PRIVILEGED COMMUNICATIONS AND ITS

PROVISIONS

Introduction

Privileged communication is a form of communication in

which the two or more individuals are in a legally recognised
relationship. By virtue of this protected relationship, they are
not bound to disclose any details of such communication.

In order to protect the sanctity of such relationships, these

communications may not be disclosed to any third party or used
as evidence in a court of law.

The Indian Evidence Act, 1872 recognises the following as

privileged communications; Spousal communication (between
husband and wife), Professional communication (between
advocate and client), State communication (unpublished
records of state affairs) etc.

The following are the pre-requisites for any communication to

be considered as a Privileged communication;

 The communication should take place between

individuals who are in a protected legal relationship.
 The communication should take place in private.
 The information communicated cannot be disclosed
to a third party as the privileged status ends once it is
disclosed.
Communication between a husband and wife

Under section 122 of the Indian Evidence Act, 1872,

communications between a husband and a wife is considered as
a privileged communication.

It is to be noted that this section applies only to the

communications made while the marriage is subsisting and not
before or after marriage.1

In order to preserve the secrecy between the spouses and any

further damage to the familial structure, the spouses are not
allowed to disclose any such information to the third party.

Moreover, the Court cannot compel either the husband or wife

to testify against each other. Under this section, any
conversation between a husband and wife is privileged whether
such communication was sensitive or confidential in nature or
not.2

The Court further held that such communication would refer

only to verbal or written words said by the spouse and not their
actions.

In Bhalchandra Namdeo Shinde v. The State of Maharashtra 3,

the wife was called in to give testimony against her husband
who was being tried for allegedly committing a murder. She
was allowed to testify regarding his conduct and actions but not
the communications between them.

______________________________

1. M.C.Verghese v. T.J.Poonan and Anr. On 13 November, 1968; 1970 AIR

1876, 1969 SCR (2) 692
2. Emperor v. Ramachandra Shankarshet Uravane on 12 October, 1932
(1933) 35 BOMLR 174
3. 2003 (2) ALD Cri 84; 2003 BomCR Cri; 2003 (2) MhLj 580
However, this privilege is not available when there is a dispute
between the married couples or when either of them is being
prosecuted for a crime committed against the other.

If the party who made the communication gives consent to its

disclosure by waiving this privilege, then such evidence can be
testified in a court of law.

In the case of Nawab Howladar v. Emperor4, a widow wanted

to act as a witness and disclose communications made by her
deceased husband. The Court held that such communication is
entirely inadmissible because it’s impossible to obtain an
express consent from a deceased person.

The Court further clarified that a widow cannot give her

consent as a representative in the best interest of her deceased
husband.

In the case of Vishal Kaushik v. Family Court & Another, the

Court held that if the conversation between two spouses is
recorded by one of the spouses without the knowledge of the
other spouse, that evidence will not be admissible in the Court.

In fact, this act will amount to a breach of privacy under Article

21 of the Indian Constitution and the spouse who has recorded
will be held liable.

________________________________

4. (1913) ILR 40 Cal 891

Communication under state privileges

According to section 123 of The Indian Evidence Act, no

person is allowed to give any evidence which is obtained from
any unpublished records of any state affairs.

Without the permission of the officer-in-charge or the head

officer at the concerned department such information’s cannot
be disclosed. Such an officer can give or withhold permissions
regarding the same as he thinks fit.

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.

This section was introduced with the interest of state security

and public wellbeing. Any information about the commission
of an offence given to a police or revenue officer is also
privileged.

The phrase “Affairs of State” has not been described in this

section or any other provision in this Act. So, it is not practical
for the judiciary to come up with a single definition of the
phrase.

