INDIAN EVIDENCE ACT, 1872 – PRIVILEGED COMMUNICATION

Privileged communications are specific types of information or conversations that are protected from compelled disclosure in a court proceeding.

Evidence is the cornerstone of the judicial process, playing a crucial role in the administration of justice in both criminal and civil cases. The legal system relies on the presentation and evaluation of evidence to establish the facts and determine the merits of a case.

There are certain matters which though relevant are not admissible in the Court of Law because of the reason of certain privileges being conferred to certain relationship to create an environment of trust and confidentiality, encouraging individuals to seek guidance, advice, or medical assistance without the fear that their private disclosures will be used against them in legal proceedings. Privileged communications are specific types of information or conversations that are protected from compelled disclosure in a court proceeding.

Sections 122 to 132 of the Indian Evidence Act, 1872, cover the provisions related to privileged communications. These sections recognize and protect certain types of communications from disclosure in a court proceeding. Here’s an overview of the relevant sections:

Section 122:-

it deals with the privilege relating to communications between spouses during the marriage. Here’s a breakdown of the key points as outlined in the section:

1. Non-disclosure of Communications: A married person is protected from being compelled to disclose any communication made to them during the marriage by their spouse or ex-spouse. This means that if one spouse is a witness in a legal proceeding, they cannot be forced to reveal any communication made to them by their current or former spouse during the course of the marriage.
2. Protection from Disclosure without Consent: Even if the married person is willing to disclose the communication, they are not permitted to do so without the consent of their spouse or ex-spouse. This underscores the importance of spousal consent in waiving the privilege.
3. No protection under Certain circumstances:
   1. In suits between married persons, or
   2. In proceedings in which one married person is prosecuted for any crime committed against the other.

In the matter of M.C. Verghese v. T.J. Poonan (1970) communications made during the marriage, regardless of the subsequent events like separation or divorce, retain the protection under Section 122. In this context, Ram Bharosey v. State of UP (1954), is an important legal precedent where the Supreme Court made a distinction between conversations between spouses and acts and deeds for the purposes of determining admissibility under Section 122 of the Indian Evidence Act. The statements related to the accused’s actions, such as being seen at a certain place or engaging in specific activities, will not be considered privileged communications under Section 122.

Section 123 and 124:- 

It deals with privileges of official communication. These sections recognize the importance of preserving the confidentiality of communications and records within the realm of official or public duties. These are based on the maxim that. Section 123, Indian Evidence Act, prohibits the giving of evidence derived from unpublished official records relating to affairs of State except with the permission of the head of the Department.

Under Section 124 of the Act, no public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interests would suffer by the disclosure.

Another one of these important privileges concern themselves with the identity of informants to be kept secret. These provisions recognize the practical need for certain officials, like Magistrates, Police Officers, and Revenue Officers, to gather information confidentially in the course of their duties.

The privilege granted by Section 125 is consistent with the broader principles of encouraging cooperation with law enforcement agencies and protecting informants. A Magistrate or a Police Officer cannot be compelled to reveal how they obtained any information regarding the commission of a crime. Similarly, a Revenue Officer cannot be compelled to reveal how they obtained any information regarding the commission of any offence against public revenue.

Section 126:-

The provisions of Section 126 of the Indian Evidence Act, 1872, which deals with the privilege regarding communications between a client and their barrister, attorney, pleader, or vakil (legal professionals) in the course and for the purpose of their professional employment. Here’s a more detailed breakdown:

• Privilege for Legal Professionals: No barrister, attorney, pleader, or vakil shall be permitted, except with the express consent of the client, to disclose any communication made to them in the course and for the purpose of their professional employment by or on behalf of their client.
• Protection of Document Contents: The section also protects legal professionals from disclosing the contents or condition of any document with which they have become acquainted in the course and for the purpose of their professional employment.
• Non-Disclosure of Professional Advice: Legal professionals are barred from disclosing any advice given to the client in the course and for the purpose of their professional employment unless the client gives express consent.

Exceptions to Privilege under Section 126:

However, Section 126 does not protect from disclosure:

1. Communications in Furtherance of Illegal Purpose: Any communication made in furtherance of any illegal purpose is not protected by this privilege.
2. Facts Showing Crime or Fraud: Any fact observed by a legal professional in the course of their employment that shows that any crime or fraud has been committed since the commencement of their employment is not protected. It’s immaterial whether the attention of the legal professional was directed to such a fact by or on behalf of the client.

This section is crucial in maintaining confidentiality and trust between clients and their legal advisors. The exceptions highlight the importance of ensuring that the privilege does not extend to communications or actions that involve illegal activities.

It aims to strike a balance between protecting the client’s trust and ensuring that the legal system is not used to conceal illegal or fraudulent activities. Section 127 of the Indian Evidence Act, 1872, extends the privilege regarding professional communications to interpreters, clerks, or servants of barristers, attorneys, pleaders, or vakils.

Importance of Privileged Communication:

Privileged communication is crucial as it fosters trust in certain relationships where individuals need to share sensitive information with professionals such as lawyers, doctors, and others. Without the assurance of privileged communication, clients, patients, and others might be reluctant to share information openly, fearing potential disclosure that could harm their reputation.

However, the fact that the recommendations from Law Commission Reports regarding the expansion of legal privilege have not been implemented suggests a gap in the legal framework. This calls a Legislative Action so as to progress towards legislative reforms and further ensure that the legal system keeps pace with the ever evolving needs and challenges of the society.

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