This article titled ‘Privileged Communication’ is written by Aritra Sarkar and discusses the concept of privileged communications. I. Introduction Some communications between certain persons are protected by the law from being produced as evidence in a suit between the parties. These have been mentioned under the following sections of the Indian Evidence Act- Communications during marriage discussed in… Read More »
This article titled ‘Privileged Communication’ is written by Aritra Sarkar and discusses the concept of privileged communications. I. Introduction Some communications between certain persons are protected by the law from being produced as evidence in a suit between the parties. These have been mentioned under the following sections of the Indian Evidence Act- Communications during marriage discussed in section 122 of the evidence act, Official communications discussed in section...
This article titled ‘Privileged Communication’ is written by Aritra Sarkar and discusses the concept of privileged communications.
I. Introduction
Some communications between certain persons are protected by the law from being produced as evidence in a suit between the parties. These have been mentioned under the following sections of the Indian Evidence Act-
Communications during marriage discussed in section 122 of the evidence act, Official communications discussed in section 124 of the evidence act, Information as to the commission of offences discussed in section 125 of the evidence act, Professional communication discussed in section 126 of the evidence act, Confidential Communications with Legal Advisors discussed in section 129 of the evidence act.
II. Communications during marriage
Section 122 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.”
In the case of M.C. Varghese v. T.J. Poonam,[1] it was said by the court that the term communication does not include what already passed between them, for example, a letter because in that case, it is the letter that discloses the contents and not the spouse.
Only the communications that occurred between the spouses during marriage are protected as privileged communication. If the communications are made before marriage or after the dissolution of the marriage that will not come under the privilege given by this section. However, the communications made during the marriage will be under the privilege under this section even after the marriage has been dissolved. Hence the phrase, “to whom he is or has been married”.[2]
Also, according to the section, the communication cannot be disclosed by taking the defence of “representative interest”. For example, in a case between the son of A and a stranger the widow of A cannot say that under the “representative interest” of A she wants to disclose the information said to her by A and then disclose it.[3] Also, it is to be noted that only communication is protected under this section and not conduct. So, if the wife sees her husband kill a person then she can give evidence as a witness. So, only communications are protected and not conduct. This was said in the case of Ram Bharose v. State of U.P.[4]
According to the last part of the section when there is a suit against one of the spouses by the other then this section is not applicable. This is because this section is based on the principle that confidence between the spouses is the most important thing to have a peaceful married life but when there is a suit against a spouse by the other then the confidence is already broken and they are quarrelling with each other so there is no need for the section anymore.[5]
In the case of Vishal Kaushik v. Family Court,[6] it was said that tape-recorded conversation between the spouses can be taken as admissible evidence but only when the conversation is recorded with the knowledge of the spouse. In case the tape is recorded without the knowledge of the spouse then that cannot be admissible as evidence and it will be a violation of the “right to privacy” under article 21 of the Indian constitution.
III. Official Communications
Section 124 deals with official communications it 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.”[7]
Here it is a matter of privilege which the public officer can claim when he is asked for certain information in a court if he wishes he may not answer the questions and can take cover under this section by taking the grounds that the statements were made to him under official confidence and he thinks that public interest would suffer if he discloses that information. The privilege under this section is absolute. Although there is absolute discretion under this section for the officer who is asked to disclose the information by the court has the power to see if the matter really is a matter of public interest. If the court is of the opinion that it is not a matter of public interest then the court can compel the officer for its disclosure. In deciding whether the document is a matter of public interest the court can look into the document and decide that fact. If the court agrees to the claim by the officer then the document is given back to the officer without disclosing the matter to anyone else.[8]
Although the term “Public officer” is not defined under the Act, here public officer will include all such officers who in the discharge of their regular duties receive communications made to them in official confidence and are expected not to disclose any of that confidential information to others must be held to be public officers within the meaning of Section 124. This was said in the case of P.P. v. Pocku Syed Ismail.[9]
The privilege can only be claimed by the departmental officer or the head of the department by an affidavit only filing a certificate is not enough in this regard. This was observed in the case of S. Ajit Singh v. Ashwani Kumar.[10]
As already said the intent of the document is not to publicise confidential matters but this section will have no effect once the confidential matter is already disclosed to a member of the public to whom the contents of the paper were not being made known in confidence. This was said in the case of Chandra Dhar Tewari v. Deputy Commissioner, Lucknow.[11]
In the case of Union of India v. Sudhir Kumar, it was said that if the confidential matter is forwarded by the officer to whom it was originally disclosed in confidence to another officer for further action then the latter officer can also claim the privilege under this section and it will be a sufficient claim.[12]
IV. Information as to Commission of Offences
This is dealt with in section 125 of the Indian evidence act 1872.
This section states that “No Magistrate or police-officer shall be compelled to say whence he got any information as to 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.” [13]
The explanation to this section defines the Revenue Officer as “any officer employed in or about the business of any branch of the public revenue. [14]
This section can be said to be present for the protection of sources because if sources of information will have to be disclosed then the sources will be embarrassed and will refuse to give such information.[15]
V. Professional Communication
This is dealt with in section 126 of the Indian evidence act 1872.
This section says 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-
Provided that nothing in this section 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.
It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client.” [16]
The explanation to this section says that this section will continue to apply even when the employment has ceased.
