Privileged Communication
UTTAR PRADESH STATE LAW COMMISSION
Submitted to- Justice Pradeep Kumar Srivastava Submitted By- Utkarsh Chadha
(Former Judge, High Court) Chairman Babasaheb Bhimrao Ambedkar
Uttar Pradesh State Law Commission Central University, Lucknow
UTTAR PRADESH STATE LAW COMMISSION
MANYAWAR KANSHI RAM GREEN (ECO) GARDEN,
ADMINISTRATIVE BLOCK-B, OLD JAIL ROAD,
LUCKNOW -226005
INDEX
1) ACKNOWLEDGEMENT ..................................................................................................................... 1
2) LIST OF ABBREVIATIONS ................................................................................................................ 2
3) OBJECTIVES......................................................................................................................................... 3
4) RESEARCH METHODOLOGY .......................................................................................................... 4
5) INDEX OF AUTHORITIES ................................................................................................................. 5
6) INTRODUCTION .................................................................................................................................. 6
I. What is the Privileged Communication in Evidence Act? .................................................................. 6
II. Provisions Dealing with Privileged Communication in Evidence Act .............................................. 6
1) Section 122: Communication During Marriage.......................................................................... 6
2) Section 123 Evidence as to Affairs of State ............................................................................... 7
3) Section 124 ................................................................................................................................. 8
4) Section 125 ................................................................................................................................. 8
5) Section 126 Professional Communication .................................................................................. 9
6) Section 127: Application to Interpreters, etc. ............................................................................. 9
7) Section 128: Privilege Not Waived by Volunteering Evidence ................................................ 10
8) Section 129: Confidential Communications with Legal Advisers ............................................ 10
III. Different Types of Privileged Communication............................................................................... 10
1) Communication during marriage. ............................................................................................. 10
2) Affairs of the State.................................................................................................................... 11
3) Official communications .......................................................................................................... 11
4) Information as to commission of offences ................................................................................ 11
5) Professional communications ................................................................................................... 11
6) Privileged communication between doctor and patients .......................................................... 12
IV. Exceptions to Privileged Communication ...................................................................................... 12
1) In case of a fraud or crime ........................................................................................................ 12
2) In the case of patient's health .................................................................................................... 12
3) In the case of waiver ................................................................................................................. 13
7) CONCLUSION ..................................................................................................................................... 14
8) BIBLIOGRAPHY ................................................................................................................................ 15
ACKNOWLEDGEMENT
I take this opportunity to express my profound gratitude and deep regards to Justice Pradeep
Kumar Srivastava (Former Judge, High Court) Chairman for his exemplary guidance,
monitoring and constant encouragement throughout the course of this project. The blessing,
help and guidance given by him from time to time shall carry me a long way in the journey of
life on which I am about to embark.
The project helped me learn how to do proper Research and helped me improve my research
skills, I learned about many new things while doing the project. I would also like to thank my
parents and friends who helped me complete this project within the deadline.
A special acknowledgement goes to my classmates who helped me in completing the project
by exchanging interesting ideas and sharing their experience.
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LIST OF ABBREVIATIONS
1. High Court HC
2. Limited Ltd.
3. Private Pvt.
4. Supreme Court SC
5. Supreme Court Cases SCC
6. Supreme Court of India SCI
7. Versus v.
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OBJECTIVES
Objectives of the Assignment on the Privileged Communications:
1. Understanding the Concept of Privileged Communication
o Define privileged communication and explain its significance in legal, medical,
and professional contexts.
o Distinguish between privileged communication and other forms of
confidentiality.
2. Exploring Legal Frameworks
o Identify and describe the different types of privileged communications
recognized by law (e.g., attorney-client, doctor-patient, spousal privilege).
o Analyze case law and statutes that establish and govern privileged
communication.
3. Limitations and Exceptions
o Identify situations where privileged communication may be waived or
breached, such as in cases of public safety or mandatory reporting laws.
o Evaluate the potential consequences of breaching privileged communication for
both the professional and the client/patient.
4. Research and Analysis
o Conduct thorough research using legal databases, academic journals, and other
credible sources to support your analysis.
o Synthesize information from multiple sources to develop well-rounded
arguments and conclusions.
