PROJECT WORK

PRIVILEGED COMMUNICATION

SUBMITTED TO: SUBMITTED BY:

Mrs. Garima Lakhmani Manjeet Singh Rathore (L/1509)
Assiatant Professor B.A. L.LB. VI Semester
School of Law School of Law
Raffles University Raffles University

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 Acknowledgments

I, Manjeet Singh Rathore, feel myself highly elated, as it gives me tremendous pleasure to come
out with work on the topic, “Privilege Conversation”.

I am thankful to my teacher, Mrs. Garima Lakhmani, who gave me this topic. I am highly
obliged for her guidance in doing all sorts of researches, suggestions and discussions regarding
my project topic by devoting his precious time.

I thank to the School of Law, Raffles University for providing Computer, library facility. And
last but not the least I thank my friends and all those persons who have helped me in the
completion of this project.

MANJEET SINGH RATHORE

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 Contents

Acknowledgments

Introduction......................................................................................................................................5
Objectives of the Study....................................................................................................................6
Scope of the Study...........................................................................................................................6
Methodology of Study.....................................................................................................................6
I. Privileges of Witnesses under the Indian Evidence Act...............................................................7
II. Privileged Legal Communication.............................................................................................10
Concluding Observations...............................................................................................................13
References......................................................................................................................................14

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 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 The following discussion compares the laws dealing with
privileged communications in India and England.

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

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 Objectives of the Study

Set in the above perspectives, the broad objective of the study is to understand the concept of
privilege conversation.

The specific objectives of the study are as follows:

a.) Privileges of Witnesses under the Indian Evidence Act,1872

b.) Privileged Legal Communication.

Scope of the Study

The research paper would first provide the general introduction of the topic i.e. Privilege
Conversation. It will study the concept into 2 parts.

In part one, the topic will be assessed with reference to its Basic term and the definition .

The second part of this paper would discuss as what basically is privellege conversation
according to the Indian Evidence Act, 1872 and the Legal communication.

In its third part, it deals with the conclusion.

Methodology of Study

This project work is descriptive & analytical in approach. It is largely based on secondary &
electronic sources of data. Books & other references are primarily helpful for the completion of
this project.

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 I. Privileges of Witnesses under the Indian Evidence Act

i) Judges and Magistrates:

According to Section 121 of Indian Evidence Act 1872, No Judge or Magistrate shall, except
upon the special order of some Court of which he is subordinate, be compelled to answer any
questions as to his own conduct in Court as such Judge or Magistrate, or as to any thing which
came to his knowledge in Court as such Judge or Magistrate but he may be examined as to other
matters which occurred in his presence whilst he was so acting.

Examples:

(a) A, on his trail before the Court of Session, says that a deposition was improperly taken by B,
the Magistrate. B cannot be compelled to answer question as to this, except upon thee special
order of a superior Court.

(b) A is accused before the Court of Session of having given false evidence before B, a
Magistrate. B, cannot be asked what A said, except upon the special order of the superior Court.

(c) A is accused before the Court of Session of attempting to murder a police-officer whilst on his
trail before B, a Session Judge. B may be examined as to what occurred.

ii) Communications during marriage:

According to Section 122 of the said Act, No person who is or has been married, shall be
compelled to disclose any communication made to him during marriage by any person to whom
he is or has been married; nor shall he be permitted to disclose any such communication, unless
the person who made it, or his representative in interest, consents, except in suits between
married persons, or proceedings in which one married person is prosecuted for any crime
committed against the other.

iii) Evidence as to affairs of State:

Section 123 of Indian Evidence Act says that "No one shall be permitted to give any evidence
derived from unpublished official records relating to any affairs of State, except with the

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permission of the officer at the head of the department concerned, who shall give or withhold
such permission as he thinks fit".

iv) Official Communications:

According to Section 124 of the said 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.

v) Information as to commission of offences:

Section 125 of Indian Evidence Act says that "No Magistrate or Police officer shall be compelled
to say whence he got any information as to the commission of any offence, and no Revenue
officer shall be compelled to say whence he got any information as to the commission of any
offence against the public revenue. Explanation “Revenue officer” in this section means an
officer employed in or about the business of any branch of the public revenue".

