PRIVILEGED COMMUNICATION

Adv. Usha Andewar

CHAPTER IX

SECTIONS 128 TO 134

Introduction

The Indian Evidence Act and now The Bharatiya Sakshya Adhiniyam constitutes
the bedrock of legal proceedings in India, outlining rules governing the
admissibility of evidence. Crucial to this Adhiniyam is the concept of privileged
communication, shielding specific confidential exchanges from disclosure in
legal settings.

Communication takes place when some information is exchanged between two

or more individuals. When a person communicates with another with the
intention of keeping the exchanged information private, it is a confidential
communication. People involved in this communication, trust each other to keep
the communication private and in confidence. The Indian law protects some
types of confidential communication.

Embracing various types of privileged discussions—between lawyers and clients,

spouses, and professionals—the Act aims to preserve trust and candor
(frankness, openness, honesty etc.) within these relationships while balancing
the need for transparency in legal proceedings. These protections are essential
to ensure that individuals can communicate freely and honestly with certain
trusted professionals and advisors without fear of their communications being
used against them in legal proceedings.

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Meaning of Privileged Communication

Privileged communication refers to certain confidential communications that are

protected from being disclosed in a court of law. These communications are
safeguarded by privileges recognized under the law, preventing individuals from
being compelled to reveal them in legal proceedings. The concept of privileged
communication is designed to encourage trust and openness in specific
relationships, ensuring that certain sensitive information remains confidential.
The Adhiniyam recognizes several types of privileged communication, including
those between lawyers and their clients (attorney-client privilege),
communications with spouses and communications with other professionals like
doctors, clergy or counsellors. These privileges aim to protect the privacy of
conversations or information shared within these relationships, promoting
honesty and trust. However, the specifics and extent of these privileges can vary
based on the legal jurisdiction and the nature of the communication.

Privileged communication is thus a communication protected by law between

entities that cannot be forced to be divulged or used as evidence in
court. Communication is considered privileged only when ;

• The relationship between the parties is legally recognized.

• The communication has taken in a private place, where only the parties to
the communication are present.

Privileged Communication under the Law

No witness can be compelled to disclose any conversation involved in
privileged communication. Different types of privileged communication are
protected under the law.

1. Section 128 – Communication during marriage.

Any communication that takes place between a husband and wife is
protected as privileged communication. The communication between a

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wife and husband is not protected when the marriage is dissolved. This is
not an absolute privilege. The communication between the husband and
wife will be considered as evidence if it relates to a criminal act. The
communication between the wife and husband is protected when it is
confidential or sensitive. The communication is protected even if it is not
sensitive or confidential. Where the husband was accused of murder, the
wife was called in to give a testimony against the husband, the testimony
can relate to the act and conduct of the accused (husband).

Exceptions to this rule include situations like acts distinct from the
communication itself, the waiver of privileges, legal proceedings between
the married individuals, communications made prior to or after the
marriage’s dissolution and evidence of communication provided by a third
party, as established in legal precedents such as Appu Vs. State 1971
and Queen Empress Vs. Danoghue 1899.

In Ram Bharose Vs. State of UP 1954, the Court laid down that mere
doing of an act in the presence of the spouse cannot be considered as
communication between them. It is not like any domestic act will be
considered as communication. Communication must be conveyed in some
way; be it verbal, or non-verbal.

In the instant case, the wife has seen her husband coming down from the
roof and then coming out of the bathroom again with changed clothes. The
wife testified regarding the same and the testimony was admissible as the
act of the husband was not a communication.

In the case of MC Verghese Vs. TJ Ponnan 1970, the respondent, TJ

Ponnan, sent letters from Bombay to his wife, Rathi, who was residing with
her parents in Trivandrum. These letters were claimed to contain
defamatory remarks about Verghese, who was the petitioner and Rathi’s
father. Consequently, the father-in-law initiated a lawsuit based on the content

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 of these letters, which were passed from the wife to her father. The Kerala High
Court dismissed the admissibility of these letters as evidence, invoking this
Section regarding communications during marriage.

The Supreme Court, upon appeal, established that although a spouse is

typically prohibited from testifying about the content of certain
communications, these communications can be validated by a third party
(in this instance, the wife’s father).

2. Section 129 – Affairs of the State

No information can be disclosed from the unpublished official records
which relate to state affairs. To do so, the permission of the relevant
department head is necessary. A privilege is claimed on the documents
and other communication by public officials relating to affairs of the state.
The privilege should be claimed either by the minister, or his secretary, or
by the head of the department. The usual method of claiming the privilege
is by filing an affidavit. Where the non-disclosure of certain information
has a greater adverse impact on the public interest than its revelation,
such communication may not be protected by state privileges.

