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PRIVILEGED COMMUNICATIONS

There are certain matters which a witness cannot either be compelled to disclose or

even if the witness is willing to disclose, he will not be permitted to do so. Such matters are

known as privileged communications. For example, a wife cannot be permitted to disclose

what her husband told her about the matter under inquiry.

Privileged communications are of two kinds, namely, those which are privileged from

disclosure and those which are prohibited from being disclosed.

Communications not permitted to be disclosed

There are certain communications which it is the policy of law that they should not be

disclosed. The law, therefore, does not permit them to be disclosed even if the party

possessing that information wishes to disclose IL This protection from disclosure is to be

found in the following provisions at the Act.

S. 122. Communications during marriage.No person who is or has been married

shall be compelled to disclose any communication made to him during marriage to any person

towhom 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.

Protected from disclosure

Section 122 prevents communications between a man and his wife from being

disclosed. Marriage inspires confidence and confidence inspires openness of heart and

feeling. This enables a married person to make a clean breast of everything to his or her

spouse. Naturally, therefore, such matters should be free from the risk of being disclosed. The

policy of protection is thus stated by an American Judge.

Communications and transactions between husband and wife were early recognised as

privileged and neither could be compelled to disclose what took place between them and

neither was a competent witness to testify to such transactions or communications of a

confidential nature or induced by marital relations. From experience it was found that far less

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evil would result from the exclusion of such testimony than from its admission. It may in

individual cases work hardship, but the destruction of confidence between a husband and wife

would cause much misery and affect the marriage relation. This rule is founded upon sound

public policy. Those living in the marriage relation should not be compelled or allowed to

betray the mutual trust and confidence which such relation implies1.

The ban applies to all kinds of communications that may take place between a man

and his wife2. In an action, for example, involving adultery the woman's husband was called

as a witness and asked if he had any conversation with his wife in relation to the matter. The

Court prevented such conversation from being disclosed. It must remain stamped with the

seal of confidence. It cannot be supposed that a husband and wife would be willing to discuss

such a subject in the presence of others. Letters and written communications between husband

and wife are equally protected from disclosure. In a case before the Supreme Court,3 the

accused was on trial for murdering his neighbour. His wife was summoned as a witness. She

stated that her husband told her that he would give her ornaments. She then asked him where

he had gone so early in the morning and he replied that he had gone to the middle house (the

house where the deceased lived) to get them. This conversation was held to be irrelevant

under Section 122

In a Bombay case there was prosecution for murder. One of the wives of the accused

happened to be present at the time when the offence was committed. The prosecution wanted

to prove some statements made by the accused to his wife. The statement was not allowed

tobe proved through the mouth of the wife.4 Thus, though the wife is a competent witness, she

is not compellable. A man was charged with wounding a woman with intent to do grievous

bodily harm. He married her after the alleged offence and two days before the trial. At the

trial the wife indicated that she was unwilling to give evidence, but the judge compelled her to

do so and her husband was convicted. The House of Lords held that the wife was not

compellable and her husband's conviction would not stand.5

1 Stiliman v. SIillman, 115 Mis, C. 106, 107 : 187 N.Y.S. 383, cited RICHARDSON ON EVIDENCE (pp. 453-54); Compellability andPrivileges. Three Problems, Cowen and Carter, ESSAYS ON THE LAW OF EVIDENCE, 219.

2 The privilege or prohibition does not extend to a mistress, Shankar v. State of T.N., (1994) Cri L.J. 3071

3 Ram Bharosny v. State of U.P., A.I.R. 1954 S.C. 704.

4 Ramchandra Shankershet v. Emperor, A.I.R. 1933 Bom. 153.5 Hoskyn v. Metropolitan Police Commr., (1978) 2 W.L.R. 695 (H.L.); noted. (1978) 94 L.Q.R. 321.

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Protection when not available

The privilege admits of certain exceptions also. It is not every communication which is

exempt from disclosure. The exceptions are as follows:

1. Acts apart from comnunications

A wife can testify as to what her husband did on a certain occasion though not as to

what he said to her. The best authority is the decision of the Supreme Court in Rani Bharose

v. State of U.P.1

The accused was on his trial for murdering a neighbour for the purpose of robbing

some ornaments and then to present them to his wife. While presenting them to his wife he

said that he had gone to the middle house, (where the deceased lived) to get them. His wife

told the Court that she saw one early morning her husband coming down the roof. He -then

went inside the Bhusa Kothari, (fodder store) and had a bath. He put back the same clothes

and came to her to present the things.

VENKATARAMA AYYER, J., held that what the husband said to his wife was not

admissible, but she could testify as to his conduct.

The conduct of a spouse is not necessarily marital matter. If evidence of is non-marital

conduct can be given by the wife, so should be true of non-marital communications. Ordinary

conversation or letters relating to business should not be regarded as privileged. 'A letter from

a husband to his wife in which he chronicled the weather, his daily doings, and his efforts to

find a summer place for the family and, incidentally, acknowledged a debt which he owed to

his wife's mother was held not to be a confidential communication.2 A doctor husband's

medical advice to his wife has been regarded to be non- confidential, and so also posting of

letters by a wife at her husband's biddings.3

2. Evidence by third persons

Communications or conversations between husband and wife taking place in the

presence of a third person, or when overheard by a third person, can be testified to by the

third person The privilege is that of the parties to marriage, and not of others.

1 A.I.R. 1954 S.C. 704.

2 Norris v. Lee, 136 App. Div. 686 : 121 N.Y.S. 512 (U.S.). cited R1CHARDSONON Evidance, p. 857 (1948).

3 Norris v. Let', 136 App. Div. 686 121 N.Y.S. 512, cited, RCHARO5ONON Evioixc p857.

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In Queen-Empress v. Donoglutel 4the question was whether a communication sent by

the accused to his wife which was recovered by the police during investigationwhiie making a

search could be proved by the prosecution. It was held that it could be relied upon by the

prosecution as the wife was not being examined in the case and was neither compelled to

disclose nor being permitted to do so. In a Madras case, 5a confession was made by a man to

his wife in the presence of three other persons. The Court allowed the confession to be proved

through those other persons but not through the wife.