By achieving these objectives, students will gain a comprehensive understanding of privileged
communication, its legal and ethical foundations, and its practical implications across various
professional fields.
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RESEARCH METHODOLOGY
This project is descriptive and analytical in nature. Doctrinal approach has been followed.
Doctrinal legal research methodology, also called "black letter" methodology, focuses on the
letter of the law rather than the law in action. It is largely based on primary (cases, statutes, or
regulations), secondary and electronic sources. The research methodology for this assignment
on Stipulation as to Time, involve a comprehensive review of existing literature, including
academic articles, government reports, legal cases, and policy documents. Books and other
references were primarily helpful for the completion of this assignment.
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INDEX OF AUTHORITIES
A
Appu v. State 1971 .............................................................................................................. 7
M
MC Verghese v. TJ Ponnan 1970 ....................................................................................... 7
Q
Queen Empress v. Danoghue 1899 ..................................................................................... 7
R
Ram Bharose v. State of UP 1954....................................................................................... 7
Rumping v Dir. Of Public Prosecutions 186 ...................................................................... 7
S
State of UP v/s Raj Narain 1975 ......................................................................................... 7
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INTRODUCTION
I. What is the Privileged Communication in Evidence Act?
Privileged communication in Evidence Act refers to certain confidential communications that
are protected from being disclosed in a court of law. These communications are safeguarded
by privileges recognized under the law, preventing individuals from being compelled to reveal
them in legal proceedings. The concept of privileged communication is designed to encourage
trust and openness in specific relationships, ensuring that certain sensitive information remains
confidential.
The Indian Evidence Act recognizes several types of privileged communication, including
those between lawyers and their clients (attorney-client privilege), communications with
spouses and communications with other professionals like doctors, clergy or counsellors. These
privileges aim to protect the privacy of conversations or information shared within these
relationships, promoting honesty and trust. However, the specifics and extent of these
privileges can vary based on the legal jurisdiction and the nature of the communication.1
II. Provisions Dealing with Privileged Communication in
Evidence Act
1) Section 122: Communication During Marriage
Section 122 specifically addresses communications during marriage. It establishes that
individuals who are or have been married are not required to disclose any communications
shared with them by their spouse during the marriage unless the communicating spouse or their
legal representative consents.
Exceptions to this rule include situations like acts distinct from the communication itself, the
waiver of privileges, legal proceedings between the married individuals, communications made
prior to or after the marriage’s dissolution and evidence of communication provided by a third
1
Jodha, A., & Jodha, A. (2024a, February 3). Privileged communication under the Indian Evidence Act, 1872.
My Exam : EduBlog of ALLEN Career Institute - ALLEN Blog. https://myexam.allen.in/privileged-
communication-under-the-indian-evidence-act-1872/
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party, as established in legal precedents such as Ram Bharose v. State of UP 19542, Appu v.
State 19713 and Queen Empress v. Danoghue 18994.
In the case of MC Verghese v. TJ Ponnan 19705, the respondent, TJ Ponnan, sent letters from
Bombay to his wife, Rathi, who was residing with her parents in Trivandrum. These letters
were claimed to contain defamatory remarks about Verghese, who was the petitioner and
Rathi’s father.
Consequently, the father-in-law initiated a lawsuit based on the content of these letters, which
were passed from the wife to her father. The Kerala High Court dismissed the admissibility of
these letters as evidence, invoking Section 122 regarding communications during marriage.
The Supreme Court, upon appeal, established that although a spouse is typically prohibited
from testifying about the content of certain communications, these communications can be
validated by a third party (in this instance, the wife’s father).
In the case of Rumping v Dir. Of Public Prosecutions 18626, an appellant wrote a letter to his
wife admitting to a murder. The letter was handed to a colleague for posting. Subsequently,
after the appellant’s arrest, the colleague transferred the letter to the ship’s captain, who then
gave it to the police. The court ruled the letter admissible as evidence, despite the wife not
being called as a witness.
