Introduction
Privileged communication is a form of communication in which two or more individuals are in a legally recognized relationship. By this protected relationship, they are not bound to disclose any details of such communication. 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 recognizes 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(between husband and wife), Professional communication (between advocate and client), State communication (unpublished records of state affairs), etc.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:
1. Communication should take place between individuals who are in a protected legal relationship.
2. Communication should take place in private.
3. 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 are considered 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]
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 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.
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. Emperor[4], 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 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 other spouse’s knowledge, 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.
Communication under State Privileges
According to Section 123 of The Indian Evidence Act, 1872 no person can give any evidence 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 cannot be disclosed. Such an officer can give or withhold permission regarding the same as he thinks fit.
Additionally, if 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 the public interest. This section was introduced with the interest of state security and public wellbeing. Any information about the commission of an offense 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 malafide 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, 1872 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 are 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.
Communication between a Lawyer and a Client
Any communication between an attorney and his client is protected and remains confidential. This is commonly called professional communication. Sections 126-129 of the Indian Evidence Act, 1872 deal 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 a 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 privileged communication to any third person. Only such communication can be considered privileged if the communication happened during the existence of the 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. This section also states that the lawyer cannot disclose any contents of the document that he became familiar with during 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:
1. When the communication was made in furtherance of an illegal purpose;
2. When the attorney gets to know that a crime or fraud has been committed since employment began;
3. When the client gives consent;
4. When the information falls into the hands of a third party;
5. When a lawyer sues the client for professional purposes.
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 Works[8], 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 Section 126 and 129 of Indian Evidence Act 1872.
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
Doctors and Psychologists
All information’s exchanged between a doctor and his patient is protected. This is also termed doctor-patient confidentiality. The Medical Council of India can revoke the license 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 is 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] 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 the 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.
Religious and Spiritual Advisers
It’s also called a 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 privileged communication. A priest could be denounced for disclosing the details of a confession.[10] This priest and penitent relationship are recognized in the United States and several other countries but it’s not given any privilege under Indian law.
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 125, no Revenue Officer can be compelled to reveal the source of information regarding the commission of any offense 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.
Journalists
It’s also called 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 organization 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. One 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 various instances by the courts in Indian Jurisprudence.
[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 Shankar Shet Uravane on 12 October 1932 (1933) 35 BOMLR 174
[3] 2003 (2) ALD Cri 84; 2003 BomCR Cri; 2003 (2) MhLj 580
[4] (1913) ILR 40 Cal 891
[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
[7] Menaka Sanjay Gandhi v. Ram Jethmalani AIR 1979 SC 468
[8] AIR 1982 Bom 6
[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
[10] F. Robert Radel, II & Andrew A. Labbe, ‘The Clergy-Penitent Privilege: An Overview’ https://www.gspalaw.com/the-clergy-penitent-privilege-an-overview/
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.
This article has been written by Deepthi Seran, Final year BA LLB (Hons.) student at Mahatma Gandhi University, Kottayam
