Other Privileged Communications in Indian Evidence Act, 1872

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Oral evidence holds crucial significance in legal proceedings, providing firsthand accounts and perspectives but there is certain information or conservations that cannot be disclosed even if required during a trial. Such conversations are protected by law and cannot be disclosed either by compelling an individual to share the information or by his/her willingness to do the same. These conversations are known as privileged communications. According to the Collins Dictionary, privileged communication is defined as “A communication that one cannot legally be compelled to divulge, as that to a lawyer from a client  or a communication made under certain circumstances, as in a legislative proceeding, such that it is not actionable as slander or libel.” The primary purpose of privileged communication is to encourage people to communicate freely within certain personal or professional relationships. It also protects the confidentiality and integrity of certain professional relationships. In Indian law, the concept of privileged communication is defined under the Indian Evidence Act, 1872, illustrating the fact that such information cannot be adduced as evidence in a trial barring certain exceptions.  According to the Act of 1872, there are different types of privileged communication such as spousal/marital communication, official communication, professional communication, and others. This article deals with a brief discussion of privilege communication other than spousal privilege communication. 

Privileged Communications other than Spousal Privilege under the Indian Evidence Act, 1872

Under the Indian Evidence Act, privileged communication is defined in Section 122- 129 where Section 122 deals with ‘Communications during marriage’. Below are other privileged communications under the Evidence Act.

Section 123- ‘Evidence as to affairs of State’

According to this Section, no individual is permitted to give any evidence derived from unpublished official records relating to any affairs of the State, except with the permission of the officer at the head of the concerned department, who shall give or withhold such permission as he thinks fit. Section 123 of the Indian Evidence Act must be read with Section 162 which states that “A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court.”

Section 124- ‘Official Communications’

It states that no public officer can be compelled to divulge any sort of communication made to him in official confidence if he believes that disclosing such a communication could affect the public interests. For instance, if disclosure of information, that may harm the State’s good diplomatic relations, security, etc., the state has the privilege to not to produce documents related to the state’s affairs. Moreover, according to Section 125 of the Act, any Magistrate or Police officer cannot be compelled to say whence he got any information regarding the commission of any offence, and “no revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.”

Section 126- ‘Professional Communication’

Professional privilege, professional secrecy, or professional confidentiality, is referred to the legal right of professionals to withhold their client’s information shared with them during their professional relationship. In the Indian Evidence Act, Section 126 deals with ‘Professional Communication’, it states that “No barrister, attorney, pleader or vakil, shall at any time be permitted, unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment.” It mainly establishes attorney-client privilege granting advocates/lawyers the right to refuse to disclose any communication or information shared by their clients. This helps in initiating open communication between an attorney and a client so that they can seek guidance, advice, and support without any fear of their confidential information being disclosed and used against them. In short, any communication or information shared by a client with his/her lawyer is protected under this Section. Certain exceptions are also discussed in this Section as “Nothing in Section 126 shall protect from disclosure:

  • Any such communication made in furtherance of any illegal purpose,
  • Any fact observed by any barrister, pleader, attorney, or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.”

Apart from the lawyer and client relationship, Section 126 of the Indian Evidence Act also applies to interpreters and the clerks or servants of barristers, pleaders, attorneys, and vakils, as mentioned under Section 127 of the Act of 1872.

Section 128- ‘Privilege not waived by volunteering evidence’

According to this, if any party in a legal proceeding gives evidence at their own instance or otherwise, they will not be deemed to have consented to disclose information protected under Section 126; and, if any party to a suit or proceeding calls any such barrister, pleader, attorney or vakil as a witness, he will be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose.

Section 129- ‘Confidential communications with legal advisers’

As per Section 129 of the Indian Evidence Act, ‘Confidential communications with legal advisers’ is also protected. It stated that “No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others.” 

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Certain professional relationships are deemed privileged as the individuals need to place complete trust in each other and share potentially sensitive information. The law of privileged communication is essential in these instances. Without this legal protection, clients might fear their lawyers disclosing information, patients might worry about doctors revealing sensitive medical records, and similar concerns could arise in various relationships. The law ensures a sense of confidentiality and nurtures trust within society.

1. Which Sections of the Indian Evidence Act deal with Privileged Communications?
2. Will any communication made with an advocate before appointing him/her be protected under Section 126 of the Indian Evidence Act?