Where a confidential communication is passed on by a spouse to a third person, may,

in such cases, the third party be allowed to give evidence of it? It has been suggested that if

such third party is allowed to testify, it would make a mockery of the privilege. All that a

party to the marriage has to do to defeat the privilege is to pass on the communication to a

third person In the words of WJGMORE3

While a third person overhearing a confidential communication may testify to it, yet,

as to documents, letters, etc., coming into the possession of a third person a distinction should

obtain i.e., if they were obtained from the addressee spouse by voluntary delivery, they should

still be privileged (for otherwise the privilege could by collusion be practically nullified for

written communications), but if they were obtained surreptitiously or otherwise without the

addressee's consent the privilege should cease.

In a Kerala case, certain letters written by a man to his wife containing matter

defamatory of her father were passed on by her to her father, who wanted to prove them. But

the evidence of them was rejected.4 The Supreme Court, however, overruled the decision.5

In an English case, on the other hand, the mate of a ship who committed murder on

board of the ship, wrote a letter to his wife confessing to the crime, and gave it to one of his

colleague for posting it, but it was, instead, passed to the police, the letter was held to be

inadmissible.6

3. Waiver of Privilege

Evidence of a privileged communication can be given by a spouse with the consent of

4 I.L.R. (1899) 22 Mad. 1.

5 Appu v. State, A.I.R. 1971 Mad. 194.

3 WIGMORE on Evidence, 3rd ed., Sec. 2339.4 TJ. Ponnan v. M.C. Verglzese, A.1.R. 1967 Ker. 228

5 M.C. Verliese v. T.J. Ponnan, A.I.R. 1970 S.C. 1876.

6 Rumping v. Director of Public Prosecutions, (1862) 3 All E.R. 256.

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the party who made the communication or with the consent of his representative in interest.

This is known as waiver of the privilege. Waiver may take place by reason of an advance

consent to the disclosure or by the fact that the husband or the wife has gone to the witness-

box to testify and the other spouse has not in good time objected to the disclosure.

4. Crimes or suits between, married persons

The last words of section 122 clearly recognise this exception by providing that such

communications may be disclosed in suits between married persons or proceedings in which

one married person is prosecuted for any crime committed against the other. If a husband is

being prosecuted for an offence which he has committed against his wife, the wife may

disclose any communication made to her by the husband and which is relevant to the matter

in question.1

Such communications remain protected even after the dissolution of marriage. But

those made either before marriage or after its dissolution are not protected.

S. 123. Evidence as to affairs of State.No one shall be permitted to give any

evidence derived from unpublished official records relating to any affairs of State, except

with the permission of the officer at the head of the department concerned, who shall give or

withhold such permission as he thinks fit.

Unpublished official records

Section 123 protects unpublished State records from being disclosed. The document

must be related to the affairs of state and its disclosure must be against affairs of state or

against public interest.2

Unpublished State records are not permitted to be disclosed. The only exception that

they may be disclosed with in permission of the head of the department concerned. The head

shall have an absolute discretion to give such permission. The act of granting or refusing

permission should not ordinarily be questioned in the court but the trend of judicial authority

1 Narendra Nat h Mukerjee v. State, A.I.R. 1951 Cal. 140.

2 People's Union for Civil Liberties v. Union of india, A.I.R. 2004 S.C. 142: (2004) 2 S.C.C. 476.

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is that this section shall be read along with section 162. When read together, the effect is that

the final decision whether the permission should be granted or not should be with the court 1.

Section 162 provides that when a person has been summoned to produce a document he

should produce it even if he has any objection to its production and the court shall decide the

matter of his objection. Apparently it seems that this section was not meant to cut down the

privilege or protection from disclosure that section 123 affords to unpublished State records.

If the court can decide whether such records should be produced or not, it means that the

court can compel their production, whereas the section provides that "no one shall be

permitted.2 The usual method of claiming the privilege is by filing an affidavit on behalf of

the Department. The affidavit has to state that the document in question has been carefully

read and examined and the Department is satisfied that the disclosure would not be in public

interest. The court should be convinced by a statement of reasons for the Departmental

decision. If the court is satisfied, it will lend support to that decision by granting the privilege

in question. If the court is not satisfied by the Statements in the affidavit, it may call the Head

of the Department to appear in person and to face questions on the subject. After looking at

the nature of the document, the grounds for the claim of the privilege, and the totality of the

circumstances, the court decides the question of ordering the production or not.

Where a party sought production of the income-tax return of the opposite party but the

court refused it by saying that the return was a privileged document, it was held on appeal that

it was for the Income Tax Commissioner to claim privilege when the document is summoned

from him and not for the Court itself to take a decision without claim of privilege.3

The Supreme Court has laid down that where the compulsory retirement of an officer

has been challenged alleging specific acts as main fide the State cannot claim any privilege

from producing his service record. The court said "Ordinarily, the service record of a

Government servant in a proceeding of this nature cannot be said to be a privileged document

which should be shut out from inspection. 4In the appointment of the President of the

1 See State of Bi/zar v. Kasturbhai Lalbhai, A.I.R. 1978 Pat. 76; T. Chin, Documents on Affairs of State' as Evidence, 21 Malaya L.R. 24.See also Pan American World Airuij Incorporated's Application, (1992) 3 W.L.R. 191 (C.A.), a Crown servant who investigated an air crash

on behalf of the Crown was not compellable to give evidence of the result of his investigation till his report was published by the Crown.

C.B.L v. Kuinher luquir Commission, (1995) Cri L.J. 3197, case diaries carrying the names of certain informers protected from disclosure,

otherwise their life would be endangered. Bookbinder v. Tebbi (No. 2), (1992) 1 W.L.R. 217, public interest immunity applies to

investigations carried out by the Audit Commission in relation to documents and to the giving of testimony that might disclose the identity ofthe informants.

