Privileged Communication under Indian Evidence Act, 1872

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 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. 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 the case of Board Of Directors, Y.M.C.A. and v. R.H. Niblett, 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.

Confidential communications with legal advisers

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 129 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 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.

Exceptions to this clause

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

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

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.

Right to privacy and Privileged Communication

Article 21 of 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, 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.

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.

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.