ADMISSIBILITY OF PRIVILEDGED

COMMUNICATIONS

EVIDENCE LAW
SUBMITTED TO – SARVESH SIR

Tanisha goswami
1783128, 6th semester
BA ‘B’
 INTRODUCTION

It has been observed that a sound system of the administration of justice should possess three
ingredients, namely a well-planned body of law based on wise concepts of social justice, a
judicial hierarchy comprised of the Bench and the Bar, learned in the law and inspired by
high principles of professional conduct and existence of suitable generation to ensure fair
trial.1 A "privileged professional communication" is a protection awarded to a communication
between the legal adviser and the client. It is out of regards to the interest of justice, which
cannot go on without the aid of men skilled in jurisprudence in the practice of Courts, and in
those matters affecting rights and obligations, which form the subject matter of all judicial
proceedings. If the privilege did not exist at all, everyone would be thrown upon his own
legal resources. Deprived all professional assistance, a man would not venture to consult any
skilled person, or would only dare to tell his counsel half his case. 2 To qualify as a privileged
communication, there are certain conditions that need to be fulfilled. Firstly, the
communication should take place between individuals who are in a protected relationship,
and secondly, the communication should happen in a private setting, and lastly, the
information communicated should not be disclosed to a third party. The following research
paper analyses the admissibility of privileged communications.

1. DEFINING PRIVILEGED COMMUNICATION

In India, Sections 126 to 129 of the Indian Evidence Act, 1872 deal with privileged
communication that is attached to professional communication between a legal adviser and
the client. Section 126 and 128 mention circumstances under which the legal adviser can give
evidence of such professional communication. Section 127 provides that interpreters, clerks
or servants of legal adviser are restrained similarly. Section 129 says when a legal adviser can

1 C.L. Anand, General Principles of Legal Ethics, pg. 39

2 Greenough v. Gaskell (1833)1 Myl. & K. 98 as per Brougham L.C.
be compelled to disclose the confidential communication which has taken place between him
and his client. Section 126 states that no barrister, attorney, pleader or Vakil shall at any time
be permitted to Firstly, disclose any communication made to him by or on behalf of his client
or any advice given by him to his client in the course and for the purpose of his employment;
Secondly, to state the contents or conditions of any document with which he has become
acquainted in the course and for the purpose of his employment.

1.1 TYPES OF COMMUNICATIONS:

Privileged communication is the communication between individuals who are in a protected

relationship by the virtue of which, the details of their communication cannot be disclosed. 3 
Privileged communication exists to protect the disclosure of information during the subsistence of
confidential or protected relationships. These communications are such that they may not be used
as evidence in a court of law against the persons communicating due to the specific nature of their
relationship.4 The Indian Evidence Act recognizes various forms of privileged communication,
namely:

1.1.1 SPOUSAL COMMUNICATION:

Spousal communication refers to the communication between a man and his wife. Any
communication between a married couple is considered confidential. Either party is
disallowed from divulging any such information to any third party made within the confines
of a valid, existing marriage. 5 The origin of this principle may be traced back to English
common law which formalized it in the English Evidence (Amendment) Act, 1853. This
concept has been characterized in Indian Jurisprudence as the embodiment of the
“expectation” of secrecy between spouses and the damage such disclosure may have upon the
familial structure.6

Section 122 however, must be interpreted narrowly because it reduces the scope of
admissibility of evidence which may be crucial to the case of the prosecution. This may be
seen as the rationale for the interpretation of section 122 by Vagyani, J. to mean that only the
words said by a spouse can be treated as privileged communication. If in case a spouse is

3 Black’s Law Dictionary 326 (9th ed. 2009).

4 Namit Halakandi, “Privileged communication”, iPleaders (https://blog.ipleaders.in/privilege-communication-between-
husband-and-wife)
5 Section 122, Indian Evidence Act, 1872
6 S.J. Choudhary v. The State 1985 CriLJ 622
acting or behaving in a particular manner, his activities, deviation from any regular practice
etc are not covered under section 122. This was affirmed when a wife was called on to give
testimony against her husband in a murder case where-in she was allowed to testify as to his
conduct but not to the conversation that ensued between the spouses. 7