2) Section 123 Evidence as to Affairs of State
Regarding Section 123 on “Evidence as to affairs of State,” the law prohibits the disclosure of
information from unpublished official records related to State affairs, except with permission
from the relevant department head. This section should be read alongside Section 162, which
mandates that if a person is summoned to produce a document, they must do so, even if they
object and the court will decide on the objection. However, the court cannot inspect the
document if it pertains to matters of State.
In the case of State of UP v/s Raj Narain 19757, Mr. Raj Narain filed an election petition
alleging the misappropriation of public funds by a political party for the re-election of the Prime
2
Ram Bharose v. State of UP 1954
3
Appu v. State 1971
4
Queen Empress v. Danoghue 1899
5
MC Verghese v. TJ Ponnan 1970
6
Rumping v Dir. Of Public Prosecutions 1862
7
State of UP v/s Raj Narain 1975
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Minister of India. The petitioner requested the Government of U.P. to produce the Blue Book,
containing guidelines for the safety of the Prime Minister during travels.
The Allahabad High Court ruled that the Blue Book did not meet the criteria of Section 123 of
the Indian Evidence Act and ordered its production, asserting that failure to produce the
document would jeopardize public interest. The judgment favored Mr. Raj Narain.
Subsequently, the Uttar Pradesh State Government appealed this decision to the Supreme
Court.
The question concerning the classification of the Blue Book record under Section 123 of the
Indian Evidence Act, 1872, which pertains to unpublished government records and whether the
non-disclosure of this document impacts public interest, was addressed in the Supreme Court
of India.
The Supreme Court opined that Section 123 of the Indian Evidence Act, 1872, primarily aims
to prevent harm to public interest. The judges asserted that any document capable of
influencing public policy and future developments should be accessible to the court.
The court’s decision highlighted that when the potential public interest affected by non-
disclosure outweighs that affected by disclosure, the Court has the right to demand the
production of such documents.
The Supreme Court upheld the Allahabad High Court’s decision and emphasised that it is
within the judiciary’s purview to determine if a document serves the public interest.8
3) Section 124
Section 124 of the Indian Evidence Act pertains to Official Communication, stating that no
public officer can be compelled to reveal communications made to them in official confidence
if the officer deems that public interests would suffer due to disclosure.
4) Section 125
Furthermore, Section 125 addresses Information as to commission of offences, stating that no
Magistrate, Police officer or Revenue officer can be compelled to disclose the source of any
8
Mohapatra, R. (2023, October 13). Privileged Communication under Indian Evidence Act. CLATalogue.
https://lawctopus.com/clatalogue/clat-pg/privileged-communication-indian-evidence-act/
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information about the commission of an offence if it concerns public revenue or general
offences.
5) Section 126 Professional Communication
Section 126 of the Indian Evidence Act encompasses Professional Communication and outlines
specific provisions:
It prohibits a barrister, attorney, pleader or vakil from disclosing any communication made to
them by or on behalf of their client or any advice given by them to the client during the course
and for the purpose of their professional engagement.
Additionally, it bars the disclosure of the contents or conditions of any document the legal
professional has become acquainted with in the course of their employment for the client.
The section expressly exempts certain scenarios from protection against disclosure. It doesn’t
safeguard communications made in furtherance of illegal purposes or facts observed by the
legal professional during their employment that indicate the commission of a crime or fraud
since their engagement began.9
There are exceptions to this rule:
• With the express consent of the client (under section 128)
• Information that falls into the possession of a third person
• In case of a lawyer’s suit against the client
• Documents that have already been officially placed on record.
6) Section 127: Application to Interpreters, etc.
This section extends the provisions of Section 126, which relate to the disclosure of
communications between a lawyer and a client, to interpreters, clerks or servants of barristers,
pleaders, attorneys and vakils. These individuals are bound by the same confidentiality
requirements.
9
Privileged Communication: Section 122 to 129 Indian Evidence Act. (n.d.).
https://www.legalserviceindia.com/legal/article-10388-privileged-communication-section-122-to-129-indian-
evidence-act.html
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7) Section 128: Privilege Not Waived by Volunteering Evidence
Section 128 stipulates that if any party in a legal proceeding gives evidence on their own accord
or otherwise, it does not imply their consent to disclose information protected under Section
126. However, if a party in a legal proceeding calls their barrister, pleader, attorney or vakil as
a witness and questions them on matters they would otherwise not be at liberty to disclose, this
action implies their consent to disclosure in that specific context.