2 Dinbai v. Dominion of India, A.I.R. 1951 Born. 72; V. Dasan v. State of Kerala, A.I.R. 1965 Ker. 63.

3 Debasis Sohu v. Nabeen Chandra 'Sohu,, A.I.R. 2002 Ori. 211.

4 State of U.P. v. Chandra Mo/ian Niam, (1977) 4 S.C.C. 345.

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Appellate Tribunal of Customs, Excise and Gold Control, the Government was allowed to

claim the privilege in respect of the relevant file which contained papers and noting about the

formulation of the Government choice.1 The Supreme Court2 has also held that

correspondence between the Law Minister, the Chief Justice of a High Court, the State

Government and the Chief Justice of India and the relevant notings made by them relating to

the non-appointment of an additional judge for a further term or the transfer of a High Court

judge cannot be said to be privileged from disclosure. The Court was of the view that injury

to public interest which is likely to result from their disclosure would be far less than the

injury which would arise from the suppression of such information. Article 74 of the

Constitution of India provides that the advice tendered by the Council of Ministers to the

President is protected against judicial scrutiny. In reference to this the Court said that the

material on which the advice is based cannot be said to have become a part of the advice and,

therefore, is not protected from disclosure. In this respect the Supreme Court overruled its

own earlier decision,3 where it was held by a majority that the report of the Public Service

Commission on which the advice of the Council of Ministers to the Governor was based was

a part of the various steps in the ultimate preparation of the advice and was as mticb protected

from disclosure as the advice itself.

These decisions of the Supreme Court have virtually nullified the provision in S. 123

of the Evidence Act. The function of considering whether the document dealing with the

affairs of the State is fit to be produced before the Court or not seems to have been assumed

by the Court, whereas the section says that the head of the department shall give or withhold

permission as he thinks fit. The opinion of the Supreme Court that the groundwork for the

preparation of the advice is not protected and only the advice is protected is also self-

defeating. If the background notings on the basis of which the advice was formulated have to

be disclosed, what secrecy remains in the advice itself?

The interest in confidentiality has to be balanced against public interest in all the

relevant evidence being available to the court.4 The only justification of the privilege is that

1 R.K. lain v. Union of India, A.I.R. 1993 S.C. 1769. The appointment was in accordance with the' amended Rules. The merits of theappointee and the reasons behind the amendment were not permitted to be examined in a public interest litigation.

2 S.P. Gupta v. President of India, A.LR. 1982 S.C. 149. The court added that the principle of English law as to the Crown privilege orpublic interest immunity are not applicable in India. Here the only statutory protection is that afforded by Ss. 123 and 162.

3 State of Punjab V. Sod/il Sukhdev Singli, A.I.R. 1961 S.C. 493 : (1961) 2 S.C.R. 371 : (1961) 2 S.C.J. 691; see also Sewakram Sobhani v.R. K. Koranjia, (1981) 3 S.C.C. 208.

4 See Geore Mat!,ew v. Union of India, (1997) 10 S.C.C. 537, the proper approach to the matter is to file a reply on affidavit claiming

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the production of the document would not be in public interest, e.g., injurious to defence,

good diplomatic relations or proper functioning of public services.1 Public welfare is the

highest law.2 The Government has to make out a case of the involvement of public interest

from the fact of disclosure.3 The question as to whether any particular document relates to the

affairs of the State has to be determined in each case on the basis of the relevant facts and

circumstances adduced before the court.4

Cabinet notes and documents relating to production of such notes have been held to be

privileged.5Documents filed by a tax payer before the tax authority are not a part of the State

affairs so as to enjoy the privilege of this section6. Statements of witnesses in the course of an

inquiry into the conduct of certain officers are not privileged from being required to be

disclosed in a subsequent proceeding against the officers concerned.7 In a matter arising out

of the demolition of certain State Governments,8 the. Supreme Court seems to have revitalised

the privilege. AHMADJ, J., Observed: 'Since reasons would form part of the advice, the court

would be precluded from calling their disclosure but that Article 74(2) ofthe Constitution is

no bar to the production of all the materials on which the ministerial advice was based Of

course the privilege available under the Evidence Act, Sections 123 and 124 would stand on a

different footing and can be claimed under Article 74(2) of the Constitution. 9

Where the Court finds that points noted in a Government file are of privileged

character, they cannot be used in support of a contempt or defamation case.10

The marking on a document that it is confidential is not sufficient in itself. Privilege

has to be shown in substance and not in remarks. It is also not a good ground that the

disclosure may bring about questioning in the Legislative Assembly or may generate public

privilege (in this case privilege as to an unpublished committee Report) and the question would then be decided by the court by hearing both

sides. Union of India v. N.R. Ajzvani (Major), (1996) 9 S.C.C. 406, no prescribed pleading for claim of privilege

1 Tukaram v. King Emperor, I.L.R. 1946 Nag. 385.

2 State of Punjab v. S .S. Singh, A.J.R. 1961 S.C. 493.

3 State of Orissa v. Jagannath, A.I.R. 1977 S.C. 2201. Sunder/al Patwa v. Union of India, A.I.R. 1993 MY 204, no secrecy of the factswhich made the basis of President's rule

4 State of Punjab v. S .S. Sing/i, A.I.R. 1961 S.C. 493.

5 Doypack Sitem, P Ltd Union of India A I R 1988 S.C.782

6 Venkatachella Cht'tlinr v. Sainpathit Chettiar, (1908) 32 Mad. 62.

7 Harbans Se/wi v. Emperor, (1912) 16 C.W.N. 431.8 S.R. Bommai v. Union of India, A.I.R. 1994 S.C. 1918 at 1954

9 The learned judge expressed his dissent from the decision in State of Rajasthan v. Union of India, A.I.R. 1977 S.C. 1361 : (1978) 1 S.C.R.1. Article 72 provides that "the question whether any, and if so what, advice was tendered to the President shall not be inquired into by anycourts VERMA J., [at page 1957] was also of the same view. He said "Article 74(2) is no bar to the production of the materials on which the

ministerial advice is based for ascertaining whether the case falls within the justiciable area and acting on it when the controversy is found

justiciable, but that it is subject to the claim of privilege under Section 123 of the Evidence Act". As and when privilege against disclosure is

claimed, the courts will examine such claim within the parameters of Section 123 on its merits.