Additionally, the Supreme Court has also clarified that any and all communication between
spouses must remain confidential if the communication happened during the subsistence of
the marriage. Whilst determining the admissibility of the evidence brought by the way of
spousal testimony, the date of the communication must be the deciding parameter and not the
date when the communication was sought by the court. In the event that said communication
happened during the marriage but now the marriage has subsided, the communication would
still be privileged.8 Notably, the exception to the provisions of section 122 is when the dispute
is between the married parties. The parties may be allowed to bring communication between
them as evidence.9

1.1.2 PROFESSIONAL COMMUNICATION:

Professional privileged communication refers to the communication between a legal advisor

and his client. The communication between two such persons in furtherance of the
professional employment of the advisor is protected and the legal advisor cannot be made to
disclose such information.10 The protection under this section extends to any person
registered as a legal practitioner in India as the section specifies the category of “barrister,
pleader, attorney or vakil” which in India means an advocate. 11 This principle is based on the
fact that its inexistence would render advocates incapable of defending their clients. Clients
would constantly worry about being exposed by their attorney and would not be inclined to
share the entirety of details of their case. In the absence of such a prohibition, the solicitation
of the best possible legal advice would not be possible. 12 Just like in the case of spousal
privilege, the adjudication of the existence of privilege is done by looking at the date of the
communication. If at the time of the communication, the parties were in a relationship of
Legal Advisor & Advisee, the communication shall be considered privileged. In the event

7 Bhalchandra Namdeo Shinde v. The State of Maharashtra 2003(2) MhLj 580

8 M.C. Verghese v. T.J. Ponnam 1970 AIR 1876
9 Section 122, Indian Evidence Act 1872
10 Section 126, Indian Evidence Act 1872
11 Avtar Singh, “Principles of the law of Evidence”, 521, (26th edition, 2016), Central Law Publication, Allahabad.
12 Menaka Sanjay Gandhi v. Ram Jethmalani AIR 1979 SC 468
that the relationship is terminated, the privilege continues to exist.13 This privilege however,
is not absolute. The act itself states that under certain conditions, the privilege does not apply.
One such case is when the communication was in furtherance of an illegal purpose. The
following illustration may be used to understand the same: “A, a client, says to B, an attorney
— “I wish to obtain possession of property by the use of a forged deed on which I request
you to sue”. This communication, being made in furtherance of a criminal purpose, is not
protected from disclosure.”14 If there was a crime being perpetrated since the beginning of the
employment, the said communication too would not be protected under the said privilege.
The following illustration signifies this concept: “A, being charged with embezzlement,
retains B, an attorney, to defend him. In the course of the proceedings, B observes that an
entry has been made in A’s account-book, charging A with the sum said to have been
embezzled, which entry was not in the book at the commencement of his employment. This
being a fact observed by B in the course of his employment, showing that a fraud has been
committed since the commencement of the proceedings, it is not protected from disclosure.”15
Additionally, a disclosure of the privileged communication can be done with the express
authorization of the party making that communication. In case a third person is privy to the
details of that communication, he or she may be compelled to disclose such communication
and would be admissible as evidence subject to the provision of the Indian Evidence
Act. 16 The provisions of section 127 also make the provisions of section 126 applicable to the
assistants, servants or clerks of the advocates who are bound to not disclose privileged
communication.17

1.1.3 STATE PRIVILEGDE:

Section 123 of the Indian Evidence Act, 1872 prohibits any person from giving evidence
which has been taken from unpublished documents that concern the matters of the state. This
may only be done if the head of the concerned government department allows

