Introduction:
When talking in the terms of law privileged communication basically means communication between two persons who have marked duty of fidelity and secrecy towards each other. The communication which takes place between the attorney and client are special and privileged and such communications need to be revealed before the court. No person can ever be exacted to disclose such privileged communication in front of anyone. If for instance, a client conveys his advocate that he has committed a crime, then in such a situation the client’s advocate has no right to disclose the same to any third person. The attorney has the full right to decide whether to deal with the case or not but no right to disclose the information to any other person.
Professional Communication that takes place between the client and his advocate is protected by various statutes like the Indian Evidence Act, 1872, The Advocates Act, 1961 and the Bar Council of India Rules.
The main reason for the existence of Privilege Communication is the value of the society. Some of the established privileged communication takes place between wife and husband, clergy and communicant psychotherapist and patient, physician and patient and attorney and client.
Various alterations in the law have been made by the state in order to give privilege to both the parties. For federal cases, the law of privileged communication is governed by the state law in which the federal court suits.
Qualifications Required for Privileged Communication
Certain requirements are needed to be fulfilled in order to qualify as privileged communication:
- Secure relationship between two people is must for a communication to be regarded as privileged communication.
- The communication must take place in a private setting, and
- No disclosure of information so communicated to the third party.[1]
Privileged Communication not Accepted as Evidence
Privilege communication is a type of communication which occurs privately between two persons. The disclosure of such information is not permitted. The rule of privilege communication exists because the privacy of confidential relationship is valued in society. This is the main reason why privileged communication is not accepted as evidence.
Privileges Associated with Legal Advice and Current Litigation
Each and every type of interaction which takes place between a client and his attorney are considered under privileged communication. The three statues that deal with attorney-client communication is:
- The Indian Evidence Act, 1872
- Bar Council of India Rules
- Advocates Act, 1961
Section 126 to 129 of the Indian Evidence Act basically deals with privileged communication correlated with the professional relationship between an attorney and his client. This privilege is important because of the reason that in case a client doesn’t trust his lawyer then he would not disclose the material facts to him and in return, it will become difficult for the attorney to defend his client in the court of law.[2]
Sec 126 of the Indian Evidence Act states that the attorney has no power to disclose the material facts known to him by his client. No documents can’t also be disclosed by the attorney which he came to know during the course of his employment. The attorney has no right to disclose such material facts even after the termination of his employment.
However their exists some exceptions to the above mentioned rule:
- In case the communication relates to any illegal activity then the rule of privileged communication will not apply.
- In case of any crime has been carried out by the client in due course of the employment of the attorney.
- In case the attorney obtains the consent from the client to disclose the privileged communication.[3]
It must be noted that privileged communication refers to only those kind of communication where there exists the theory of legal advice. Any communication made before the establishment of a confidential relationship shall not be considered as privileged communication.
Section 127 of the Indian Evidence Act further widen the scope of privilege communication and extends it to servants, helpers, interpreters and clerks of the lawyer.
Section 128 protects the lawyers from disclosing any material fact which is covered under Section 126 unless the client himself calls the legal advisor as a witness.
Section 129 restricts the client from disclosing any secret information till the time he himself becomes a witness.[4]
The various rules that an attorney must have towards his client are mentioned in the Rules of Professional Standards, Part VI, Chapter II Rule 7 and 15 of the Bar Council of India Rules.
Position of In-House Council
In case an advocate is in full-time employment then he is restricted from practising his profession as per Section VIII of Rule 47 of Bar Council of India Rules. Therefore, the position of in-house counsel related to the attorney-client privilege is not clear.[5]
In the case of Greater Bombay v. Vijay Metal Works[6], the court stated that since in-house counsel assists his client and provide him with legal assistance and his functions are none the less same as that of an advocate, in such situation protection must be provided to him under Section 129 of Indian Evidence Act.
Other Preparations for Litigation
All the documents framed by the client in relation to any legal proceeding the same documents shall also form part of privileged communication, this was stated in the case of Larsen and Toubro v. Prime Displays ltd.[7]
Some of the preparations for litigation that come under the preview of privileged communication are:
- Communication made with an intention to get advice for litigation.
