In this article, Sagnik Chatterjee who is currently in 2nd Year pursuing BA.LL.B, from Symbiosis Law School, Pune, discusses about the topic Privileged Communications under the Indian Evidence Act.
The privilege of a witness implies the privilege of a witness to retain proof to disclose certain issues. There are certain conditions in which certain people are not constrained to testify in the court of law (give evidence). The privilege depends on the convenience and public policy. Section 122 to Section 132 of the Indian Evidence Act 1872 talks about the provisions regarding Privileged Communications in India.
Definition of Privileged Communication
Privileged Communication by the term itself it is self-explanatory that it is a protected communication between two or more people which also means that under no circumstances the courts can force the individuals involved in the privileged communication to disclose the details of such and in case any lawyer of either side chooses to disclose such information that information will be regarded as inadmissible in the court of law. When two individuals enter into a legally recognized relationship, all communication that takes place between them is protected. This communication is known as privileged communication.
There are certain conditions to fulfil for information or communication to be regarded as privileged communication in the court of law and those are:
- The communication has to happen only between the individuals who entered in a protected legal relationship and no third party should be involved,
- The communication between the individuals has to happen in a private setting,
- The information communicated between the individuals in a protected legal relationship should not be disclosed to a third party by any of them.
Privileged Communications are made in a private setting and are protected from disclosure to third parties. The rule of privileged communication exists because the privacy of confidential relationships is valued in the society. This is why they are not admissible as evidence.
Communications during marriage
Under Section 122 of the Evidence Act, the communications between a husband and a wife have been given the status of privileged communication. It states that a married person:
- Shall not be compelled to disclose any communication made to them during the marriage by their spouse or ex-spouse.
- They are not permitted to disclose anything without their spouse’s or ex-spouse’s consent even if they are willing to.
For the purpose of this Section, the communication between the Husband and the Wife has to be made only during their marriage for it to be considered as privileged. In case of any communication made before the marriage or after the dissolution of the same will not have this privilege.
In the case of S.J Choudhary v. The State, the Court held that the communications between the spouses are privileged and compelling them to disclose their such information is far worse than not getting any information at all and they are inadmissible.
Any conversation or communication between a husband and wife is privileged no matter what the means of communicating was.
However, this rule was later overruled in the case of Bhalchandra Namdeo Shinde v. the State of Maharashtra, wherein the Court laid down that Section 122 must always be interpreted following the literal rule of interpretation only and thus it should not have any broad interpretations.
Section 126 of the Act says that – an advocate, lawyer, pleader or vakil is allowed to disclose any communication made to him by his client during the course and with the end goal of his employment without the assent of his customer. Communications made between a lawyer and his customer is a privileged one, and nobody can urge either the lawyer or his client to disclose anything with respect to the equivalent. In the case of Maneka Gandhi v. Rani Jethmalani, the Court observed that everyone has the right to a fair trial, and for obtaining such right one might need to seek help from an attorney.
The Attorney-Client privilege in India is governed by provisions under,
All together for a communication to be privileged under this section, the client-lawyer relationship must exist when the communication occurred. Any communication made with a lawyer before actually hiring or appointing him isn’t secured under this Section. Like Spousal Privileges, this benefit isn’t absolute either. The Act itself expresses that this privilege doesn’t make a difference under certain conditions. Communication in the facilitation of an illicit reason could be one case of the equivalent. Section 126 states that no lawyer or a legal counsellor can be allowed to reveal the classified information that,
- The client disclosed to him, or
- Any advice that the lawyer gave to his client
This section also states that the lawyer cannot disclose any contents of the documents that he became familiar with during the course of his employment and even after the termination of employment to ensure no harm caused to the Individual.
Religious and Spiritual Advisers
It is otherwise called priest-penitent privilege. This privilege doesn’t permit the conversations or information or confessions made to a minister priest or a religious advisor to be acquired court. The privilege is allowed so that an individual can take his religious guide in certainty and talk straightforwardly with him. It is pervasive among individuals of Catholic Religion. Catholics are required to admit their sins to priests, who are limited by Church Canon Law from making any divulgence.