In Debasis Sahu v. Nabeen Chandra Sahu, the Court held that

only the Income Tax Commissioner can determine whether the
production of certain documents relating to income-tax returns
would be protected under state privilege or not and not even the
court can answer this question.
The Supreme Court has further clarified that when the court
requests for the production of service records of a public
servant doubted for mal-fide activities, the state cannot claim
such privileges.5

The Supreme Court has also opined that if non-disclosure of

some information would have larger negative impacts on public
interest than its disclosure, then such communication may not
be protected under the state privileges.6

Under section 124 of the Evidence Act, the communications

made to a public officer may be held in official confidence
because such official communications could hurt the public
interests if exposed.

The Court has to decide whether such official communications

made to a public officer is in legitimate certainty or not. If it
does not involve any issues of the State or hurt the public
interests, it might be taken as evidence.(In re Mantubhai
Mehta)

Therefore, 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’ depending upon the facts and
circumstances of every case.

___________________________

5. State of U.P. v. Chandra Mohan Nigam, (1977) 4 SCC 345

6. R.K. Jain v. Union of India, AIR 1993 SC 1769
Communication between a lawyer and a client

Any communication between an attorney and his client is

protected and remains confidential. This is commonly called as
a professional communication. Sections 126-129 of the Indian
Evidence Act, 1872 deals with privileged communication in a
professional relationship.

A registered legal practitioner in India is not allowed to reveal

such classified information that the client had disclosed to him
or any advice that the lawyer had given to his client.

This principle facilitates advocates to provide the best legal

advice possible. The Court has observed that everyone has the
right to fair trial and for obtaining such right one can seek the
help of an advocate.7

In the case of P R Ramakrishnan v. Subbaramma Sastrigal,

Court held that as per Section129 of the Evidence Act both the
client as well as the attorney isn’t under any obligation to
convey the privilege communication to any third person.

Only such communication can be considered as privileged if

the communication happened during the existence of legal
advisor-advisee relationship.

This also means that no privilege is attached to communication

to an attorney consulted as a friend. This obligation continues
even after employment has ceased.

_________________________________

7. Menaka Sanjay Gandhi v. Ram Jethmalani AIR 1979 SC 468

This section also states that the lawyer cannot disclose any
contents of the document that he became familiar with during
the course of his employment. Even after the termination of
employment, he is not expected to disclose such information to
ensure no harm to his clients.

The privilege under Section 126 is subject to

certain exceptions i.e. under the following conditions
communication can be disclosed:

 When the communication was made in furtherance of

an illegal purpose;
 When the attorney gets to know that a crime or fraud
has been committed since employment began;
 When the client gives consent;
 When the information falls into the hands of a third
party;
 When a lawyer sues the client for professional purpose.

In the case of Karamjit Singh v. State, the Court held that one
cannot ask for disclosure of any professional communication
and documents of attorney and client under the Right to
Information.

In Municipal Corporation of Greater Bombay v. Vijay Metal

Works8, Court held that a salaried employee who advises his
employer on all legal matters would get the same protection as
others, viz., barrister, attorney, pleader or vakil, under Ss.126
and 129 of Indian Evidence Act 1872.

______________________________

8. AIR 1982 Bom 6

In India, the Attorney-Client privilege is governed by legal
provisions under The Indian Evidence Act, 1872, Bar Council
of India Rules and Advocates Act, 1961. Bar Council of India
(BCI) has some rules on professional standards which every
advocate has to abide by.

It is believed that an advocate owes a duty towards the Court,

client, their opponent, and other advocates. Attorney-client
privilege is further strengthened by these rules.

Other privileged communications

1. Doctors and Psychologists

All information’s exchanged between a doctor and his patient is

protected. This is also termed as doctor-patient confidentiality.
The Medical Council of India can revoke the licence of a
doctor who breaches such confidentiality.

According to article 21 of the Indian Constitution, any personal

information of the patient is part of the right to privacy. Hence,
such information’s are strictly confidential and no doctor is
bound to reveal it to any third party.

