. This is why they are not admissible as evidence.

2-PRIVILEGES ASSOCIATED WITH LEGAL ADVICE OR CURRENT

OR CONTEMPLATED LITIGATION:

All communications that takes place between an attorney and his client comes under the
ambit of privileged communication.
The Attorney-Client privilege in India is governed by provisions under,

1. The Evidence Act, 1872, and

2. Bar Council of India Rules, and
3. Advocates Act, 1961.
Section 126 to 129 of the Indian Evidence Act deal with privileged communication
associated with professional relationship between an attorney and his client.
This privilege is necessary because if the client cannot trust his lawyer with the information,
then he will not disclose all the facts of his case and the lawyer will not be able to defend the
client in court.

Section 126 states that no legal advisor or a lawyer can be permitted to disclose the
confidential information that,

1. The client revealed to him, or

2. Any advice that the lawyer gave to his client.
It also states that, the lawyer cannot disclose any contents of the documents that he became
familiar with during the course of his employment. This privilege exists even after the
termination of employment.
2.1-Exceptions:
There are certain exceptions to the above stated rule. These are,

1. Any communication which takes place in furtherance of any illegal purpose; Illustration:
“A”, a lawyer has been asked by his client, “B” to forge some documents so that he can be
granted possession of a property. This communication is made in furtherance of an illegal
purpose, and thus is not protected from disclosure.

1.Any fact observed by a lawyer in the course of his employment, showing that any crime or
fraud has been committed by the client since the commencement of his employment.
2.Express consent of the client. If the client himself gives permission to the lawyer to disclose
the information, then that information will not be protected from disclosure.
Only those communications which are made with the purpose of getting professional advice
from the lawyer are considered as protected. This privilege exists only when both are in a
confidential relationship and not before that.
Section 127 broadens the scope of the privilege and extends it to the servants, helpers,
interpreters and clerks of the lawyer.
Section 128 is the continuation of the privilege, it protects the legal advisor or the lawyer
from disclosing any information which comes under the ambit of section 126, unless the
client himself calls the legal adviser as a witness.
Section 129 of the Act states that the client is protected from disclosing any confidential
information unless he himself offers to be a witness.
Rules about Advocate’s duty towards his client are mentioned in The Rules on Professional
Standards, Part VI, Chapter II, Rule 7 & 15 of the Bar Council of India Rules.
Rule 7 states that no Advocate will disclose, directly or indirectly, any communication which
took place between him and his client.
Rule 15 states that the Advocate should not take advantage of the confidence that his client
has reposed on him 2.

3-VARIOUS FORMS OF PRIVILEGED COMMNICATIONS:

The Indian Evidence Act recognizes various forms of privileged communication, namely:

2
https://lawcorner.in/privileged-communication-under-indian-evidence-act-1872/ visited on 26.7.22 at 11.05 am
3.1- Spousal Communication
3.2- Professional Communication
3.3- State Communication

There may not be any disclosure of any exchange of information between parties in such a
relationship without consent of the other party to the court or any other person. This protects
the sanctity of these protected relationships.

(3.1)- Spousal Communications:

Spousal communication refers to the communication between a man and his wife. Any
communication between a married couple is considered confidential. Either party is
disallowed from divulging any such information to any third party made within the confines
of a valid, existing marriage. The origin of this principle may be traced back to English
common law which formalized it in the English Evidence (Amendment) Act, 1853. This
concept has been

characterized in Indian Jurisprudence as the embodiment of the “expectation” of secrecy

between spouses and the damage such disclosure may have upon the familial structure.

Section 122 however, must be interpreted narrowly because it reduces the scope of
admissibility of evidence which may be crucial to the case of the prosecution. This may be
seen as the rationale for the interpretation of section 122 by Vagyani, J. to mean that only the
words said by a spouse can be treated as privileged communication. If in case a spouse is
acting or behaving in a particular manner, his activities, deviation from any regular practice
etc. are not covered under section 122. This was affirmed when a wife was called on to give
testimony against her husband in a murder case wherein, she was allowed to testify as to his
conduct but not to the conversation that ensued between the spouses.
Additionally, the Supreme Court has also clarified that any and all communication between
spouses must remain confidential if the communication happened during the subsistence of
the marriage. Whilst determining the admissibility of the evidence brought by the way of
spousal testimony, the date of the communication must be the deciding parameter and not the
date when the communication was sought by the court. In the event that said communication
happened during the marriage but now the marriage has subsided, the communication would
still be privileged. Notably, the exception to the provisions of section 122 is when the dispute
is between the married parties. The parties may be allowed to bring communication between
them as evidence.
Marriage is a protected relationship. Thus, communication that takes place between a married
couple is privileged. This protection survives even after the marriage dissolves. The court
cannot compel the husband or wife to disclose information that was exchanged during the
course of marriage. Husband or wife cannot be forced to testify against each other.

Section 122 of the Evidence Act deals with communication during marriage. It states that no
person (either husband or wife) can be compelled or permitted to disclose the communication
that happened with the person with whom he is married or has been married 3.