vi) Professional communications:

According to Section 126 of Indian Evidence Act 1872, No barrister, attorney, pleader or vakil
shall at any time be permitted, unless with his client’s express consent, to disclose any
communication made to him in the course and for the purpose of his employment as such
barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or
condition of any document with which he has become acquainted in the course and for the
purpose of his professional employment, or to disclose any advice given by him to his client in
the course and for the purpose of such employment:

Provided that nothing in this section shall protect from disclosure-

(1) Any such communication made in furtherance of any illegal purpose;

(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his
employment as such, showing that any crime or fraud has been committed since the
commencement of his employment. It is immaterial whether the attention of such barrister,
pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client.

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Explanation: The obligation stated in this section continues after the employment has ceased.

Examples:

(a) A, a client, says to B, an attorney — “I have committed forgery, and I wish you to defend
me”. As the defence of a man known to be guilty is not a criminal purpose, this communication
is protected from disclosure.

(b) 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.

(c) 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.

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II. Privileged Legal Communication
Scope:
Sections 126 to 129 deal with the privilege relating to professional communications between
legal practioner and clients. It makes a legal practioner and his dark in legal obligations not to
disclose any communication made by his client for the purpose of professional employment. A
legal adviser when he is entrusted by his client is totally prohibited by this section to make any
communication or information published so that his opponent or any other litigant cannot take
any advantage so long the proceeding is pending before the court of law or even before filling it.
“If such communications were not 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.”
Principle:
This section protects only legal practioners and the clients. Under this section no legal practioner,
viz., barristers, attorney, pleader, vakil or their clerks, shall be permitted to disclose in course and
for the purpose of employment.
It consisted of:
(1) Any communication made to him by his client or any advice given by his client or on behalf
of his client or any advice given by him to his client;
(2) The contents and conditions of any document with which he is accounted.
But the section has no application:
(1) To any communication made in furtherance of any illegal purpose, and
(2) To any fact observed by a legal practioner in course of his employment showing that any
fraud or crime has been committed since the commencement of the employment. [Illustration
(b)]
Privilege Communication:
The principle is made in the interest of justice. The privilege communication extends to all
communications between client and legal adviser in the course and for the purpose of his
professional employment. “The communication must have been made during the subsistence of
the relation of legal adviser and client.” A mere gratuitous communication is not protected.

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 The privilege of confidentiality continues so long the relationship between the legal practioner
and the client exists. Communication between an insurer and his counsel has been held to be
privileged. Notes made by lawyer of statements of witness are within the range of protection.
Even after cession of relationship the privilege exits.
The privilege is extended only to protect the interest of the client not for committing offence.
What is stated in reply notice by a lawyer is evidently what he has disclosed to others and more
particularly to the opponent’s lawyer and so it cannot continue to have the protection afforded by
Section 126 of the Act.
Publication of communication not amount to defamation:
A notice was sent by the client through his lawyer and the opposite party sent reply containing
defamatory remarks. It was held that it did not amount publication for the purpose of defamation.

In India, Sections 126 to 129 of the Indian Evidence Act, 1872 deal with privileged 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 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:

1. 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;

2. 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.

There are certain exceptions to this rule. This Section does not protect from disclosure:

1. any communication made in furtherance of any illegal purpose;

2. any fact observed in the course of employment showing that any crime or fraud has been
committed since the commencement of the employment.
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The protection afforded under this Section cannot be availed of against an order to produce
documents under Section 91 of the Code of Criminal Procedure.

