There are certain matters which a witness cannot either be compelled to disclose or even if the witness is willing to disclose, he will not be permitted to do so. Such matters are known as ‘privileged communications’. Privileged communication is the communication between individuals who are in a protected relationship by the virtue of which, the details of their communication cannot be disclosed. Privileged communication exists to protect the disclosure of information during the subsistence of confidential or protected relationships. These communications are such that they may not be used as evidence in a court of law against the persons communicating due to the specific nature of their relationship.

The production of certain communications and documents is either privileged from disclosure or prohibited from being disclosed, as a matter of public policy or on the ground that the interest of State is supreme and overrides that of an individual.

Section 122-132 declares exceptions to the general rules that a witness is bound to tell the truth, and to produce any document in his possession or power relevant to the matter in issue. They deal with the privilege of certain classes of witnesses.

Section 122 of the Indian Evidence Act, 1872 speaks about, “Communications during marriage”. This section states that a married person:

• Shall not be compelled to disclose any communication made to them during the marriage by their spouse or ex-spouse.
• They are not permitted to disclose anything without their spouse’s or ex- spouse’s consent even if they are willing to.

Under this section, it is irrelevant whether the communication was sensitive or confidential in nature or not. Any conversation or communication between a husband and wife is privileged no matter what the means of communicating was. If the communications are made before marriage or after the dissolution of the marriage that will not come under the privilege given by this section. However, the communications made during the marriage will be under the privilege under this section even after the marriage has been dissolved. Hence the phrase, “to whom he is or has been married” used in this section. Any communication made before the marriage or after its dissolution will not have this privilege.

The idea behind this privilege is that if testimonies are accepted from private communications between spouses, such testimonies have the power to destroy household peace among families and create a domestic broil. It will hamper the mutual trust and confidence between the spouses and weaken the marital bond.

However, this privilege is not absolute and information can be disclosed if:

• The person who made such communication or their representative gives free consent; or
• There is a suit between a married couple; or
• One of the spouses has been prosecuted for any crime committed against the other.

Section 123 of the Indian Evidence Act, 1872 speaks about, “Evidence as to affairs of State”. This section prohibits any person from giving evidence which has been taken from unpublished documents that concern the affair of the state. This may only be done if the head of the concerned government department allows disclosure. This is done in the interest of the security of the state and wellbeing of the public.

The phrase “Affairs of State” has not been per se described in this section or any other provision in this Act. So, it is not very practical for the judiciary to come up with a single definition of the phrase. Therefore, the Court must determine whether any documents fall under this category, depending upon the facts and circumstances of every case. However, 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’.

Section 124 of the Indian Evidence Act, 1872 speaks about, “Official Communications”. This section states that a public officer cannot be compelled to disclose any communication made to him in official confidence if he believes that such disclosure could harm the public interests.

While Section 123 talks about unpublished documents related to affairs of the state, Section 124 restrains the disclosure of all communication made in an official capacity, be it in writing or not and it is immaterial whether they relate to state affairs or not.

The privilege under this section is absolute. Although there is absolute discretion under this section for the officer who is asked to disclose the information by the court has the power to see if the matter really is a matter of public interest. If the court is of the opinion that it is not a matter of public interest then the court can compel the officer for its disclosure. In deciding whether the document is a matter of public interest the court can look into the document and decide that fact. If the court agrees to the claim by the officer then the document is given back to the officer without disclosing the matter to anyone else.

Although the term “Public officer” is not defined under the Act, here public officer will include all such officers who in discharge of their regular duties receive communications made to them in official confidence and are expected not to disclose any of that confidential information to others.

Section 125 of the Indian Evidence Act, 1872 speaks about, “Information as to commission of offences”.This section says that a Magistrate or a Police Officer cannot be compelled to reveal as to how they got any information regarding the commission of a crime.

This section also says that a Revenue Officer cannot be compelled to reveal as to how he got any information regarding the commission of any offence against the public revenue. This section can be said to be present for the protection of sources because if sources of information will have to be disclosed then the sources will be embarrassed and will refuse to give such information.

Section 126 of the Indian Evidence Act, 1872 speaks about, “Professional Communications”. Professional privileged communication refers to the communication between a legal advisor and his client. The communication between two such persons in furtherance of the professional employment of the advisor is protected and the legal advisor cannot be made to disclose such information. The protection under this section extends to any person registered as a legal practitioner in India as the section specifies the category of “barrister, pleader, attorney or vakil” which in India means an advocate. 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.

This principle is based on the fact that its inexistence would render advocates incapable of defending their clients. Clients would constantly worry about being exposed by their attorney and would not be inclined to share the entirety of details of their case. In the absence of such a prohibition, the solicitation of the best possible legal advice would not be possible.

Illustration: - 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.

This illustration is very clear. A man committed a crime of forgery he goes to a lawyer and says to him that, “I have committed the crime of forgery and I wish you to defend me”. Since the defence of a criminal is not an offence this communication will come under the purview of this section. Even after the case is over and the lawyer is not anymore working under the person, he is not allowed to disclose the information unless the client consents as said in the explanation to this section.