10 State of Bihar v.Kripalu Sliankar, (1987) 3 S.C.C. 34 A.I.R. 1987 S.C. 1554.

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criticism or that administrative inefficiency would be exposed or liability to compensation

may arise or that the weaknesses of the defences taken by the Government may become

known to the opposite party. The impacts of the disclosure on the Head of the Department or

Minister-in-Charge or upon the party in power are no considerations for supporting the

privilege.1

Muntnkliab, which means a document declaring the rights of successors in survey

records. It has been held to be equivalent to a judgment in rem and a public document. Supply

of copies of such documents cannot be refused by the authorities under the Right to

Information Act, 2005.2

S. 124. Official communications.No public officer shall be compelled to disclose

communications, made to him in official confidence, when he considers that the public

interest would suffer by the disclosure.

The section gives a privilege to public Officers to refuse to disclose matters which are

brought to their knowledge in official confidence. The requisites of this privilege are that

there should be a public officer; a communication has been made to him in official confidence

and that he has the discretion to refuse its disclosure on the ground that public interest would

suffer by the disclosures.

There is a privilege which attaches, under 'certain circurnsLxwes, to communications

made to public officers. State secrets, or matters which govern the administration of

Government should not be disclosed, sire to reveal them might be highly prejudicial to public

interest. Therefore, Communications relating to affairs of State are generally held to be

privileged, and the officers may refuse to disclose them.3

The extent to which the State should make the use of this privilege has been stated by

the Supreme Court in a number of cases. One among them Dilbagh Rai larry v. Union of

India, 4 where the Supreme Court ridiculed fl action of the State in trying to defend the suit of

a railway employee, "a small man, by urging a mere technical plea which has been persued

1 State of Punjab v. S.S. Singli, A.I.R. 1961 S.C. 493; Amar Chand Butall v. Union of India, A.I.R. 1964 S.C. 1658; K. Ravikumar v.Bangalore University, A.I.R. 2005 Kant. 21, authorities cannot flatly deny any document on the ground of confidentiality or secrecy. Denial

of letter of appointment was held to be improper. Freedom of Information Act, 2003, Sections 3 and 4.

2 Public Information Officer v. A.P. Information Commissioner, A.I.R. 2009 A.P. 73.

3 Richardson, THE LAW OF Evioec,; 461 (7th ed., 1948). Where the Income Tax assessment record of a particular assessee wassummoned by the court, this privile ceased to apply. Da',i Ran, Pondi La! v. Trilok Chand Join, A.I.R.1992 S.C. 990.

4 1974 (3) S.C.C. 554 A.I.R. 1974 S.C. 130.

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right upto the summit Court here and has been negatived. Instances of this type are legion. 1

The Court advised the State to act as a virtuous litigant and concede just demands most

willingly and not to take the shelter of hyper technicalities like the privilege of refusing the

protection of a document. In Madras Port Trust v. Hymanshu International2, the Supreme

Court observed that it does not behove the State Government to keep back even any such

document, the production of which may possibly not be in the interest of the State and yet it

may be necessary for a just decision of the case. Acting upon these principles the Madhya

Pradesh High Court laid down that the communication of the State to the Accountant General

about new pay scales of teachers could not be regarded as a privileged communication and the

claim of a teacher to the new scale could not be resisted by just refusing to produce the

communication.

The State has not been permitted to claim any privilege as to what sanitary measures

have been taken by it. People have a right to know how their State is functioning and why it is

withholding information on matters which have nothing to do with sovereignty or State

secrets.3

The Bombay High Court explained the scope of the privilege in the following words.4

"Where a public officer declines to produce certain documents and claims privilege

under Section 124, it is for the court at the first instance to satisfy itself that the documents

relates to any affairs of the State and that their production would be detrimental to public

interest. The mere contention that their production is likely to create prejudice against the

State is not a sufficient reason for non-production. The Court has to consider whether the

document really relates to State affairs. The contention on behalf of the State is not in itself

sufficient.

In this case the society had received certain foreign contributions. The Government

prohibited the society under the Foreign Contributions (Regulation) Act from accepting such

contributions. The State refused to disclose the document on the basis of which the opinion

for prohibitory order was formed. The affidavit filed on behalf of the State satisfied the

broader requirements of Section 124. An examination of the document by the Court indicated

1 See The Judgment of Krishan Iyar J.2 AIR. 1979 S.C. 1144

3 . L.K. Koolwa! v. Stale of Rajasthan, A.I.R. 1988 Raj. 2; Sathyanarnyana Bros. P. Ltd. v. lit Water Supphj and Drainage Board, A.I.R.2004 S.C. 651 :(2004) 5 S.C.C. 314, a docunumL privilege against disclosure not established, still not produced, arbitration awmd set-aside.

4 Watch Tower Bible and Tract Society of India v. Union of India, A.I.R. 2002 Born. 83 at P. 85. Following the decision of the SupremeCourt in Chamanlal v. State of Punjab. A.IR 1970 S.C. 1372.

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the possibility of injury to public interest from disclosure. The Court accordingly said that the

plea of privilege was well founded and the disclosure would have led to great public injury.

S. 125. Information as to commission of offences.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.

Explanation.'Revenue Officer" in this section means any officer employed in or

about the business of any branch of the public revenue.

