What are Privileged Communications? Under what circumstances the privilege can be claimed?

Question: What are Privileged Communications? Under what circumstances the privilege can be claimed? [M.P.C.J. 2012, U.P.C.J. 2006, 2013, 2016, BIHAR J. 1980, 1984, 1986, U.P.H.J.S. 1996]

Find the answer to the mains question only on Legal Bites. [What are Privileged Communications? Under what circumstances the privilege can be claimed? [M.P.C.J. 2012, U.P.C.J. 2006, 2013, 2016, BIHAR J. 1980, 1984, 1986, U.P.H.J.S. 1996]]

Answer

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 communications are of two kinds, namely, those which are privileged from disclosure and those which are prohibited from being disclosed.

There are certain communications that should not be disclosed. The law, therefore, does not permit them to be disclosed even if the party possessing that information wishes to disclose it. 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 the State is supreme and overrides that of an individual. This protection from disclosure is to be found in the following provisions of the Act.

The type of privileged communication have been mentioned under sections 122 to 129 of the Indian Evidence Act

Section 122: Communications during Marriage

A person cannot be compelled to disclose any communication made to him or her during marriage by any person to whom he or she is or has been married; nor will such communication be permitted to be disclosed except in the following three cases, viz.,

1. if the person who made it, or his or her representative-in-interest, consents, or
2. in suits between married persons, or
3. in proceedings in which one married person is prosecuted for any crime committed against the other.

Thus, Section 122 prevents communications between a man and his wife from being disclosed. It is important to note that the protection is limited to such matters as having been communicated ‘during the marriage’. Such communication (during the subsistence of marriage) remains protected even after the dissolution of marriage5 or when one spouse dies. But those made either before marriage or after its dissolution are not protected (M.C. Verghese v. T.J.Ponnam, (1969) 1 SCC 37). Further, the privilege is for the communication and not to be the witness. The section says that a spouse shall not be compelled to disclose such communication and that they shall not even be permitted to disclose even if he or she volunteers to do so.

Section 124: Official communications

“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.”

Here it is a matter of privilege which the public officer can claim when he is asked for certain information in a court if he wishes he may not answer the questions and can take cover under this section by taking the grounds that the statements were made to him under official confidence and he thinks that public interest would suffer if he discloses that information. 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.

Section 125: Information as to Commission of Offences

“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.”

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: Professional Communication

Communications between advocates and client, or professional communications.—Communications made by a client to his vakil for the purposes of his professional employment, are not permitted to be disclosed. The prohibition extends to all communications made in confidence pertaining to any pending or contemplated case or for the purpose of soliciting professional advice.

The section allows persons to communicate fully and frankly with their lawyers without any fear that the information given by them can be passed on to the opponent or to the court. In the absence of this prohibition, it would have been difficult for anybody to get the best professional advice.

This privilege is available subject to a few conditions. In the first place, the communication should have been made to a “barrister, attorney, pleader or vakil”.

Secondly, it is necessary that the communication should have been made by a person who is related to the vakil as a client. Thus, where a plaintiff’s vakil rang to the defendant to give him friendly advice and the defendant made damaging admissions, it was held that the vakil could give evidence of what the defendant said because he was not the defendant’s vakil

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.

If there arises a case in which a person goes to an advocate hoping to get his services and, in the regard, says all the information about him, but afterwards, he decided not to take his services, then all the communications that passed between the person and the advocate are protected under this section.

The same situation also applies to doctors. It is a settled law that doctors can not divulge the information gained during their professional communication to any person unless the patient or the person who gave the information to the doctor in confidence agrees of it being disclosed. This was held in the case of P.B. Desai v. State of Maharashtra [(2013) 15 SCC 481].

Section 129: Confidential Communications with Legal Advisors

In the previous sections, we saw that the protection was given to the legal advisors and advocates that they can’t be compelled to disclose information about their clients 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.

In the case of Moher Sheikh v. Queen-Empress, [(1893) 21 Cal 392, 400] it was said that the section uses the word compelled to disclose in reference to the case when a person has given himself as a witness and it must refer to some amount of force given by the court.

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