13 Avtar Singh, “Principles of the law of Evidence”, 522, (26th edition, 2016), Central Law Publication, Allahabad.
14 Section 126, Illustration (b), Indian Evidence Act, 1872
15 Section 126, Illustration (c), Indian Evidence Act, 1872
16 Webster v. James Chapman and Company, (1989) 3 All E.R. 289
17 Section 127, Indian Evidence Act, 1872
disclosure.18 This is done in the interest of the security of the state and wellbeing of the
public.19 Additionally, if a communication was made to an official of the Indian government
in “official confidence”; such communication would also be privileged if the officer believes
its disclosure to be against public interest. 20 Any information about the commission of an
offence given to a police or revenue officer is also privileged.21

In India, such a privilege can only be claimed by the head of a department and not even a
court is allowed to decide what comes under said privilege. For example, when a petitioner
sought the production of certain income-tax returns from the respondent, the court dwelled
into the question of whether or not the document would be protected under state privilege. It
was held that only the Income Tax Commissioner can determine the answer to this question
and no one else; not even a court.22 However, the Supreme Court has clarified that in matters
such as that of dismissal of a public servant due to mal-fide activities, the state cannot claim
privilege when the court requests the production of his service records.23 The Supreme Court
has also been of the view that such communication may not be protected under the said
privilege if in case the non-disclosure of such information would have larger negative
impacts on public interest that the disclosure.24

2. LITERATURE REVIEW:

2.1 David Vaver in his “Without prejudices- Communication: Their Admissibility and
effects” (1974) analysed the historical validity and applicability of the rule, along
with the conceptual rationale of the rule, the term “without prejudice” was further
defined in the express and implied usage were differentiated.
2.2 John E. Tracy and A.H.R in their “Evidence: Admissibility of statements of facts
made during negotiation for compromise” defined the scenario of present, the
various jurisdictions held with comparative uniformity that while offers to settle a
dispute are not admissible in evidence, statements of independent fact made during
such compromise negotiation and admissible.

18 Section 123, Indian Evidence Act, 1872

19 Avtar Singh, “Principles of the law of Evidence”, 514, (26th edition, 2016), Central Law Publication, Allahabad.
20 Section 124, Indian Evidence Act, 1872
21 Section 125, Indian Evidence Act, 1872
22 Debasis Sahu v. Nabeen Chandra Sahu, AIR 2002 Ori. 211
23 State of U.P. v. Chandra Mohan Nigam, (1977) 4 SCC 345
24 R.K. Jain v. Union of India, AIR 1993 SC 1769
 2.3 Robert Bartels in his “Admissibility of exculpatory attorney-client communications
in criminal cases” defined the attorney-client privileged is designed to protect the
confidentiality of clients make their attorneys for the purpose of facilitating the
rendition of professional legal services.
2.4 Robert P. Mosteller in his “Admissibility of fruits of breached evidentiary
privileges: The importance of adversarial fairness; party culpability and fear of
immunity” defined disclosure with consent, that, a person may voluntarily consent,
either orally or in writing, to the disclosure of the information. Consent may be
limited to specific pieces of information and/or to disclosure only to specific other
persons or for specific purposes. The court will interpret the scope of the consent
vary narrowly.

3. ADMISSIBILITY OF PRIVILEGDE COMMUNICATION:

In professional relationships, the right of protection for the communication belongs to the
client, patient, or penitent. The recipient of the information must keep the communication
private, unless the privilege is waived by the discloser of the information. If the recipient of
the information fails to do so, in many instances they can lose their operating license.

The key provisions of privilege between spouses are that courts cannot force husbands or
wives to disclose the contents of confidential communications made during marriage—nor
can either spouse be compelled to testify against the other. These rights, which endure even
after a marriage is dissolved, are designed to protect the honesty and confidentiality of
marriage. Note, though, that these protections do not prevent one or the other spouse from
testifying against the other, should they choose to do so.

Privileged Communications are made in a private setting and are protected from disclosure to
third parties. The rule of privileged communication exists because privacy of confidential
relationships is valued in the society. This is why they are not admissible as evidence. 