In the case of State of UP Vs. Raj Narain 1975, Mr. Raj Narain filed an
election petition alleging the misappropriation of public funds by a political
party for the re-election of the Prime Minister of India. The petitioner
requested the Government of U.P. to produce the Blue Book, containing
guidelines for the safety of the Prime Minister during travels.

The Allahabad High Court ruled that the Blue Book did not meet the
criteria of Section 123 of the Indian Evidence Act and ordered its
production, asserting that failure to produce the document would
jeopardize public interest. The judgment favoured Mr. Raj Narain.
Subsequently, the Uttar Pradesh State Government appealed this decision
to the Supreme Court.

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 The question concerning the classification of the Blue Book record under
Section 123 of the Indian Evidence Act, 1872, which pertains to
unpublished government records and whether the non-disclosure of this
document impacts public interest, was addressed in the Supreme Court
of India.

The Supreme Court opined that Section 123 of the Indian Evidence Act,
primarily aims to prevent harm to public interest. The judges asserted that
any document capable of influencing public policy and future
developments should be accessible to the court.

The court’s decision highlighted that when the potential public interest
affected by non-disclosure outweighs that affected by disclosure, the Court
has the right to demand the production of such documents.
The Supreme Court upheld the Allahabad High Court’s decision and
emphasized that it is within the judiciary’s purview to determine if a
document serves the public interest.

3. Section 130 – Official communications

When any communication takes place in the official confidence, the public
officer is not compelled to share the same. When a court requires the
disclosure of service records of a public official suspected of wrongdoing,
the state cannot claim such privileges.

4. Section 131 – Information as to commission of offences

No revenue officer or magistrate can be compelled to share any
information, which is about the commission of crime.

5. Section 132 – Professional communications

Advocate are prohibited from disclosing any information shared with them
by a client. Privileged communication between a legal advisor and client
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shall not be compelled to be disclosed in court. The relationship between
a Advocate and client is considered a professional relationship and the
communication during this time is privileged. Such communication
should have taken place during the course of employment. The
communication can only be disclosed when the client gives an express
consent for the same. A legal professional is also prohibited from sharing
any information contained in any documents. There are two exemptions
made under this provision. The communication can be disclosed ;
➢ If the intention is of committing an activity which is illegal.
➢ If a fraud or crime is committed. This should have occurred in the
course of employment.

The privilege is not waived until the client calls their legal representative
to testify. This will entail that the client has agreed to disclose the details
of a privileged communication.

This provision also applies to interpreters, clerks and employees of

advocates.

Exception to the privilege under Section 132

(i) Illegal Purpose (Proviso 1) – Communications made in furtherance
of an illegal purpose are not protected.
(ii) Crime/fraud since employment began (Proviso 2) – If an advocate
finds in the course of his employment that any crime/fraud has been
committed since the employment began, he can disclose such
information.
(iii) Disclosure with client consent – Such communications can be
disclosed with the client's express consent.
(iv) Advocate’s suit against client – If the advocate himself sues the client
for his professional services, he may disclose so much of the
information as is relevant to the issue.

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(v) Information falling into hands of third persons – This prohibition
works against the advocate, but not against any other person.
(vi) Documents already put on record – No privilege is available in
respect of such documents.
(vii) Joint interest – No privilege attaches to communication between
solicitor and client as against persons having a joint interest with
the client in the subject-matter of communication.

Situation 1
Harry, a client, says to Ron, an attorney – “I have murdered a man and the
body is in my freezer. I want your advice on how I should get rid of it”. This
communication is made in furtherance of a criminal purpose, it is not
protected from disclosure.

Situation 2
Hermoine wants to appoint Draco as her lawyer but Vakalatnama (a
document empowering an advocate to represent his client in the Court)
has not been signed yet.

She tells Draco about how Tom was brutally killed by her and her friends.

The communication is not protected from disclosure because the client-

advocate relationship does not exist as the Vakalatnama has not been
signed yet.

Situation 3
Harry, a client, says to Ron, an attorney – “I stole a BMW and sold its parts
in the black-market”. This communication is protected from disclosure as
the crime is already done and the client-advocate relationship exists
between them.

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 Privileged communication between doctor and patients
Information given to a doctor remains protected communication, especially
when relating to sensitive illnesses. This privilege, however, could be
waived if the patient's health is in jeopardy and/or the information is
thought to be crucial to the case. The privilege also does not stand when
the health condition of the patient affects someone else. For example, the
HIV+ diagnosis of a person is important to be brought to the knowledge of
their possible future spouse.

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 this Section. 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.

6. Section 133 – Privilege not Waived by Volunteering Evidence

▪ Section 133 explains that the privilege provided in Section 132
cannot be waived by volunteering evidence of the client. The
privilege belongs to the client and therefore he alone can waive it.
▪ That privilege is not lost by calling the advocate as a witness, unless
the party having the privilege questions him relating to confidential
matters.
▪ The object of section 133 is to protect the client and to save the
integrity of the legal profession.