Exceptions to this clause:

(a)- Acts or conducts apart from the communication can be disclosed.

In the case of Ram Bharose v. State of U.P 4., 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.

(b)-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.

(d)-Communications made before marriage or after dissolution of marriage.

The landmark judgement of Nagraj Alias Kumar v. State of Karnataka5, the Court observed
that even though Section 120 of the Evidence Act permits a spouse to tender evidence against

3
https://www.legalserviceindia.com/legal/article-6213-attorney-client-privilege-under-indian-evidence-act-
1872.html visited on 27.7.22 at 9.00pm
4
AIR 1954 SC 704
5
1996 CriLJ 2901
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. Varghese Vs. T.J. Poonam and Anr6., 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.

(3.2)-Professional Communication:

Professional privileged communication refers to the communication between a legal advisor

and his client. The communication between two such persons in furtherance of the
professional employment of the advisor is protected and the legal advisor cannot be made to
disclose such information. The protection under this section extends to any person registered
as a legal practitioner in India as the section specifies the category of “barrister, pleader,
attorney or vakil” which in India means an advocate.
This principle is based on the fact that its inexistence would render advocates incapable of
defending their clients. Clients would constantly worry about being exposed by their attorney
and would not be inclined to share the entirety of details of their case. In the absence of such
a prohibition, the solicitation of the best possible legal advice would not be possible.

Just like in the case of spousal privilege, the adjudication of the existence of privilege is done
by looking at the date of the communication. If at the time of the communication, the parties
were in a relationship of Legal Advisor & Advisee, the communication shall be considered
privileged. In the event that the relationship is terminated, the privilege continues to exist.

This privilege however, is not absolute. The act itself states that under certain conditions, the
privilege does not apply. One such case is when the communication was in furtherance of an
illegal purpose. The following illustration may be used to understand the same:
“A, a client, says to B, an attorney — “I wish to obtain possession of property by the use of a
forged deed on which I request you to sue”. This communication, being made in furtherance
of a criminal purpose, is not protected from disclosure.”

6
1970 AIR 1876
Additionally, a disclosure of the privileged communication can be done with the express
authorization of the party making that communication. In case a third person is privy to the
details of that communication, he or she may be compelled to disclose such communication
and would be admissible as evidence subject to the provision of the Indian Evidence Act. The

provisions of section 127 also make the provisions of section 126 applicable to the assistants,
servants or clerks of the advocates who are bound to not disclose privileged communication.

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 obligation continues even after employment has ceased. This encapsulates the
rule of “once privileged always privileged”.
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 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. State7, 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. Niblett8, 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 Cannot 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.

(3.3)-State Privilege:

Section 123 of the Indian Evidence Act, 1872 prohibits any person from giving evidence
which has been taken from unpublished documents that concern the matters of the state. This
may only be done if the head of the concerned government department allows disclosure.
This is done in the interest of the security of the state and wellbeing of the public.
Additionally, if a 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 public interest. Any information about the commission of an offence
given to a police or revenue officer is also privileged.

In India, such a privilege can only be claimed by the head of a department and not even a
court is allowed to decide what comes under said privilege. For example, when a petitioner
sought the production of certain income-tax returns from the respondent, the court dwelled

7
AIR 2003 SC 1311
8
AIR 1957 All 219
into the question of whether or not the document would be protected under state privilege. It
was held that only the Income Tax Commissioner can determine the answer to this question
and no one else; not even a court.

However, the Supreme Court has clarified that in matters such as that of dismissal of a public
servant due to mal-fide activities, the state cannot claim privilege when the court requests the

production of his service records. The Supreme Court has also been of the view that such
communication may not be protected under the said privilege if in case the non-disclosure of
such information would have larger negative impacts on public interest that the disclosure.

As per Section 123 of the Indian Evidence Act 1872, a person is not permitted to give any
evidence which has been derived from any unpublished official records which relate to any
affairs of State, unless there is the permission of the head of the concerned department
concerned9.

9
https://www.thelawbug.com/what-are-privilged/ visited on 27.7.22 at 10.09 am
4-CONCLUSION:

There are some relationships which are deemed as protected. They are protected because a
person has to place his full confidence on the other and disclose some information which may
be damaging to him and his reputation. This is why the rule of privileged communication is
necessary as without this rule, a client would always be worried about his lawyer disclosing
information against him, or a patient would be worried about his doctor disclosing his
medical details. No one would dare to ask for professional advice and no man could safely go
to court, to find redressal or to defend himself. The Indian Evidence Act protects certain
communications from being disclosed due to the nature of the relationship between the
parties to whom such communications are being made. The act distinguishes between them
upon the basis of the relationships. This privilege however, is not absolute. It may be violated
in various cases that have either been specified in the statute itself or in various instances by
the courts in Indian Jurisprudence.

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.
5-BIBLIOGRAPHY
1. https://blog.ipleaders.in/privileged-communication-under-indian-evidence-act- 1872/

2. https://enterslice.com/learning/privileged-communication/

3. http://lawtimesjournal.in/privileged-communication/