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Privileged Communication and their Admissibility

It is commonly stated that one should never lie to their doctor or attorney. But in order for such sincerity to exist in an officially recognized connection such as that between an attorney and his client, there must be complete privacy so that the client can feel psychologically safe in opening up completely in front of his attorney or any other service provider. No one can talk about their concerns because they are afraid that their conversation with the other person would be divulged in court.

Any discussion that is related to the argument in question may be admissible as evidence in a criminal case. When two people get into a formally enforceable relationship, however, their communication is protected, meaning they cannot be forced to reveal the details of that conversation in front of a court. Privileged communication is the name given to this type of communication.

Meaning of Privileged Communication
"A communication, whether in words or writing, made on such an occasion as takes it out of the ordinary law relating to slander or libel, and exempts the party making it from an action, unless malice instigated the communication," William Theobald defined privileged communication. In Wolfle v. United States, to qualify as privileged communication, the court stated that a conversation must not be heard by a third party, nor must the conversation enter into the hands of a third party.

The Legal Handbook on Privileged Communications published by the State of Connecticut Judicial Branch provides a simple definition of the term "privileged communication", which is defined as "a legal rule that protects communications within certain relationships from compelled disclosure in a court proceeding."

Sections 126-129 of the Indian Evidence Act deal with protected communication in the context of an attorney-client relationship in India. In addition, the Bar Council of India(BCI) Rules state that an advocate must not violate Section 126 of the Indian Evidence Act 1872, as doing so is punishable.

Categories of Privileged Communication
Communication between a client and a lawyer is confidential and does not have to be disclosed in court. Husbands and spouses also have the right to privileged communication, which means they do not have to testify against each other in court. Patients and their doctors in various jurisdictions are protected under privileged communication because they are enmeshed in a fiduciary relationship, i.e., a relationship based on trust.

If a doctor is forced to expose the conversation between him and his patient, the foundation for such a connection will be shattered. However, in some cases, doctors may be obliged to reveal specific information if it is found that the defendant's right to a fair trial is more than the patient's right to privacy.

Members of the clergy may be granted the 'priest-penitent privilege,' which gives them limited rights to decline to testify on issues that have been given to them in confidence. Reporters in certain jurisdictions have a limited right to privileged communication about the origin of their information, but they can be forced to reveal it if the circumstances warrant it.

Confidentiality and Privileged Communication
"Communications made to an attorney for the purpose of being relayed by him to others are stripped of the idea of a confidential disclosure and are therefore not privileged," the court ruled in Hill v. Hill. As a result, if there is no secrecy, courts will rule that privileged communication has been waived. Even though a privilege statute exists, there can be no privilege if there is no confidentiality. Wigmore, a pillar of Evidence law, backed up this claim by quoting Lord Eldon, who said, "the minute confidence stops, privilege ceases."

This is commonly acknowledged." Confidentiality refers to the professional's ethical obligation not to reveal information obtained from a client to any other person or organisation without the client's consent or under valid legal force. Furthermore, "the need to keep things private is guided by ethics." The right to withhold information is protected by law." The right to life and personal liberty, which includes the right to privacy, is guaranteed under Article 21 of the Constitution of India.

Over any sensitive communication, privacy right is safeguarded by the protective shield of privileged communication. In the case of Vishal Kaushik v. Family Court, it was decided that if one of the spouses records a conversation between them without the other's knowledge, such evidence will not be admitted in court and will constitute a breach of privacy. As a result, secrecy is an ethical obligation of a professional, and its breach is punishable by law (disciplinary action).

On the other hand, legal privilege (or privileged communication) is controlled by an evidentiary rule that protects confidential conversations from disclosure during litigation or other processes. The client has legal privilege, which can be waived by the client. It is against the law to relinquish confidentiality without facing disciplinary punishment.

Role of Privileged Communication in Litigation
When there is a possibility of lawsuit or arbitration, the litigation privilege applies. The likelihood of going to court does not have to be greater than 50%. Even if no litigation is planned, the communication's primary aim must be to be used in litigation. Even if litigation is imminent at the time the document is prepared, litigation privilege will not apply unless the document was created for the primary purpose of the litigation.

"The report was prepared for a dual purpose: for what may be called railway operation and safety purposes and for the purpose of obtaining legal advice in anticipation of litigation, the first being more immediate than the second, but both being described as of equal rank or weight," the court said in Waugh v. British Railways Board. As a result, the court determined that the litigation motive would have to be the dominant reason, and hence privilege would be unavailable.

The discussion must be prepared primarily for the purpose of obtaining evidence or guidance in connection with the conduct of litigation to qualify for litigation privilege. It's not enough to say it's for the primary purpose of pursuing litigation in the broadest sense. When an attorney arranges a meeting with a key witness to obtain proof of evidence, the communication or any record of the communication will be shielded as privileged communication because it took place with the main objective of being used in litigation, regardless of the witness' motivation for agreeing to meet with the attorney.

Privileged Communications under the Evidence Act, 1872:
Communications during the marriage - Section 122
This section prohibits either the husband or the wife from disclosing their communication during the course of their marriage. However, it does not rule out the possibility of proving the communication by other ways. The court affirmed in 'Ram Bharose vs State of UP' that any communication between husband and wife during the marriage, whether by the husband to his wife or by his wife to her husband, is not admissible in court.