Sources of information as to offences

The section is intended to encourage people to give information about offences by

protecting the source of information, for otherwise, no one would like to give such

information. The section also enables police officers, etc. to maintain secrecy about the

sources of their information. No magistrate or police officer can be compelled to disclose how

and from whom he got information about the commission of an offence. Similarly, no

revenue officer can be compelled to disclose how and from whom he got information about

the commission of an offence against the public revenue. This is called public interest

immunity from disclosure which is very much necessary for promoting detection of crime. It

is, therefore, well established that the police may suppress the identity of informants in the

interest of combating crime. Accordingly, where a person was prosecuted for selling

controlled drugs and the police were able to nag him by posting its secret agents in the homes

of cooperative private residents, the prosecution was allowed to maintain the secrecy of such

observation posts1. It is as important to secure the cooperation of the public in providing

suitable observation posts as it is necessary to encourage the public to come forward with

information.

Fourthly, section 129 provides that a person cannot be compelled to disclose any

confidential communication which has taken place between him and his professional legal

adviser.

S. 126. Professional communications.No barrister, attorney, pleader or vakil shall

1 R. v. Johnson, (1989) 1 All E.R. 121. See also R. v. Ranking, (1986) 2 All E.R. 566.

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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 thatnothing in this section shall protect from disclosure

1) any such communication made in furtherance of any illegal purpose,

2) 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.

Explanation.- The obligation stated in this section continues after the employment has

ceased.

Illustrations

a) A, a client, says to B, an attorney"I have committed forgery and I wish you to

defend me."

As the defence of man known to be guilty is not a criminal purpose, this communication is

protected from disclosure.

b) 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.

c) A, being charged with embezzlement, retains B, an attorney, to defend him. In the

course of the proceeding, 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 proceedin, it is not protected from disclosure.

Communications between advocates and client, or professioad

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communications.Communications made by a client to his vakil for purposes of his

professional employment are not permitted to be disclosed.

The prohibition extends to all communications made in confidence pertaining to any pending

or contemplated case or for the purpose of soliciting professional advice.

The reason for this prohibition on disclosure is to encourage litigants to communicate

fully and frankly with their lawyers without any fear that the information given by them can

be passed on to the opponent or to the court. In the absence of this prohibition it would have

been difficult for any body to get the best professional advice.1

This privilege is available subject to a few conditions In the first place the

communication should have been made to a barrister, attorney, pleader or vakil". Now, of

course, it means that the communication should have been made to an advocate. The

expression will include any person who is duly licensed by the State to practice law. The

expression "practice of law" includes, for this purpose, all kinds of legal work, and not merely

appearance in court. Preparation of documents, by which legal rights are secured, advice,

drawing of arguments, preparation of memorandum and articles of a company, drafting of

wills, sale-deeds for disposition of property, etc. are included in legal practice.

Secondly, it is necessary that the communication should have been made by a person

who is related to the vakil as a client. Thus, where a plaintiff's vakil rang to the defendant to

give him friendly advice and the defendant made damaging admissions, it was held that the

vakil could give evidence of what the defendant said because he was not the defendant's

vakil.2 If the relationship of vakil and client exists, the privilege arises and also extends to any

clerk, stenographer or any other person employed by the vakil for the purpose of his

professional work. It is not necessary for enjoying this protection that any fee should have

been paid to the vakil or that he should have accepted the brief. Even if the vakil rejects the

case, the communications made to him must remain protected. But a communication made to

a vakil after he has refused to accept the assignment is not protected.

1 The reasons for this privilege which have been stated in a number of works have been collected and cited by the Madras High Court in itsdecision in D. Veerasekarun v. State of T. N., 1992 Cr. L.J. 2168 (Mad.), where the advice of an advocate to his client to remain absconding

was not allowed to be cited in the prosecution of the advocate under the Terrorist and Disruptive Activities Act, 1987. V. Muraleeditarain v.

N.J. Antony, 1985 Cr. L.J. 633; Justice Sundaram Aiyar, Professional Ethics, 635; Menaka Sanjay Gandhi v. Ram Jethmalani, A.I.R. 1979S.C. 468 1979 Cr, L.J. 458; K.V. Krishnaswami Aiyar, Code of Professional Ethics as formulated In, the American Bar Association in his

lectures on Professional Conduct and Advocacy, 103; C. P. Harvey, Advocate's Devil, 7; Lawrence v. Campbell (Courts of Chancery) Vol.

XXVIII at 781; Communications between the counsel of the assured (claimant before the Motor Accidents Claims Tribunal) and the

Insurance Company have been held to be within the protection of the Section. See, R. Rantalingasu v P. R. Thakur, A.I.R. 1982 Delhi 486.

2 Rossen v. Blean, 131 N.E. 177 at p. 183 30 N.E. 5 (U.S.).

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The scope of the protection is that it will apply only to such communications as have

been made for the purpose of professional employment and also to the advice given by the

vakil. It also applies to the contents or condition of any document which came to his

knowledge in the course of such employment. "The principle is of very limited character. It

does not protect all confidential communications such as a man must necessarily make in

order to obtain advice, even when necessary for the protection of his life or his honour, to sy

nothing of his fortune. There are many communications which must be made, because

without them the ordinary business of life cannot be carried on, and yet they are not protected.

The communication made to a medical man, whose, advice is sought by a patient. is not

protected....; communications made to a friend with respect to matters of the most delicate

nature, on which advice is sought with respect to a man's honour or reputation, are not

protected. Therefore it must not be supposed that there is any principle which says that every

confidential communication which, in order to carry on the ordinary business of life, must

necessarily be made is protected. The protection is of very limited character. It is a protection

to the obtaining of the assistance of lawyers, as regards the conduct of litigation or the rights

of property. It has never gone beyond the obtaining of legal advice and assistance; all things

reasonably necessary in the shape of communication to the legal advisors are protected from

production or discovery, in order that legal advice may be obtained safely and sufficiently..."

One of the propositions stated in the CODE OF PROFESSIONAL ETHICS as formulated by

the American Bar Association says. 1 air and honourable means to present such defences as

the law of the land permits, to "A lawyer may undertake with propriety the defence of a

person accused of crime although he knows or believes him to be guilty, and having

undertaken he is bound by all f the end that no person may be deprived of life or liberty but

by due process of law." Applying this statement to the facts of the case before it the Madras

High Court held that an unsigned and undated letter believed to be written by the accused

advocate to his client who was supposed to be a terrorist, advising him to remain absconding

and which was intercepted could not be used against the advocate in evidence.