If at the time of the communication, the parties were in a relationship of Legal Advisor & Advisee, the communication shall be considered privileged. In the event that the relationship is terminated, the privilege continues to exist. Any communication made with a lawyer before actually appointing him is not protected under this section. This privilege however, is not absolute. The act itself states that under certain conditions, the privilege does not apply.

Following are the exceptions to Section 126.

1. Communication made in furtherance of illegal purpose (proviso 1) — Such communications are not protected viz. where a client consulted a lawyer for the purpose of drawing up a bill of sale which was alleged to be fraudulent
2. Crime or fraud since employment began (proviso 2) — If a lawyer finds in the course of his employment that any crime or fraud has been committed since the employment began, he can disclose such information. It is based on the rule that no private obligation can dispense with that universal one which lies on every member of society to disclose every design, which may be formed contrary to laws of society, to destroy the public welfare.
3. Disclosure with express consent of client — This section has been enacted for the protection of the client and not of the lawyer. The lawyer is therefore bound to claim privilege unless his client waives it.
4. Information falling into hands of third person — If the communication is overhead by a third person, he may be compelled to disclose it. The prohibition works against the lawyer, but not against any other person.
5. Lawyer's suit against client — If the lawyer himself sues the client for his professional services, he may disclose so much of die information as is relevant to the issue.
6. Joint interest — No privilege attaches to communication between solicitor and client as against persons having a joint interest with the client in the subject matter of communication e.g. as between partners, a company and its shareholders.
7. Documents already put on record — No privilege is available in respect of such documents.

Note: - As per Section 127, the provision of Section 126 apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils.

Section 128 of the Indian Evidence Act, 1872 speaks about, “Privilege not waived by volunteering evidence”. This section says that if the party making the communication under Section 126 gives evidence (at his own instance or otherwise) of the matter covered by the communication, that does not amount to a waiver of privilege. Even if such party calls the lawyer as a witness, it will not amount to a consent to disclosure. But if he questions the lawyer on the very matter of the communication mat will amount to consent and by reason of it the lawyer can disclose the communication.

Section 129 of the Indian Evidence Act, 1872 speaks about, “Confidential communication with Legal Advisors”. The bar of Section 126 is partially lifted by Section 129. In Section 126, the protection was given to the legal advisors and advocates that they can’t be compelled to disclose information about their client unless the client consents. Here in section 129 of the Indian evidence act, the privilege is given to the client himself. The privilege, however, is subjected to a condition i.e. unless the person offers himself as a witness.

As soon as the person in question offers himself as a witness the privilege goes away but only to the extent of that information which may appear to the court as necessary to understand evidence given by him. The protection to the client is necessary because if there is no protection to the client then the protection given to the advocate under professional communication will become illusory.

Section 130 of the Indian Evidence Act, 1872 speaks about, “Production of title deeds of witness, not a party”. This section says that an ordinary witness i.e. a witness who is not a party, cannot be compelled to produce —

1. his title-deeds to any property,
2. any document by which he became the pledgee or mortgagee of any property, and
3. any document which might tend to criminate him.

But he can be so compelled if he has agreed to produce any such document with the person seeking its production.

Section 131 of the Indian Evidence Act, 1872 speaks about, “Production of documents of electronic records which another person, having possession, could refuse to produce”. This section is an extension of Section 130 and says that if any person is entitled to refuse the production of a document, the privilege or protection of the document/ electronic record should not suffer simply because it is in the possession of another person. Thus, a person in possession of other person’s documents (e.g. attorney, vakil) is not compellable to produce them, unless that person (owner of documents) consents to their production.

Section 132 of the Indian Evidence Act, 1872 speaks about, “Witness not excused from answering on ground that answer will criminate”. This section says that where a question put to a witness is relevant to the matter in issue in any suit or in any civil or criminal proceeding, the witness can be compelled to answer it and he cannot be excused from answering it simply because the answer would tend to criminate him to civil or criminal liability or to a penalty or forfeiture. Thus, it is not in the power of the judge to excuse a witness from answering if the question is relevant to the issue.

The proviso to this section, however, protects the witness in an important way. It provides that if a witness has been compelled to give an answer, his answer should not be used to subject him to any arrest or prosecution; nor the answer can be proved against him in any criminal proceeding. Thus, the answers, which die witness is compelled to give, should not constitute any evidence against him. But, if the answer is false, the witness may be prosecuted for giving false evidence (i.e. perjury).

The object of the law is to afford a party, called upon to give evidence, protection against being brought by means of his own evidence within the penalties of the law. The protection is not available when a witness voluntarily answers without any compulsion. When a witness objects to a question being put to him or when he asks the court to be excused from giving answer but he is compelled to give answers, he is said to be “compelled” to give evidence.

The compulsion referred to in proviso does not include the compulsion by the general law of the land (viz. fear of punishment under Section 179, IPC). This is a compulsion which acts against every witness and is inherent in the very idea of a person, being a witness. The giving of evidence is a matter of duty and not of compulsion. Further, Section 132, Evidence Act does not apply to a statement made by a person during an investigation under Section 161, Cr.P.C. A person who is interrogated under Section 161 by a police officer making an investigation is not a witness.

• Adv. Abhishek Gupta (Natraj Legal Solutions)
• Delhi High Court
• Ph: 9999052336,8700521407
• E-mail: adv.abhishek3995@gmail.com