When two individuals are in a legally recognized relationship, they are not bound to disclose any details of the communication that happened between them by virtue of this relationship. Such a relationship is referred to as a protected relationship and this form of communication is known as ‘Privileged Communication’.
According to the Black’s Law Dictionary[i], Privileged Communications are “those statements made by a certain person within a protected relationship…which the law protects from forced disclosure on the witness stand…”
It extends to a variety of legal relationships such as Attorney and Client, Doctor and Patient, Husband and Wife, Priest and Penitent and it also extends to the State in the form of State Privilege.
Essentials to claim Privileged Communication:
It is important to note that the following pre-requisites need to be ensured in order for any communication to be considered as a Privileged communication;
- The communication should take place between individuals who are in a protected legal relationship
- The communication should take place in private
- The information communicated cannot be disclosed to a third party as the privileged status ends once the information is disclosed to a third party who was not a part of the interaction.[ii]
Effect of Privileged Communication:
As per the definition of Privileged Communication, the persons communicating in the said protected relationship cannot be compelled to disclose the details of the communication on a witness stand. Whatever is communicated between the persons within such a protected relationship is considered as confidential and can’t be forced by law for disclosure.
The rule of privileged communication is that the details of the communication are inadmissible as evidence in a court of law. The objective behind the same is to protect the confidentiality and sanctity of certain protected relationships.
Any disclosure or exchange of information of the privileged communication to an external party or to the Court is not permissible without the consent of the other party involved in the interaction.
Types of relationships where Privileged communication is applicable to:
Any communication between a married couple is considered to be confidential. Either of the spouses cannot disclose details of their communication to a third party or a Court cannot compel either the husband or wife to testify against each other. This privilege also extends to dissolved marriages. In M.C. Verghese v. T J. Ponnam[iii], the Court held that if the marriage was subsisting at the time when the communications were made, the bar prescribed by Section 122 of the Indian Evidence Act, 1872 will operate. There existed a defamation case between the husband and wife and the Court required the wife to appear as a witness to give evidence about the communication between the married couple. In such a situation, communication couldn’t be disclosed unless the husband consents because, if the marriage was subsisting at the time when the communication was made the bar prescribed by s. 122 would operate.
The legal provision that deals with privileged communication between spouses is under Section 122 of the Indian Evidence Act, 1872.[iv]
The exceptions to this privilege are;
- When there is a dispute between the married persons, then they can disclose details about their communication.
- When one married person is being prosecuted for a crime committed against the other, this privilege is not available.
Priest and penitent relationship
In the Roman Catholic Church a penitent is a person who confesses their sins to a priest and submits to the penance that he imposes. It is also referred to as clergy-penitent privilege. In such a relationship, the priest is bound by privileged communication to not disclose the details of the communication or confessions between them.
The clergy-penitent privilege originated in the Canon law of the Roman Catholic Church. Under Canon law, “the seal of the confessional is ‘inviolable.’” A priest could be denounced for disclosing the details of a confession.[v]
This privilege is given recognition in the United States and several other countries. However, Indian legislations only provide for privileged communication between spouses and legal advisers and priest and penitent relationship is not covered under Indian law.
Doctor and patient relationship
Doctor and patient confidentiality is one of the most discussed areas and is prevalent across nations. Any information regarding a patient, that a doctor comes across by virtue of his capacity as a doctor is not to be disclosed to any third party. Any sort of communication between a doctor and their patient remains confidential. The Medical Council of India is authorized to revoke the license of the doctor who breaches the confidentiality.
Under The Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002[vi], there is a bar on doctors to disclose confidential information regarding their patients. Rule 7.14 deals with the doctor patient confidentiality.
However, the exceptions to this rule include:
- when the doctor is called upon by a court of law under the orders of the Presiding Judge.
- when there is a serious risk to a person or the community at large.
- When it is a case of notifiable diseases, the concerned public health authorities must be informed immediately.
Lawyer and Client relationship
Privileged communication extends to Lawyer and his clients as well. Any communication between an attorney and his client is protected and remains confidential.
The Attorney-Client privilege in India is governed by legal provisions under the following legislations:
- The Indian Evidence Act, 1872
- Bar Council of India Rules
- Advocates Act, 1961.
Sections 126-129 of the Indian Evidence Act, 1872 deal with privileged communication in a professional relationship.
Section 126[vii] 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 or to disclose the contents of any documents or to disclose any advice given by him to his client in the course of his employment or for the purpose of such employment.
The exceptions for this privilege are as follows;
- Privilege may be waived with express consent of the client.
- If such communication is in furtherance of any illegal purpose.
- Any fact observed by a lawyer in the course of his employment, showing that any crime or fraud has been committed by the client since the commencement of his employment.
In Municipal Corporation of Greater Bombay v. Vijay Metal Works[viii] the Court held that “a salaried employee who advises his employer on all legal questions and also other legal matters would get the same protection as others, viz., barrister, attorney, pleader or vakil, under Ss.126 and 129, and, therefore, any communication made in confidence to him by his employer seeking his legal advice or by him to his employer giving legal advice should get the protections of Ss.126 and 129.”
Privileged communication protects the details of an interaction between individuals in a protected relationship. According to the rule of privileged communication, a court of law cannot ask an individual in this protected relationship to disclose any details of this communication giving due regard to the exceptions.
Edited by Pushpamrita Roy
Approved & Published – Sakshi Raje
[i] Black’s Law Dictionary, 6th ed., 1991.
[iii] M.C. Verghese v. T J. Ponnam, (1970 AIR 1876)
[iv] §122, Indian Evidence Act, 1872
[v] F. Robert Radel, II & Andrew A. Labbe, ‘The Clergy-Penitent Privilege: An Overview’https://www.gspalaw.com/the-clergy-penitent-privilege-an-overview/
[vi]Rule 7.14, The Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002; https://www.mciindia.org/documents/rulesAndRegulations/Ethics%20Regulations-2002.pdf
[vii]§126, Indian Evidence Act, 1872
[viii]Municipal Corporation of Greater Bombay v. Vijay Metal Works (AIR 1982 Bom 6)