The case in which this statement appears, the Court of Appeal came to the conclusion

that a communication made by a third person to a party's lawyer was not privileged even

though, it was made on the request of the solicitor and for the very purpose of giving an

1 Cited by the Madras 1-ligh Court in D. Veerakaran v. State of T. N., 1992 Cr. L.J. at 2181 picking it up from K. v. Krishnaswami Aiyar,Professional Conduct and Advocacy, 103.

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appropriate advice to the client.1 Where the complainant sent a notice through his advocate,

and the advocate on the opposite side sent a reply to the complainant's advocate containing

defamatory remarks, the Kerala High Court held that it did not amount to publication for the

purposes of the tort or crime of defamation.2

In a Bombay case,3 the law officer of the Municipality prepared a note for the purpose

of enabling the Municipal Commissioner to send a reply to an enquiry from the State

Government. The note indicated that the occupants of an under-bridge area were sought to be

evicted for reconstruction of the bridge, whereas in fact their eviction was not necessary for

that purpose. This note was held to be not privileged from disclosure.

The protection will remain in force even after the relationship of client and lawyer has

come to an end, but does not apply to communications made thereafter. One of the

illustrations appended to the section is an embodiment of the simple situation where a person

commits a crime and engages a lawyer to defend him and tells him the truth The lawyer is not

permitted to disclose the matter.

An advocate was allowed to be summoned for proving that a notice was sent to the

defendant on behalf of his client. Since the contents of such a document are no longer

confidential because it was already communicated and were no longer merely in the

knowledge of the lawyer and his client, professional privilege was not allowed to be claimed.4

Mukhtear.The restrictions improved by this section extend also to

tcommunications made to Mukhtears when acting as pleaders for their clients.5

Right to Information Act, 2005

The application of Section 126 for protecting communications between lawyer and

client is not obliterated by the RTI Act and has to be given effect to notwithstanding the RTI

Act.6

EXCEPTIONS

1 Per JIssrL, M. R. in Wheeler v. Le Merchant, (1881) 17 Ch. D. 675.

2 P. R. Rama Krishnan v. Subbaraniuza, A.I.R. 1988 Ker. 18.

3 Bombay Municipality v. Vijay Metal Works, A.I.R. 1982 Born. 6; Superintendent and LR v. S. Bhowmick, A.LR. 1981 S.C. 917, notesmade by a lawyer of statements of witnesses are within the range of protection.

4 P.O. Aiinnthasaya,iwn v. Mira1a Sathiraju, A.I.R. 1998 A.P. 335.5 Abbas Peada v. Queen-Empress, (1848) 25 Cal. 736.

6 Venkatachalam v. Goviudan Chettiar, A.I.R. 2010 NOC 699 (P. & H.)

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The privilege is subject to a few exceptions.

Communications made in furtherance of illegal purpose

Firstly, communications made in furtherance of an illegal purpose are not protected A

client consulted a lawyer for the purpose of drawing up a bill of sale which was alleged to be

fraudulent. The communication was held to be not privileged, for the consultation was for an

illegal purpose.1 "The question is" the court said, "whether, if a client applies to a legal

adviser for advice Intended to facilitate or to guide the client in the commission of a crime or

fraud, the legal adviser being ignorant of the purpose, for which his advice is wanted, the

communication between the two is privileged'. We expressed the opinion at the end of the

arguments that no such privilege existed. If it did, the result would be that a man intending to

commit a treason or murder might safely take legal advice for the purpose of enabling himself

to do so with immunity, and that the solicitor to whom the application was made would not be

at liberty to give information against his client for the purpose of frustrating his criminal

purpose ....."In each particular case the Court must determine upon the facts actually given in

evidence, whether it seems probable that the accused person may have consulted his legal

adviser, not after the, commission of the crime for the legitimate purpose of being defended,

but before the commission of the crime, for the purpose of being guided or helped in

committing it".

Illustration (b) appended to section 126 is on this point. A client requests a lawyer to

bring an action on the basis of a forged deed. This is a communication in furtherance of a

crime and is, therefore, not protected.

Crime or fraud since employment began

Secondly, if a lawyer finds in the course of his employment that any crime or fraud

has been committed since the employment began he can disclose such information. The third

illustration is relevant to this point. A person charged with embezzlement engages a lawyer

for his defence. The lawyer finds an entry in the account-books of the accused debiting him

with the amount which he is alleged to have embezzled and that the entry was not there when

he first saw the account-books. Since this is a subsequent fraud the lawyer can disclose it.

Disclosure with express consent of client

1 R. v. Cox. and Railton, (1884) 14 Q.B.D.153 15 Cox. C.C. 611.

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Thirdly, such communications can be disclosed with the express consent of the client.

The prohibition is for the benefit of the client, and he may waive it, if he deems it advisable.

The waiver should be express. The death of the client does not amount to waiver and since the

client alone could have waived, his death puts the matter beyond waiver and it must for ever

remain protected. Once a client has revealed in court a part of the communication between

himself and his solicitor regarding a transaction in issue, he thereby waives his privilege with

respect to all communications connected with the same transaction.1

Information falling into hands of third person

Fourthly, if the communication is over-heard by a third person, he may be compelled

to disclose it. The prohibition works against the lawyer, but not against any other person.

The scope of this exception was examined in Webster v. James Chapman & Co.2

It was an action by an employee against his employers for personal injuries. The

plaintiff commissioned, through his solicitors, a report from consulting engineers. The report

dealt with the method of unloading lorries at the defendant's premises and was partly

unfavourable to the employee's claim. Through a clerical error the solicitors happened to send

the report to the employer's solicitors. When they discovered their mistake, the employee's

solicitors sought an order for the return of the report and for restraining its use in the

proceedings.