8) Section 129: Confidential Communications with Legal Advisers
Under Section 129, no one can be compelled to disclose to the Court any confidential
communication between themselves and their legal adviser. However, if the person offers
themselves as a witness, the Court may compel them to disclose communications necessary to
explain the evidence they have given. The Court can demand the revelation of only those
communications essential for clarifying the testimony, not any others.10
III. Different Types of Privileged Communication
Communication takes place when some information is exchanged between two or more
individuals. When a person communicates with another with the intention of keeping the
exchanged information private, itis a confidential communication. People involved in this
communication, trust each other to keep the communication private and in confidence. The
Indian law protects some types of confidential communication.
1) Communication during marriage.
Any communication that takes place between a husband and wife is protected as privileged
communication. The communication between a wife and husband is not protected when the
marriage is dissolved. This is not an absolute privilege. The communication between the
husband and wife will be considered as evidence if it relates to a criminal act. The
communication between the wife and husband is protected when it is confidential or sensitive.
The communication is protected even if it is not sensitive or confidential. Where the husband
10
Privileged Communication in Evidence Act. (2023, November 16). Law Bhoomi. Retrieved June 21, 2024,
from https://lawbhoomi.com/privileged-communication-in-evidence-act/
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was accused of murder, the wife was called in to give a testimony against the husband, the
testimony can relate to the act and conduct of the accused (husband).
2) Affairs of the State
No information can be disclosed from the unpublished official records which relate to state
affairs. To do so, the permission of the relevant department head is necessary. A privilege is
claimed on the documents and other communication by public officials relating to affairs of
the state. The privilege should be claimed either by the minister, or his secretary, or by the head
of the department. The usual method of claiming the privilege is by filing an affidavit. Where
the non-disclosure of certain information has a greater adverse impact on the public interest
than its revelation, such communication may not be protected by state privileges.11
3) Official communications
When any communication takes place in the official confidence, the public officer is not
compelled to share the same. 10When a court requires the disclosure of service records of a
public official suspected of wrong doing, the state cannot claim such privileges.
4) Information as to commission of offences
No revenue officer or magistrate can be compelled to share any information, which is about
the commission of crime.
5) Professional communications
A pleader, barrister, attorney or vakil are prohibited from disclosing any information shared
with them by a client. Privileged communication between a legal advisor and client shall not
be compelled to be disclosed in court. The relationship between a lawyer and client is
considered a professional relationship and the communication during this time is privileged.
Such communication should have taken place during the course of employment. The
communication can only be disclosed when the client gives an express consent for the same. A
legal professional is also prohibited from sharing any information contained in any documents.
There are two exemptions made under this provision. The communication can be disclosed:
11
Verma, A. (2020, March 28). Privileged Communication under Indian Evidence Act, 1872 - iPleaders. iPleaders.
https://blog.ipleaders.in/privileged-communication-under-indian-evidence-act-1872/
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• If the intention is of committing an activity which is illegal.
• If a fraud or crime is committed. This should have occurred in the course of employment
The privilege is not waived until the client calls their legal representative to testify. This will
entail that the client has agreed to disclose the details of a privileged communication.
6) Privileged communication between doctor and patients
Information given to a doctor remains protected communication, especially when relating to
sensitive illnesses. This privilege, however, could be waived if the patient's health is in jeopardy
and/or the information is thought to be crucial to the case. The privilege also does not stand
when the health condition of the patient affects someone else. For example, the HIV+ diagnosis
of a person is important to be brought to the knowledge of their possible future spouse.12
IV. Exceptions to Privileged Communication
Privileged communication is not absolute. There are certain exceptions to privileged
communication. The disclosure can be compelled in the following scenarios:
1) In case of a fraud or crime
When the privileged communication takes place with the intention to commit a fraud or crime
in the future, it cannot be protected. If a client seeks legal advice with the aim to commit fraud
or to carry out an unlawful act, then it cannot be protected. A lawyer can also not protect a
disclosure made by their clients which results in a fraud or a crime.