- Any communication made with the objective to gain evidence that ought to be used in the litigation.
- All other kinds of communication made in between the client and attorney to obtain information that would further lead to evidence, drafts of legal notices and pleadings and other working papers.
Limitations on Claiming Privilege
There are certain restrictions on claiming privilege. These are:
- When such communication is made with reference to an illegal purpose.
- If the plaintiff himself waives his right.
- In situation the privileged information being disclosed to any person who is not part of the protected relationship i.e. third party. However, one must keep in mind that the third party will not include helpers, clerks of the advocate.[8]
Privileges Associated with Particular Confidential Relationship
Married Persons
Marriage is considered to be a privileged relationship. The communication must take place between husband and wife is a privileged one. This privilege exists even after the dissolution of marriage. No one, not even the court can force a couple to disclose the communication which took place between them.
Section 122 of Evidence Act specifically clarifies that no person has the right to disclose information related to a person to whom he/she was married.
However, when the married person themselves gives consent then there exists no such concept of privileged communication.
Religious and Spiritual Advisors
The privilege prevents the confession made by a priest to be bought before the court of law. This privilege allows a person to speak comfortably before his religious advisor. This is most common among the Catholic Religion.
Doctors and Psychologist
There exists a privileged relationship between a doctor and his patient. This protected relationship makes communication between them as privileged communication. In case the doctor leaks the information the licence could be cancelled by the Medical Council of India.
Informers
Section 125 of the Evidence Act states that no police officer or revenue officer can be asked to leak the information available to them. This section confers that the identity of such informers is protected so that no harm is caused to them.
Journalists
Reporter’s Privilege or Press-Source Protection Privilege is the privilege which safeguards the journalists. However, in India, the position of the courts regarding this issue is not clear.
In India, the privilege of journalists is granted by The Press Council of India Act, 1978. Sec 15(1) of the Act deals with the general power of the press council of India and 15(2) states that despite the powers granted to Press Council of India, it can compel any newspaper, news agency, editor or journalist to disclose their source of information.[9]
Under English Law
When talking about English Law there are basically two types of privileges granted to an attorney-client relationship:
Legal Advice Privilege
This privilege is to an extent similar to the privilege granted under Section 126 of the Evidence Act. It basically safeguards all the material facts or information exchanged between a client and attorney with an intention to receive legal advice.
Litigation Privilege
This is similar to Section 127-129 of Evidence Act. This privilege protects all the documents which are being exchanged between lawyers and his client.[10]
The only point of difference between Indian Law and English Law is that in Indian Law information related to illegal purpose is not covered under privileged communication whereas in English Law any such illegal facts exchanged between client and lawyer is covered under privileged communication.
Conclusion
There exist certain relationships that are protected. The main reason why they are protected is that they can disclose the information with full confidence. This makes the requirement of privileged communication necessary because if the rule of privileged communication didn’t exist then the client would always be worried about the disclosure of his information or patient be tensed about the leakage of the information by his doctors. No one would dare to ask for professional advice and no man could safely go to the court to find redressal or to defend himself.
References:
[1] https://www.blog.ipleaders.in//privilegedcommunication.in(visited on 19th Oct, 2020).
[2] https://www.hfw.com//lawofprivilegedcommunication.in(visited on 19th Oct, 2020).
[3] https://www.blog.ipleaders.in//privilegedcommunication.in(visited on 19th Oct, 2020).
[4] https://www.hfsnotes.in//legaladviceprivilege.in(visited on 19th Oct, 2020).
[5] https://www.blog.ipleaders.in//privilegedcommunication.in(visited on 19th Oct, 2020).
[6] AIR 1982 Bom 6.
[7] 2002 (5) BomCR 158, 2003 114 CompCas 141 Bom.
[8] https://www.lexology.com//privilegedcommunication.in(visited on 19th Oct,2020)
[9] https://blog.ipleaders.in//privilegedcommunication.in(visited on 19th Oct,2020)
[10] https://www.ipleaders.in//privilegedcommunication.in(vsited on 19th Oct, 2020)
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