The Medical Council (Professional Conduct, Etiquettes and

Ethics) Regulations, 2002 specifically protects the rights of the
patients.9

_________________________________
9. Rule 7.14, The Indian Medical Council (Professional Conduct, Etiquettes
and Ethics) Regulations,
2002; https://www.mciindia.org/documents/rulesAndRegulations/Ethics
%20Regulations-2002.pdf
No registered medical practitioner is allowed to disclose any
information about a patient under rule 7.14 of the regulations.
But such information must have been obtained during the
exercise of medical profession.

However, there are certain exceptions to this principle as well.

A doctor must disclose the information of his patient when he
is called upon by a court of law under the orders of the
Presiding Judge.

A registered medical practitioner is bound to inform the

concerned public health authorities when it’s a case of highly
contagious diseases because there is a serious risk to the
community at large.

In the landmark judgment of Mr. X v. Hospital Z, the Supreme

Court held that public interest can override the right to doctor-
patient confidentiality if it poses a great threat to any person in
case of its non-disclosure. In this given case, it was held
necessary to disclose to the wife that the husband has HIV-
AIDS.

2. Religious and spiritual advisers

It’s also called as priest-penitent privilege. A penitent is a

person who confesses their sins to a priest and pleads for
forgiveness from the Holy Spirit. In a Roman Catholic Church,
the priest is not permitted to disclose the details of such
confessions.
Hence, we can say that these communications are considered as
privileged communication. A priest could be denounced for
disclosing the details of a confession.10

This priest and penitent relationship is recognised in United

States and several other countries but it’s not given any
privilege under Indian law.

3. Secret Informants

According to section 125 of the Indian Evidence Act, 1872, no

Magistrate or a Police Officer can be compelled to reveal the
source of information they had received about the commission
of a crime.

Similarly, as per section the above section, no Revenue Officer

can be compelled to reveal the source of information regarding
the commission of any offence against the public revenue.

Thus, we can say that this section was mainly introduced for
the protection of the sources because the sources might get
embarrassed and may refuse to give such information if the
disclosure is made mandatory.

_____________________________

10. F. Robert Radel, II & Andrew A. Labbe, ‘The Clergy-Penitent Privilege:

An Overview’ https://www.gspalaw.com/the-clergy-penitent-privilege-an-
overview/
 4. Journalists

It’s also called as Reporters Privilege or Press-Source

Protection Privilege. This privileged communication secures
journalists from uncovering their sources. In India, this
privilege is covered under The Press Council of India Act,
1978.

According to section 15(2) of The Press Council of India Act,

1978, no manager, writer or news organisation can be
compelled to disclose the source of any news published in their
newspaper, magazine or media by the news office, editor or
journalist.

Conclusion

Privileged communication refers to confidential interactions

between legally protected people. Once such communication is
known to a third person, it loses its privilege.

According to the rule of privileged communication, a court of

law cannot ask an individual in this protected relationship to
disclose any details of this communication.

The foundation of this principle is to guard the trust that a client

re-poses in an attorney, patient in a doctor and spouses in each
other. The law also provides for punishment in case of its
violation.

However, this privilege is not absolute as there are certain

exceptions as well. It may be violated in various cases that have
either been specified in the statute itself or in various instances
by the courts in Indian Jurisprudence.
References

1. Ratanlal & Dhirajlal: Law of Evidence (PB), 27th ed ;THE LAW

OF EVIDENCE; S. 121 – 132 of The Indian Evidence Act, 1872
2. https://lawtimesjournal.in/what-does-privileged-communication-
mean/#_edn8
3. https://www.legalbites.in/privileged-communication/
4. https://www.google.com/amp/s/legalsarcasm.com/legal-notes/law-
of-evidence-what-is-a-privileged-communication/%3famp
5. http://www.legalserviceindia.com/articles/pc.htm
6. https://lexpeeps.in/privileged-communication-under-the-indian-
evidence-act/
7. https://www.srdlawnotes.com/2017/04/privileged-communication-
under-indian.html?m=1
8. https://www.google.com/amp/s/blog.ipleaders.in/privileged-
communication-under-indian-evidence-act-1872/amp/