2) In the case of patient's health
A doctor can be compelled by the court in the cases when it is vital to disclose the necessary
information. If the patient's mental state or his health is in question, then the privileged
communication between the patient and the doctor will not apply. The case should be directly
impacted by the information provided by the doctor and the patient's health. Such
12
Manupatra. (n.d.). Manupatra Academy. Retrieved June 21, 2024, from
https://manupatracademy.com/LegalPost/Different_Types_of_Privileged_Communication#:~:text=Privileged%
20communication%20is%20communication%20protected,used%20as%20evidence%20in%20court.&text=Com
munication%20is%20considered%20privileged%20only,the%20parties%20is%20legally%20recognized.
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communication is also not protected by law when made to a future possible spouse about
diagnosis of HIV+.
3) In the case of waiver
When someone abandons the right of privileged communication, it is called a waiver. This is a
voluntary act. When any party to the privileged communication, themselves agree to disclose
the information, the court allows the same. No objection can be raised in the later stage, after
the information is introduced.
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CONCLUSION
Privileged communication in the Indian Evidence Act safeguards certain confidential
exchanges from disclosure in legal proceedings. The Act protects the sanctity of discussions
between clients and their legal representatives, extending this privilege to interpreters and
support staff.
This shield also encompasses discussions between spouses and professionals like doctors or
counsellors, ensuring the confidentiality necessary for trust and candidness in these
relationships. The recognition of privileged communication balances the need for privacy with
the demands of legal transparency. This provision is pivotal in upholding confidentiality within
specific relationships, fostering an environment of honesty and confidence.
Only certain relationships are deemed privileged. They are protected because one must place
complete trust in the other and provide facts that could be detrimental to them as well as their
reputation. The foundation of this idea is to protect the trust that a client has in a legal
professional, a patient in a medical professional, and spouses in one another, and so on and so
forth. This provision is critical for maintaining confidentiality among particular relationships
and cultivating an environment of trust and honesty.
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BIBLIOGRAPHY
Books
1) Dr. Avtar Singh. (2017) Principles of The Law of Evidence.: Central Law Publishing.
2) Chief Justice M. Monir. (2015) Textbook on The Law of Evidence.: Universal Law
Publishing.
Websites
1) Google Books https://books.google.com
2) Google Scholar https://scholar.google.com
3) Indian Kanoon http://www.indiankanoon.com
4) Jstor https://www.jstor.org
5) Scribd https://www.scribd.com
6) Scroll https://scroll.in
7) Wikipedia https://en.wikipedia.org/wiki/Main_Page
Articles
1) Jodha, A., & Jodha, A. (2024a, February 3). Privileged communication under the
Indian Evidence Act, 1872. My Exam : EduBlog of ALLEN Career Institute - ALLEN
Blog. https://myexam.allen.in/privileged-communication-under-the-indian-evidence-
act-1872/
2) Manupatra. (n.d.). Manupatra Academy. Retrieved June 21, 2024, from
https://manupatracademy.com/LegalPost/Different_Types_of_Privileged_Communica
tion#:~:text=Privileged%20communication%20is%20communication%20protected,u
sed%20as%20evidence%20in%20court.&text=Communication%20is%20considered
%20privileged%20only,the%20parties%20is%20legally%20recognized.
3) Mohapatra, R. (2023, October 13). Privileged Communication under Indian Evidence
Act. CLATalogue. https://lawctopus.com/clatalogue/clat-pg/privileged-
communication-indian-evidence-act/
4) Privileged Communication in Evidence Act. (2023, November 16). Law Bhoomi.
Retrieved June 21, 2024, from https://lawbhoomi.com/privileged-communication-in-
evidence-act/
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5) Privileged Communication: Section 122 to 129 Indian Evidence Act. (n.d.).
https://www.legalserviceindia.com/legal/article-10388-privileged-communication-
section-122-to-129-indian-evidence-act.html
6) Verma, A. (2020, March 28). Privileged Communication under Indian Evidence Act,
1872 - iPleaders. iPleaders. https://blog.ipleaders.in/privileged-communication-under-
indian-evidence-act-1872/
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