Privileged legal communications

The Indian Evidence Act talks about various instances when any person cannot be compelled to tell part of their conversation in court. This is known as privileged communication. there are various relations which are covered under this privilege.

1. Privileged Communications Under Indian Evidence Act By: Avichal Mishra Roll Number: 02417703518 Semester and Section: 5K

2. Introduction ‘Evidence’ word has its roots in the Latin language. It is derived from the Latin word ‘evidera’. Evidera means to discover clearly, to ascertain or to prove. As per Blackstone, the word evidence “ signifies that which demonstrates, makes clear or ascertains the truth of the facts or points in issue either in one side or other”. As per the Indian Evidence Act, 1872 there are basically two types of evidence i.e. oral and documentary. This act lays down laws regarding admissibility of some evidence, their value etc. It also talks about privileged communication. 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. There are various relations which are covered under the privileged communications. They are: Communication during marriages Professional Privileges State Privileges Judges and magistrates

3. Judges and magistrates Section 121 and 125 talks about the incidents when Judges and magistrates can and cannot be asked to be presented as witness. This section states that “ No Judge or Magistrate shall, except upon the special order of some Court to which he is subordinate, be compelled to answer any questions as to his own conduct in court as such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting. ” This section can be broken down into 2 parts. The first part says without any special order from a superior court, no judge may be compelled to answer any questions regarding his act as a judge or magistrate , or as to anything which came to his knowledge in Court as such Judge or Magistrate. Meanwhile the second part states that he may be examined as to any other matter which may have occurred in the time being he was presiding as a judge or magistrate.

4. Section 125 As per this section, no Magistrate or cop will be constrained to state whence he got any data concerning the commission of any offense, and no Revenue official will be constrained to state whence he got any data concerning the commission of any offense against the open income.

5. Communication during marriages 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. 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.

6. This section states that: “ No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other. “ The interpretation of section 122 should be narrowed or wider has been an important question. In the case of Bhalchandra Namdeo Shinde v. The State Of Maharashtra 2003(2) MhLj 580 , this section was interpreted 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. The Supreme Court has also said that any and all communication between spouses must remain confidential if the communication happened during the subsistence of the marriage.

7. Exception to the Privileges 1. Acts or conducts apart from the communication can be disclosed. 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. In another landmark case, 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.

8. 2. 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. 3. In Suits or criminal proceedings between the two spouses. 4. Communications made before marriage or after dissolution of marriage.

9. professional communication between a legal adviser and the client. Sections 126 to 129 of the Indian Evidence Act, 1872 deal with privilege that is attached to professional communication between a legal adviser and the client. Section 126 and 128 mention circumstances under which the legal adviser can give evidence of such professional communication. Section 127 provides that interpreters, clerks or servants of legal adviser are restrained similarly. Section 129 says when a legal adviser can be compelled to disclose the confidential communication which has taken place between him and his client.

10. Section 126 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- communication to him by the client or vice versa, contents or conditions of a document, and 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”.

11. Exceptions of section 126 The privilege under Section 126 is subject to certain  exceptions  i.e. under the following conditions communication can be disclosed: When the communication was made in furtherance of an illegal purpose;   When the attorney gets to know that a crime or fraud has been committed since employment began; When the client gives consent;  When the information falls into the hands of a third party; When a lawyer sues the client for professional purpose.

12. Section 127 Section 127 states that of the Evidence Act states that Section 126 applies to- Interpreters Clerks or servants of barristers Pleaders Attorneys Vakils

13. Section 128 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.

14. Confidential Communication with Legal advisor 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.

15. Section 130 This section states that, no observer who isn't involved with a suit will be constrained to create his title-deeds to any property, or any record by ethicalness of which he holds property as pledgee or mortgagee or any archive the creation of which may ,in general, criminate him, except if he has concurred recorded as a hard copy to deliver them with the individual looking for the creation of such deeds or some individual through whom he asserts.

16. Section 131 In this section, nobody will be constrained to create archives in his ownership or electronic records under his influence, which some other individual would be qualified for a decline to deliver on the off chance that they were in his ownership or control, except if such last-referenced individual agrees to their creation.

17. State communication and official communication The Indian Evidence Act’s section 123 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.

18. Section 124 of the Indian Evidence Act states that no public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure. This lays down a discretionary power on the public officer.