The illustration (a) to this section makes it very clear. A man committed the crime of forgery he goes to a lawyer and says to him that, “I have committed the crime of forgery and I wish you to defend me”. Since the defence of a criminal is not an offence this communication will come under the purview of this section. Even after the case is over and the lawyer is not anymore working under the person, he is not allowed to disclose the information unless the client consents as said in the explanation to this section.
The illustration (b) to the section says that if a person comes and says that he wants to obtain the possession of a property by the use of forged documents and he wants the lawyer to sue accordingly, then that being a criminal offence is not protected under the section.
“Confidential communications passing between a client and his legal adviser and made for the purpose of obtaining or giving legal advice are in general, privileged from disclosure. The privilege is available in respect of the oral testimony of witnesses, and the principles which determine whether a communication is or is not privileged are the same for both oral and written communications. The privilege is that of the client and may be waived by him.”[17]
If there arises a case in which a person goes to an advocate hoping to get his services and, in the regard, says all the information about him, but afterwards, he decided not to take his services, then all the communications that passed between the person and the advocate are protected under this section.[18]
Every person however guilty he maybe is entitled to a fair trial which is recognised by all civilised nations. For this purpose, both the parties, the one who actually did the crime as well as the one who was the victim, needs a lawyer to defend and prosecute. But a lawyer will not be able to defend a person until he knows the whole truth. Although giving false evidence to defend a criminal may seem to be unprofessional, it has to be done and all the communications between the accused and the defence lawyer will have to be kept confidential to save a very important right of a person i.e. the services of a counsel.
In the case of Venkatachalam v. Govindan Chettiar[19], it was held that section 126 which is meant to keep some information undisclosed to the public is not ruled by the RTI act, 2005. The RTI Act, 2005 can not undermine the section.
In the case of Council of the I.C.A.I. v. Mani S. Abraham[20], a chartered accountant gained some confidential information about his client and disclosed them without the consent of the client bank or third parties he was held to have done professional misconduct.
The same situation also applies to doctors. It is a settled law that doctors can not divulge the information gained during their professional communication to any person unless the patient or the person who gave the information to the doctor in confidence agrees of it being disclosed. This was held in the case of P.B. Desai v. State of Maharashtra.[21]
However, there is no law that journalists have to withhold information of crime under the disguise of professional ethics. However, by virtue of section 15(2) of the Press Council Act 1978,[22] the sources of information for the newspaper, news agency, editor or journalist are protected. Such protection is also given by section 125 of the Evidence Act too. In the case of People’s Union for Civil Liberties v. Union of India,[23] it was said that in the process of obtaining information if any right of a citizen is violated, nothing prevents him from resorting to other legal remedies.
Section 127 of the evidence act is just a necessary corollary to section 126 of the evidence act. This section says that “The provisions of section 126 shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils.”[24]
This section just adds to the scope of section 126 by making it applicable to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils also.
VI. Confidential Communications with Legal Advisors
This topic is dealt with in section 129 of the evidence act which says that
“No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional advisor, 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.”[25]
In the previous sections, we saw that the protection was given to the legal advisors and advocates that they can’t be compelled to disclose information about their clients unless the client consents. Here in section 129 of the Indian evidence act, the privilege is given to the client himself. The privilege, however, is subjected to a condition i.e. unless the person offers himself as a witness. As soon as the person in question offers himself as a witness the privilege goes away but only to the extent of that information which may appear to the court as necessary to understand evidence given by him. The protection to the client is necessary because if there is no protection to the client then the protection given to the advocate under professional communication will become illusory. [26]
Upholding the same principle, the court in the case of Munchershaw Bezonji v. New Dhurumsey S&W Company,[27] said that if a party becomes a witness of his own accord he shall, if the Court requires it, be made to disclose everything necessary to the true comprehension of his testimony.
In the case of Moher Sheikh v. Queen-Empress,[28] it was said that the section uses the word compelled to disclose in reference to the case when a person has given himself as a witness and it must refer to some amount of force given by the court.
Edited by- Akriti
References
[1] (1969) 1 SCC 37
[2] V. P. Sarathi pg. 328 ed. 7
[3] ibid
[4] AIR 1954 SC 704
[5] ibid
[6] AIR 2015 Raj 146
[7] Indian Evidence Act 1872, s 124
[8] V. P. Sarathi p. 330 ed. 7
[9] 1973 Crlj 931 (AP)
[10] ILR (1954) Pun 359
[11] ILR (1938) 14 Luck 351
[12] AIR 1963 Ori 111
[13] Indian Evidence Act 1872, s 125
[14] ibid
[15] V. P. Sarathi p.335 ed.7
[16] Indian Evidence Act 1872, s 126
[17] HALSBURY LAWS OF EVIDENCE, p.166, ed.4., Vol. 17, Para 237
[18] V. P. Sarathi p.337 ed.7
[19] AIR 2010 NOC 698 (Mad)
[20] AIR 2000 Ker 212
[21] (2013) 15 SCC 481
[22] Press Council Act 1978, s 15(2)
[23] (2004) 9 SCC 580
[24] Indian Evidence Act 1872, s 127
[25] Indian Evidence Act 1872, s 129
[26] Ratanlal and Dhirajlal ed.24, 2016
[27] ILR (1880) 4 Bom 576, 581
[28] (1893) 21 Cal 392, 400.