The court had to face what appeared to be two irreconcilable decisions. In one of

them3 the decision was once a document subject to a legal privilege falls into the hands of a

third party, the privilege no longer attaches to it and it may be adduced in evidence. In the

other4 the decision was that a client whose privileged documents fell into the hands of a

stranger may obtain an injunction for the return of the documents and restrain the stranger

from their use in any legal proceedings. In still a third case,5 the Court of Appeal held that

both decisions were right. The only crucial point, in the view of the court, was that the party

who desires the protection must seek it before the other party has adduced the confidential

communication in evidence or otherwise relied on it at trial. An injunction was not issued to

1 Konigsberg, Re, (1989) 3 All E.R. 289.

2 (1989) 3 All E.R. 939

3 Calcraft v. Guest, (1898) 1 Q.B. 759.4 Lord Ashburton v. Page, (1913) 2 CR 469.

5 Goddard v. Nationwide Building Society, (1986) 3 All E.R. 264

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restrain the use of the document because the employee obtained a second report and the

employer would have been prejudiced in his defence if he were not permitted to rely on the

first report.

In this kind of situation two kinds of right become involved. One is the right of

privilege and the other that of confidence. Legal professional privilege confers immunity from

the compulsory process of obtaining evidence. About this right the principle is that when a

privileged document is no longer in the hands of those entitled to claim immunity, there is

nothing to prevent its use in evidence. But if a person has a right to confidence in a document,

such person can protect his right by injunction. There is, however, no automatic right to such

an order. Indeed, it is a matter of first principle that injunctions are not granted as a matter of

right but only in the exercise of discretion on the merits.

The way in which the discretion should be exercised was outlined in Guinuess Peat

Properties Ltd. v. Fitzroy Robinson Partnership.1 The court said that once a privileged

document has been inadvertently disclosed in discovery proceedings, it is generally too late to

claim injunctive relief. The court indicated that the courts would normally give such relief if

disclosure was obtained by fraud or trick. But if the document came into the possession of the

other side not through trick or fraud but due to a mistake or carelessness on the part of the

party entitled to the document or by his advisers, the balance of convenience will be very

different from the balance in a fraud case.2

Lawyer's suit against client

Lastly, if the lawyer himself sues the client for his professional services, he may

disclose so much of the information as is relevant to the issue.

The privilege is not available in respect of documents which have already been put on

record.3

S. 127. Section 126 to apply to interpreters etc.The provisions of section 126

shall apply to interpreters and the ckrks or servants of barristers, pleaders, attorneys and

vakils.

1 (1987) 2 All E.R. 716.

2 Even where the confidential material has come out through judicial error, its use may not be restrained. R. v. Governor ofPesionvijle Prison, ex. p. Osman, (1939) 3 All ER 701.

3 Daya Shunker Dubey v. Subhas Kuniar, 1992 Cr. L.J. 319 (All.).

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Position of interpreters etc.

The section makes it clear that the prohibition contained in section 126 applies also to

interpreters, and the clerks and servants of the lawyer.

They are also likely to come to know of the confidential information relating to

litigation. A paid or salaried employee who advises his employer on all questions of law and

reldting to litigation must get the same protection of law. Communication made in official

confidence by his employer to him for the purpose of seeking legal advice or vice versa

should get protection of sections 126 and 129. 1Where an advocate dictated a matter to his

clerk containing defamatory remarks in reply to a notice from the advocate of the complainant

and sent it to the advocate, the Kerala High Court held that this did not amount to a

publication. 'The clerk of, a lawyer, in the professional sphere, has to maintain confidence

regarding matters conveyed to him. If a notice, or a letter or even a pleading is dictated to a

lawyer's clerk, it does not go beyond the lawyer's professional range. The fact that the clerk,

as a different human being, comes to know of the contents of the notice cannot make it a

publication to a third person."2

S 128 Privilege not waived by volunteering evidence.If any party to a suit gives

evidence therein at his own instance or otherwise, he shall not be deemed to have consented

thereby to such disclosure as is mentioned in section 126, and if any party to a suit or

proceeding calls any such barrister, pleader, attorney or vakil as a witness he shall 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 128 also deals with the same matter. It provides that If the party making the

communication himself 'or at his own instance or otherwise gives evidence of the matter

covered by the communication, that does not amount to a waiver of the privilege- Even if

such party calls the lawyer as a witness, it will not amount to a consent to disclosure. But if he

questions the lawyer on the very matter of the communication that will amount to consent and

by reason of it the lawyer can disclose the communication.

1 This statement occurs in Bombay Municipality v. Vijay Metal Works, A.I.R. 1982 Born. 6 at p. 8, citing L. Tirtli Ram v. is Highness,Govt. of!. & K, A.I.R. 1954 J. & K. 1 and Cro,npton Lid. v. Custom & Excise Comitirs, (1972) 2 Q.B.10 at p. 129 (1972) 2 All E.R. 353

(1972) 2 W.L.R. 835 (C.A.).

2 P.R. Raniakrishnan v. Sithramn:a, A.I.R. 1988 Ker. 18.

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Non-compellable witnesses

In addition to the communications noted above which are not permitted to be

disclosed even if the witness wants, there are certain other communications which the witness

may disclose if he so likes, but cannot be compelled to do so. Such a witness is known as a

non-compellable or privileged witness, and the communications privileged from disclosure.

In the first place, it has already been noted that under Section 121 subject to a few

exceptions, a magistrate or a judge cannot be compelled to say anything about his judicial

conduct.

Secondly, section 124 provides that "no public officer shall be compelled to disclose

communications made to him in official confidence, when he considers that the public interest

would suffer by the disclosure". Communication or statements of facts and figures, for

example, made by a person to a magistrate for the purpose of obtaining a solvency certificate,

cannot be compelled to be disclosed. "Public policy demands, and it is a sound doctrine, that

those standing in confidential relation with a judge of a court of record, as a clerk and

stenographer, with regard to statements in proceedings pending before the court, should not

be compelled or allowed to betray the trust and confidence which such relationship implies" 1

Many a private individual have to file documents and returns with public officers and if they

were not privileged from disclosure, it would be difficult to maintain their secrecy.

