Introduction:
A court is a place where legal cases are fought. These are fought not with swords and axes but with documents and statements, but there are some similarities between the ancient ground battles and the modern court battles. The similarity is of rules, strategy, and thought process. You have to fight fairly and mention some things to the opponent before the battle starts, but not everything. The same thing happens in a court battle, you have to inform the court and the opposite side of some of your strategy, but not all. As per the law, you are not mandated to show every document you possess related to the case to the other side and to the court. This law exists so as to maintain fairness. And it exists so that your opponent is not able to view your strengths and weaknesses. These documents which do not fall in the mandate to be shown are known as privileged documents. Privileged means possessing special rights.
What are Privileged Documents?
Privilege is a legal right that is provided to the parties involved in a court case. It gives the party involved a right by which they are not mandated to submit some documents during the disclosure of documents stage of litigation. These documents are called privileged documents. Privileged documents are confidential in nature so that no one gets a hand over these and disturbs the fairness.
These documents are presented in front of the court when the side wants to present it as there is not a particular period to submit them. Neither the judicial discretion nor the opposition party can force the side possessing it to be shown because the law itself allows the non-disclosure of such documents.
Nature of Privileged Documents
• It is a legal right. It is a negative right as they legalize concealment of important documents related to the case.
• They are confidential so as to maintain fairness.
• The side possessing it can make the documents visible to the court and the other side on their own will.
• No law or judicial procedure can force the side possessing it to be shown.
• The conversation between attorney and client, and the documents prepared for litigation counts as privileged documents.
All documents which are not mandatory to be shown while the disclosure stage qualifies for privileged documents, but the court of law demands an explanation from the side enjoying this relaxation.
Illustration
1.) Suppose someone files a complaint against you, and a case is brought up in the court against you. You hire a lawyer to fight the case on your behalf. Later you have a series of conversations with your lawyer regarding the case via E-mail or letters, and the content of the conversation is the strategies your lawyer will implement in the court of law against the opposition. These conversation counts to privileged documents, and are not to be submitted during the disclosure stage as they are substantial. If the opposition gets a hand over these conversations they will have an undue advantage over you as they know your tactics and the materials your lawyer is going to use to help you win the case.
2.) Let us take another example that someone vandalizes your property and you file a case against the person who committed vandalism. You then hire a surveyor to create a report for the assessment of damage and calculate the amount of damage done to the property. That report counts as a privileged document because to submit it before the court or not is your decision and no one is going to force you for its submission.
Why are Privileged Documents a Legal Right?
Even though it is a negative right, its existence is very important in the field of law because:
• It a means to deliver justice to the one seeking it.
• It ensures a free and fair trial.
• It prevents both the party from taking undue advantage of other party’s confidential documents and gives provides them a uniform platform which helps them create unbiased and uninfluenced arguments.
If privilege is not a right, and if everything is to be disclosed then the clients of the attorneys of both sides won’t disclose points which would act as their weakness which would lead to the attorneys having incomplete knowledge about the case and the client’s history related to the case. It is possible that a man would not even venture to consult any skilled attorney if such a legal right didn’t exist.
The General Principle of Privilege Documents
The general idea of privileged documents is that anything created before litigation has commenced is not privileged and anything created after litigation has commenced is privileged, but it is a bit more complicated than this. The actual legal test of whether a document is covered by litigation privilege. The main reason for the test is to find out whether the document was created in the contemplation of the litigation.
If someone takes a photo because he/she wants to commence litigation or someone else wants to then that photo will be privileged.
The report created by the surveyor in Illustration 2 counts to privilege documents even though the report was created after the commencement of litigation.
So although most documents created after litigation has commenced are privileged it is actually why the creator of a document created it which determines whether it is privileged or not.
Sometimes people seek legal advice just so they know what their rights and duties are, without any litigation being in sight and emails/letters seeking that advice, and the written advice itself, are also privileged. This is known as legal advice privilege.
Law Regarding Privilege
Section 126 to 129 of The Indian Evidence Act 1872 deals with privilege legal privilege.
Section 126 of The Evidence Act restricts barristers, attorneys, pleaders or vakils from providing the communication made between him/ her and the client or any advice provided by him/her to the client unless the client expresses the attorney to do so.
Section 128 of The Evidence Act states that an attorney, barrister, or vakil will have to disclose information about the privileged documents if he is called as a witness and is questioned about it.
Section 129 of The Evidence Act states that the client would not be compelled to disclose to the court any confidential communication between the client and his lawyer.
Exceptions
• Any communication made in furtherance of any illegal purpose. For e.g. Ramesh kills his brother with a dagger for his property and then seeks advice from his attorney, as to how should he get rid of the murder charges. This communication is not privileged.
• Facts that prove the commitment of crime or fraud.
• If a document loses its confidentiality then it does not counts to privilege document.
• It only extends to attorney-client relations and therefore, advice taken from a friend will not subject to privilege.
Important case laws:
• Munchershav Bezanji v. The new Dhurumsey S. & W. Company
The court came to the conclusion that 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.
• D. Veeraseharan v. State of Tamil Nadu
In this case, an unsigned and undated letter was allegedly written by the advocate-accused to his client-terrorist to remain absconding. In the third paragraph, the advocate abetted the accused to abscond as it was the only way to say himself from the clutches of law. As it was a communication between the advocate and its client it was named as a privileged document, and could not be used against the advocate for the charges of abetment.
• Gurunanak Provisions Stores v. Dalhonumal Savanmal
In this case, the Gujarat High Court held that disclosure was allowed where the client desired to obtain a decree for money on the basis of the forged promissory note.
Conclusion
Privileged documents hold vital importance as it is a source to get to justice. This is the means through which a client can freely communicate with his lawyer regarding the case. This right safeguards client’s sensitive information regarding the case. The case of a side is built on the trust between the client and his/her attorney, and this right helps the client to trust his attorney. The existence of privileged documents is the only reason that a client can mention his mistakes and his weaknesses in the case to his lawyer. If privilege did not exist then a man would think a hundred times before consulting a lawyer, or the chances are that he wouldn’t consult at all because then there would be a fear of his weak points being disclosed and be used against him/ her in the court to win the case. More than the knowledge of a lawyer, a client eases up on the trust in his relationship with the lawyer.
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