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.[i] 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.[ii] The Indian Evidence Act recognizes various forms of privileged communication, namely:
1. Spousal Communication
2. Professional Communication
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.[iii]
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.[iv] 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.[v]
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.[vi]
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.[vii] 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.[viii]
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.[ix] 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.[x]
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.[xi]
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.[xii]
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.”[xiii]
If there was a crime being perpetrated since the beginning of the employment, the said communication too would not be protected under the said privilege. The following illustration signifies this concept:
“A, being charged with embezzlement, retains B, an attorney, to defend him. In the course of the proceedings, B observes that an entry has been made in A’s account-book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment.
This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure.”[xiv]
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. [xv] 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.[xvi]
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.[xvii] This is done in the interest of the security of the state and wellbeing of the public.[xviii] 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.[xix] Any information about the commission of an offence given to a police or revenue officer is also privileged.[xx]
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 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.[xxi]
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.[xxii] 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.[xxiii]
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.
Frequently Asked Questions
1. When can privileged communication be disregarded?
A communication between a client and a lawyer would amount to privileged communication, however in case both the client and lawyer are involved in a criminal activity then the principle of privileged communication would apply, same principle applied for Doctors etc.
2. What are the implication of the term “during marriage” under Section 122 of the Indian Evidence Act, 1873?
Spousal privilege communication refers to communication during the marriage, even in the event of death or divorce privilege communication remains static and cannot be violated.
3. Evidence provided by live in partner or mistress cohabite?
The Court is yet to delegate on the matter of live in partner, however for mistress it was held the section won’t apply and the evidence can be relied upon.
[i] Black’s Law Dictionary 326 (9th ed. 2009).
[ii] Namit Halakandi, “Privileged communication”, iPleaders <https://blog.ipleaders.in/privilege-communication-between-husband-and-wife>
[iii] Greenough v. Gaskell (1833)1 MYL, Brougham L.C.
[iv] Section 122, Indian Evidence Act, 1872
[v] S.J. Choudhary v. The State 1985 CriLJ 622
[vi] Bhalchandra Namdeo Shinde v. The State Of Maharashtra 2003(2) MhLj 580
[vii] M.C. Verghese v. T.J. Ponnam 1970 AIR 1876
[viii] Section 122, Indian Evidence Act 1872
[ix] Section 126, Indian Evidence Act 1872
[x] Avtar Singh, “Principles of the law of Evidence”, 521, (26th edition, 2016), Central Law Publication, Allahabad.
[xi] Menaka Sanjay Gandhi v. Ram Jethmalani AIR 1979 SC 468
[xii] Avtar Singh, “Principles of the law of Evidence”, 522, (26th edition, 2016), Central Law Publication, Allahabad.
[xiii] Section 126, Illustration (b), Indian Evidence Act, 1872
[xiv] Section 126, Illustration (c), Indian Evidence Act, 1872
[xv] Webster v. James Chapman and Company, (1989) 3 All E.R. 289
[xvi] Section 127, Indian Evidence Act, 1872
[xvii] Section 123, Indian Evidence Act, 1872
[xviii] Avtar Singh, “Principles of the law of Evidence”, 514, (26th edition, 2016), Central Law Publication, Allahabad.
[xix] Section 124, Indian Evidence Act, 1872
[xx] Section 125, Indian Evidence Act, 1872
[xxi] Debasis Sahu v. Nabeen Chandra Sahu, AIR 2002 Ori. 211
[xxii] State of U.P. v. Chandra Mohan Nigam, (1977) 4 SCC 345
[xxiii] R.K. Jain v. Union of India, AIR 1993 SC 1769