"Public officer", for this purpose, means any officer performing public functions as

opposed to private duties, for example, the Vice-Chancellor of a University.2

Thirdly, section 125 provides that magistrates and police officers cannot be compelled

to disclose - the sources of their information as to crimes.

S. 129. Confidential communication with legal advisers. 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.

Confidential communications

1 Matter of Colten, 105 Misc. 724, U.S.: Collector of Jaunpur v. Jamana Prasad, (1972) 44 All. 360.

2 University of Punjab, Lahore v. Jnszvant Rai, (1945) 27 Lah, 561

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Section 126 prohibits a lawyer from disclosing matters which have come to his

knowledge from his client for the -professional purpose. Section 129, on the other hand,

places the client beyond the range of compulsion as to matters which have passed between

him and his professional legal adviser. The effect of the section is that a person cannot be

compelled to disclose any confidential communication which has taken place between him

and legal professional adviser.1

But if he offers himself as a witness, he may be compelled by the court to disclose

such matters to the extent to which the Court thinks it is necessary for the purpose of

explaining the evidence which he has given, but not more than that.

Fifthly, section 130 provides that a- person, who is not a party to a suit, but who has

appeared only as a witness, shall not be compelled to produce the title deeds of any property

or any document by virtue of which he holds the property as pledgee or mortgagee or any

document the - production of which might tend to criminate him.

Same solicitor engaged by both sides

It has been held that where a solicitor is employed by two clients in a conveyancing

transaction, the communications concerning the transaction between either of them and the

solicitor are disciosable in favour of the other.2

S. 130. Production of title deeds of witness, not a party.No witness who is not a

party to a suit shall bcompelled to produce his title-deeds to any property, or any document

in virtue of which he h'lds any property as pledgee or mortgagee or any document the

production of which might tend to criminate him, unless he has agreed in writing to produce

them with the person seeking the production of such deeds or some person through whom he

claims.

Title deeds of witness

The section covers three matters. An ordinary witness, namely, a witness who is not a

party, cannot be compelled to produce -

1) his title deeds to any property,

2) any document by which he became the pledgee or mortgagee of any property, and

1 See Bombay Mw:icipaliti, v. Vijay Metal Works, A.I.R. 1982 Born. 6.

2 Konigsberg, Re, (1989) 3 All E.R. 289.

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3) any document which might tend to criminate him.

But he can be so compelled if he has agreed to produce any such documents with the

person seeking its production.

Lastly, section 131 provides that a person who has the possession of a document shall not

be compelled to produce it, which if the document were in the possession of another person

he would be entitled to refuse to produce it.

S. 131. Production of documents or electronic records which another person having

possession, could refuse to produce.No one shall be compelled to produce documents in

his possession or electronic records under his control, which any other person would be

entitled to refuse to produce if they were in his possession or control, unless such last-

mentioned person consents to their production.1

Section 131 was substituted by the Information Technology Act, 2000 for the purpose of

accommodating electronic records alongwith documents. The new section says that no one

shall be compelled to produce documents in his possession or electronic records under his

control which any other person would be entitled to refuse to produce if they were in his

possession or control unless he consents to their production.

The effect of the provision is that if any person is entitled to refuse the production of a

document, the privilege or protection of the document should not suffer simply because it is

in the possession of another. Thus any such person who is in possession is not compellable to

produce it.

S. 132. Witness not excused from answering on the ground that answer will

criminate.A witness shall not be excused from answering any question as to any matter

relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the

ground that the answer to such question will criminate; or may tend directly or indirectly to

criminate, such witness or that it will expose, or tend directly or indirectly to expose, such

witness to a penalty or forfeiture of any kind.Provided that no such answer, which a witness

shall be compelled to give, shall subject him to any arrest or prosecution or be proved against

him in any criminal proceeding, except a Prosecution for giving false evidence by such

answer.

1 As substituted by the Information Technology Act, 2000

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Witness not excused from answering incriminating questions

Where a question put to a witness is relevant to the matter in issue, the witness can be

compelled to answer it and he cannot be excused from answering it simply because the

answer would tend to criminate him or expose him to civil or criminal liability or to a penalty

or forfeiture.

The proviso, however, protects the witness is an important way. It provides that if a

witness has been compelled to give an answer, his answer should not be used to subject him

to any arrest or prosecution; nor the answer can be proved against him in any criminal

proceeding. 'The object of the law is to afford to a party, called upon to give evidence

protection against being brought by means of his own evidence within the penalties of the

law"1 The answers which the witness is compelled to give should not constitute any evidence

against him. But if the answer is false, the witness may be prosecuted for giving false

evidence.

The protection arises only as against answers which a witness is compelled to give and

not as against those which he voluntarily answers without any compulsion. There is a

divergence of opinion among some High Courts as to the meaning of "compulsion". In the

view of the Ailahabad High Court the compulsion of the oath is a sufficient compulsion and,

therefore, no distinction should be made between voluntary and compelled answers. 2 But the

Calcutta and Bombay High Courts have held that there is no protection in reference to

answers which he voluntarily makes without any compulsion. The witness should object to

the question and then if the court compels him to answer it he is entitled to the protection of

the proviso3but he cannot refuse to answer it except at the cost of adverse presumption.

1 Per COCKUURNC.J., in R. Boies, Queen's Bench, (1961) 30 L.J,Q,B. 301 121 E.R. 730.

2 Emperor v. Banari, (1923) 46 All. 234

3 Haider Au v. At'ru Mm, (1905) 32 Cal. 756; Manjaiia v. Sesha Shetti, (1888) 11 Mad. 477; Puddubha Reddi v. Varada,(1928) 52 dad. 232; Ba! Shanla v. Llmarao Amir, (1925) 28 Born. L.R. 1. This protection is also available to a person who iscompelled to give evidence before the Lokayukta (Ombudsman) Rajeudra Mnnubiiai Pate! v. Stale Giijarat, A.I.R. 1992 Guj.10.