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7. Section 134 – Confidential Communications with Legal Advisors
▪ Section 134 protects confidential communications between
individuals and their legal advisors.
▪ It provides that no one shall be compelled to disclose to the court
any confidential communication with their legal advisor unless they
offer themselves as a witness.
▪ The privilege aims to encourage full and frank communication
between clients and their legal advisors, which is essential for
effective legal representation.

Exceptions to Privileged Communication

Privileged communication is not absolute. There are certain exceptions to

privileged communication. The disclosure can be compelled in the following
scenarios :-

1. In case of a fraud or crime

When the privileged communication takes place with the intention to
commit a fraud or crime in the future, it cannot be protected. If a client
seeks legal advice with the aim to commit fraud or to carry out an unlawful
act, then it cannot be protected. A lawyer can also not protect a disclosure
made by their clients which results in a fraud or a crime.

2. In the case of patient’s health

A doctor can be compelled by the court in the cases when it is vital to
disclose the necessary information. If the patient’s mental state or his
health is in question, then the privileged communication between the
patient and the doctor will not apply. The case should be directly impacted
by the information provided by the doctor and the patient’s health. Such
communication is also not protected by law when made to a future
possible spouse about diagnosis of HIV+.

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 3. In the case of waiver
When someone abandons the right of privileged communication, it is called
a waiver. This is a voluntary act. When any party to the privileged
communication, themselves agree to disclose the information, the court
allows the same. No objection can be raised in the later stage, after the
information is introduced.

135. No witness who is not a party to a suit shall be compelled to produce his title-deeds to any property, or any document in
virtue of which he holds any property as pledgee or mortgagee or any document the production
of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking the production
of such deeds or some person through whom he claims.

136. No one shall be compelled to produce documents in his possession or electronic records under his control,
which any other person would be entitled to refuse to produce if they were in his possession or control, unless such
last-mentioned person consents to their production.

137. A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit
or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate,
or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such
witness to a penalty or forfeiture of any kind:
Provided that no such answer, which a witness shall be compelled to give, shall
subject him to any arrest or prosecution, or be proved against him in any criminal proceeding,
except a prosecution forgiving false evidence by such answer.

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Section Type of Privilege Key Points

– Protects communications between spouses during their

Communication marriage
Section 128
during marriage – Exception in suits between married persons or when one spouse
is prosecuted for a crime against the other.

– Protects unpublished official records related to affairs of

Evidence as to affairs the State.
Section 129
of State – Permission required from the head of the concerned department
to disclose such records.

Official – Public officers cannot be compelled to disclose official

Section 130
Communication communications when it would harm the public interest.

Information as to
– No magistrate, police officer, or revenue officer can be compelled
Section 131 commission of
to reveal the source of information regarding an offence.
offences

– Protects communications between a client and their barrister,

attorney, pleader, or vakil, including advice and documents
related to the legal matter.
– Exceptions include communication in furtherance of an illegal
Professional
Section 132 purpose or facts observed in the course of employment showing a
Communication
crime or fraud.
– No protection for information that falls into the hands of a third
person, legal actions by lawyers against clients, or documents
already placed on record.

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Section Type of Privilege Key Points

Applies to
Section 132 – Extends the provisions of Section 126 to interpreters and clerks
interpreters, clerks,
(3) or servants of legal professionals.
etc.

– Giving evidence in court does not imply consent to disclose

privileged information under Section 126. Calling a legal
Privilege not waived by
Section 133 professional as a witness implies consent only if specific questions
volunteering evidence
are asked that would require the disclosure of privileged
information.

– Protects confidential communications between a person and

Confidential their legal professional adviser.
Section 134 communications with – Disclosure may be compelled in court if the person offers
legal advisers themselves as a witness and the disclosure is necessary to explain
their evidence.

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Case laws on Privileged Communications

Case Key Points

– Interpretation of Section 123 of the Indian Evidence Act regarding

evidence as to affairs of the state.
State Of U.P. Vs. Raj Narain (1975)
– Court’s right to demand production of documents when non-
disclosure affects public interest.

– Communication of defamatory content in letters claimed to be

MC Verghese Vs. TJ Ponnan (1970) protected by marital communication privilege.
– Third person’s ability to prove such communications.

– Protection of communications between spouses during marriage.

Queen Empress Vs. Danoghue (1899) – Possible exceptions when one spouse discloses the communication
to a third party.

– Admissibility of a letter containing a confession to murder given by

Rumping Vs. Director of Public
the appellant to a colleague for posting.
Prosecutions (1862)
– Role of third-party witnesses in such cases.

– Protection of confidential communications with legal advisers

Smt. K.A. Aslam Vs. Union of India under Section 129 of the Indian Evidence Act.
(2009) – Limitations on compelling disclosure of such communications
when the person offers themselves as a witness.

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