Doctors and Psychologist
Doctor-patient confidentiality is the term used for the protected relation between a doctor and his patient. This protected relation makes all information exchanged between them privileged. The Medical Council of India can revoke the license of the doctor who breaches the confidentiality.
In India, various provisions deal with doctor-patient confidentiality;
- Under Article 21 of the Constitution of India, any personal information of the patient is part of the right to privacy and hence the information doctors keep related to their patients is strictly confidential.
- This right of the patient is also protected under the Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002.
Rule 7.14 of the regulations state that no registered medical professional is allowed to disclose the information about a patient, which he learnt during the exercise of his profession.
As well as the other privileges this one is also not absolute, a medical professional is only allowed to disclose information about a patient,
- If the presiding judge in the court, orders to do the same;
- If the circumstances are such that there’s a risk to the patient or the community at large;
- If it is a notifiable disease.
Section 123 of The Indian Evidence Act expresses that no individual is permitted to give any proof that might be gotten from any unpublished records of any state affairs. Unless with the consent of the officer-in-charge or the head officer at the concerned office. Such an official can give or retain permissions regarding the same as he deems fit.
In the case of Duncan v. Cammell Laird and Co. Ltd, it was held that in the event that such a circumstance emerges, the Court will undoubtedly acknowledge the choice of the public officer with no inquiries. Further, the decision ruling out of such documents is completely at the discretion of the Judge.
Thus, the Court must determine whether any documents fall under this category, depending upon the facts and circumstances of every case. However, it is clear that only the Court has the power to decide whether any document can be classified as an ‘unpublished document of state affairs’.
Section 124 of the Evidence Act discusses official communications. It expresses that a public officer cannot be constrained to reveal any communication made to him in official confidence on the off chance that he accepts that such exposure could hurt the public interests.
While Section 123 discussions about unpublished archives or documents related to affairs of the state, section 124 limits the revelation of all communication made in an official capacity, be it recorded as a hard copy or not and it is insignificant whether they are in relation to state affairs or not.
On account of in re. Mantubhai Mehta, it was held that it is upon the Court to decide if a report is a communication made to a public officer l in legitimate certainty and if the record doesn’t manage any issues of the State, it might be taken up as proof.
While deciding if the communication was made in official confidence or not, just primary evidence must be utilized and the equivalent can’t be dictated by secondary proof, as laid down by the High Court of Madras in Sivasankaram Pillai v. Agali Narayana Rao.
Section 125 of the Evidence Act states that a Magistrate or a Police Officer cannot be compelled to reveal as to how they got any information regarding the commission of a crime.
The section further states that a Revenue Officer cannot be compelled to reveal as to how he got any information regarding the commission of any offence against the public revenue.
The privileged communication which secures journalists is called Reporter’s Privilege or Press-Source Protection Privilege. This benefit shields journalists from uncovering their sources. All though in India, the situation of the courts on this issue isn’t clear.
In India, the source protection privilege is allowed under The Press Council of India Act, 1978.
Section 15(1) of the Act expresses the general powers of the Press Council of India and Section 15(2) states that, despite the fact that the Press Council of India has been granted certain powers, it can’t constrain any paper, news organization, manager or writer to disclose the source of any news or data distributed by that paper or got or announced by the news office, editor or journalist.
There are a few relationships which are regarded as privileged. They are secured in light of the fact that an individual need to put his full certainty on the other and disclose some data which might be harming to him and his notoriety. This is the reason the law of privileged communication is fundamental as without this law, a client would consistently be stressed over his legal counsellor or lawyer unveiling data against him, or a patient would be stressed over his Doctor revealing his sensitive medical records and many more which is quite opposite of what we actually want in the society.
 1984 AIR 618
 (1933) 35 BOMLR 174
 2003 (2) ALD Cri 84
 1979 AIR 468
 1942 AC 624
 (1937) 2 MLJ 381