Then come situations where the communications involve disclosures of harm to people or
merely the threat of harm in the future. Communications with medical professionals are not
protected when the professional has reason to believe the patient may bring harm to
themselves or others.
The lack of protection typically extends to suspected abuse of children or other vulnerable
people, such as the elderly or disabled. Even between spouses, privilege typically does not
apply in cases involving the harm, or the threat of harm, to a spouse or children in the
couple's care, or to crimes jointly committed with the other spouse.

However, disclosure without consent is entertained, in cases pertinent to the privileges for
health care professionals that allow disclosure without the individual’s consent. Courts will
interpret exceptions very narrowly, and will allow disclosure without consent only if the
situation fits squarely within one of the enumerated exceptions in each statute.
There are four exceptions, discussed below, that are common to most health care
professionals.

3.1 Court ordered exam:

If a court orders an examination for the purposes of reporting back to the court about the
physical or mental condition of the party, the person will be told that anything said will not be
confidential. The report becomes part of the court record and may be protected from further
disclosure by the laws regarding the confidentiality of court records

3.2 Health Placed in Issue:

This exception25 addresses a matter of fairness in legal proceedings. If a person could claim in

a legal proceeding that his or her mental or physical condition was a factor that had to be
considered by the court in resolving the case, then the opposing party must be given the
opportunity to dispute the claim, and this would require that the opposing party, and
ultimately the court, have sufficient evidence concerning the person’s claim as to his or her
mental condition to allow a fair analysis of it. However, the exception has several limitations,
which will be discussed below.

Several things are required before a disclosure may be permitted by the court without consent
of the person:

● it must be in a civil proceeding,

● the party must have introduced his or her mental condition into the case, and

25 The exception occurs only in the statutes for psychiatrists, psychologists, social workers, and professional counselors.
 ● the court must decide that the interests of justice outweigh the need to protect the
information.

3.3 Harm to Others:

The confidentiality of communications made to a health care professional will not be

protected when it leads the professional to believe that the person poses a danger to him- or
herself or to any other individual. This exception is fairly broad, allowing disclosure when the
professional has good reason to believe that there is a risk of imminent harm to any
individual.
This exception puts a duty on the professional to protect others from being harmed by the
professional’s client. It is a matter of judgment on how great a risk of harm, and the
seriousness of that harm, is actually posed by the individual. Because no harm has yet
occurred, and therefore no crime has been committed, once the professional makes the
necessary disclosure to prevent the harm from occurring, any further disclosure is
prohibited.26

3.4 Abuse of others:

If the professional has reason to suspect or believe that a child or an elderly person, disabled,
or incompetent person is being abused, the professional is obligated by mandated reporting
statutes to report the abuse to the agency responsible for caring for these individuals. Because
such abuse, if proven, is a crime, the exception extends to whatever further disclosure is
necessary for the prosecution of the crime, including testimony in court.27

CONCLUSION
A lawyer is under a moral obligation to respect the confidence reposed in him and not to
disclose communications which have been made to him in professional confidence i.e. in the
course and for the purpose of his employment, by or on behalf of his client, or to State the
contents or conditions of documents with which he has become acquainted in the course of
his professional employment, without consent of his client. If such communications were not

26 See State v. Orr, 291 Conn. 642 (2004).

27 See State v. Mark R., 300 Conn. 590 (2011).
protected, no man would dare to consult a professional adviser, with a view to his defence, or
to the enforcement of his rights, and no man could safely come into a Court, either to obtain
redress, or to defend himself.

The rigid enforcement of this rule occasionally operates to the exclusion of truth; but if any
law reformer feels inclined to condemn the rule on this ground, he will do well to reflect on
the eloquent language of the late Knight Bruce, LJ, who observed 28, "Truth, like all other
good things, may be loved unwisely, - may be pursued too keenly, - may cost too much. And
surely the meanness and the mischief of prying into the man's confidential consultation with
his legal advisers, the general evil of infusing reverse and dissimulation, uneasiness,
suspicion and fear, into those communication which must take place, and which, unless in the
condition of perfect security, must take place uselessly or worse, are too great a price to pay
for the truth itself."

28 Pearse v. Pearse 1846, 16 LJCh 153