Section 91 of the Code of Criminal Procedure states, "Summons to produce document or other
thing:

1. When any Court or any officer in charge of a police station considers that the
production of any document or other thing is necessary or desirable for the
purpose of any investigation, inquiry, trial or other proceeding under this Code
by or before such Court or office , such Court may issue a summons, or such
officer a written order, to the person in whose possession or power such
document or thing is believed to be, requiring him to attend and produce it, or to
produce it at the time and place stated in the summons or order.
2. Any person required under this Section merely to produce a document or other
thing shall be deemed to have complied with the requisition, if he causes such
document or thing to be produced instead of attending personally to produce the
same.
3. Nothing in this section shall be deemed a) to affect Sections 123 and 124 of the
Indian Evidence Act or the Bankers’ Book Evidence Act or b) to apply to a letter,
postcard, telegram or other documents or any parcel or thing in the custody of
the Postal or telegraph authority.”

The document must be produced, and then, under Section 162 ("A witness summoned to produce a
document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection
which there may be to its production or to its admissibility. The validity of any such objection
shall be decided by the Court. The Court, if it sees fit, may inspect the document, unless it refers to
matters of State, or take other evidence to enable it to determine on its admissibility. If for such
purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct
translator to keep the contents secret, unless the document is to be given in evidence: and, if the
interpreter disobeys such direction, he shall be held to have committed an offence under Section
166 of the Indian Penal Code.") of this Act, it will be for the Court, after inspection of the
documents, if it deems fit, to consider and decide any objection regarding their production or
admissibility.3

3
Ganga Ram v. Habib Ullah (1935)58 All 364

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Under Section 126, it is not that every communication made by a person to his legal adviser is
protected from disclosure but only those communications made confidentially with a view to
obtain professional advice are privileged. It should also be remembered that the privileged extends
only after the creation of pleader-client relationship and not prior to that. 4 Also, communication
must be made with the lawyer in his capacity as a professional adviser5 and not as a friend6.

Considering the exception to this rule, existence of an illegal purpose will prevent any privilege
attaching to any communication. Thus, communications made with a view to carry out a fraud are
not privileged.7

The scope of Sections 126, 27 and 128 is different from that of Section 129. The former Sections
prevent a legal adviser from disclosing professional communication. Section 129 applies where a
client is interrogated, whether he is a party to a suit or not. Section 129 states that no person shall
be compelled to disclose in the Court any communication between him and his legal adviser
unless he offers himself as witness. Thus, Section 129 makes a person immune from compulsory
process. This immunity may extend to third parties, such as consultant who are recruited to help
with the preparation of the case for trial. However, once the material has got out, it should not be
kept out of Court on account of its confidential nature any more than would any other confidential
matter.8 Also, if a party becomes a witness of his own accord he shall, if the Court requires, be
made to disclose everything necessary to the true comprehension of his testimony. 9

In a recent case, an unsigned and undated letter which was allegedly written by the advocate-
accused to his client-terrorist to remain absconding was held to be professional communication
and not ‘abetment’ and thus could not be used against the advocate. 10 But in another case, the
Gujarat High Court held that disclosure was allowed where the client desired to obtain decree for
money on basis of forged promissory note.11

4
Kalikumar Pal v. Rajkumar Pal (1931)58 Cal 1379
5
Wallace v. Jefferson 2B 452
6
Smith v. Duniell 44LJCh 189
7
O’Rourke v. Darbishire (1920) AC 581
8
Calcraft v. Guest (1898)1 QB 759
9
Munchershav Bezanji v. The new Dhurumsey S. & W. Company (188004 Bom 576
10
D. Veeraseharan v. State of Tamil Nadu 1992 Cr. L.J. 2168 (Mad)
11
Gurunanak Provisions Stores v. Dalhonumal Savanmal AIR 1994 Guj 31

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The rule is established for the protection of the client, not of the lawyer, and is founded on the
impossibility of conducting legal business without professional assistance, and on the necessity, in
order to render that assistance effectuated, of serving full and unreserved intercourse between the
two12.

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

12
Jones v. Great Central Railway 1910 AC 4

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employment, without consent of his client. If such communications were not 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,
"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."

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References

Statutes Referred

1. Indian Evidence Act, 1872.

2. Code of Criminal Procedure, 1973.

Books Reffered

 Ratanlal & Dhirajlal, The Law of Evidence, 2010.

 Batuk Lal, The Law of Evidence, 2014

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