Section 123 - Evidence as to affair of state
This section makes it illegal to present as evidence any document that is:
An unpublished official record, or one that is related to the state's affairs.
It may, however, be given with the consent of the involved department's chief, who has the authority to grant or deny such permission.
Section 123 of the Evidence Act, combined with section 162 of the Evidence Act, gives the court the final say on whether or not the unpublished material can be used as evidence.

Section 124 - Official communication
This clause prevents a public officer from disclosing a communication made in official confidence to them if the disclosure would jeopardise the public interest. The public interest is vital in both circumstances.

Section 125 - Information as to the commission of offences
This law forbids magistrates and police officers from releasing any information they receive about the commission of a crime. Similarly, a revenue officer cannot be forced to reveal when he received knowledge about the commission of a public-revenue-related offence.

Section 126 - Professional communication
This clause forbids the disclosure of information by a barrister, attorney, pleader, or vakil during the course and for the purpose of his employment, made to him or on behalf of his client, or any advice offered by him to his client. It also prohibits a barrister, attorney, pleader, or vakil from stating the information or circumstances of any document with which he became familiar with or for the purpose of his work.

Exceptions to section 126 of the Indian Evidence Act:
  • Conversations made for the aim of committing a crime are not protected.
  • Any fact discovered in the course of employment by the attorney, pleader, vakil or barrister to be fraud or a criminal committed since the beginning of employment is not protected
  • If the client offers specific approval, the message can be disclosed by an attorney, pleader, vakil or barrister.
The provisions of section 126 apply to interpleaders, clerks, or servants of an attorney, pleader, vakil or barrister, according to section 127.

Section 128 - Privilege not waived by volunteering evidence
This clause states that if a client and lawyer have a secret communication and the lawyer appears as a witness, the lawyer does not waive the privilege given by section 126. However, if the client challenges the lawyer in court about the private communication, his consent may be deemed given.

Section 129 - Confidential communication with the legal advisor
When the client is being probed, this section applies. Unless he volunteers himself as a witness, he cannot be forced to disclose any confidential communication between him and his legal counsel.

Lacuna in the Our Evidence Law Regarding Privileged Communication
The Evidence Act 1872, Section 126, is highly restrictive when it comes to appointing a legal expert. Privilege communication only applies to litigation lawyers in India, not in-house counsel. A patent agent is not included in the term "legal professional counsellor." As a result, there is no statutory protection for in-house counsels' communications with their employers, which is a serious concern. In addition, Section 129 limits the privilege to clients alone, and the legal professional advisor is not included. As a result, if the client openly or implicitly consents to the dissemination of such information, or if he fails to object, his attorney may suffer a loss.

Lawyers can be enrolled as advocates under the Bar Council of India Rules. According to the guidelines, once a attorney joins a corporation full-time as an in-house counsel, they must forfeit his advocate registration. They will be considered as a permanent employee if he surrenders his registration, and his communications with the corporation will not be protected by legal privilege.

However, if he does not resign his registration and continues to communicate with his company, it is unclear whether such conversation will be protected by legal privilege. Legal privilege should be extended to legal conversations between in-house lawyer and their employers, but not to executive or administrative communications, according to some High Courts. When a communication has a dual aim, establishing the entitlement to legal privilege becomes more challenging.

"If a full-time employee is not pleading on behalf of his employer, or if the terms of employment are such that he is not required to act or plead but is required to do other kinds of functions, then he ceases to be an advocate," the Supreme Court held in Satish Kumar Sharma v. Bar Council of Himachal Pradesh. The latter becomes a government or corporate employee." Because no protected communication is enjoyed by such other specialists, communications between a corporation and other professionals may be ordered to be disclosed before any competent body.

In India, there is no uniform system or mechanism for conducting such investigations because the investigations involved in establishing which communication generates legal privilege are very subjective. Furthermore, there is no system for judicial interpretation that would provide a clear solution if the situation is not crystal clear, such as when a communication has a dual purpose or the lawyer-client relationship is unclear. As a result, customers frequently prefer to retain outsider legal consultants and forensic specialists for even internal investigations in order to benefit from the confidentiality afforded by privileged communication. Several Law Commission Reports have made suggestions in the past, but they have yet to be implemented through statutory amendment.

Only a few relationships are considered privileged. They are safeguarded in light of the fact that one must place his full trust in the other and give information that could be harmful to him and his reputation. This is why the legislation of privileged communication is so important, because without it, a client will be constantly concerned about his legal counsellor or lawyer disclosing information against him, or a patient would be concerned about his doctor disclosing his sensitive medical records, and so on, which is the polar opposite of what we want in society.

Limiting who can enjoy legal privilege is unhelpful in the country like India, where the judicial system remains largely reliant on litigation and transactional techniques and mediation are being studied as measures to relieve the load on our courts. As the report points out, there are various circumstances where the position on the applicability of legal privilege is unclear.
 Furthermore, the Law Commission Reports' suggestions about the expansion of the legal privilege have not been implemented, leaving a lacuna. As a result, it's critical that these gaps are filled and that the privilege is extended to in-house counsel and patent agents.

  • Avtar Singh, "Principles of the law of Evidence", 514, (26th edition, 2016), Central Law Publication, Allahabad
  • F. Robert Radel, II & Andrew A. Labbe, 'The Clergy-Penitent Privilege: An Overview'
  • Indian Evidence Act, 1872

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