Communications that are Preserved under Privileged Communication u/s 93 of IPC

Introduction:

In law, a privilege is a rule that protects the communication between certain relationships from being compelled to be disclosed before any court proceedings. It is a right conferred upon a person against the disclosure of certain information within his knowledge. Therefore, privileged communication is a fundamental legal right used as a powerful device in truly advanced legal systems. Once it is ascertained that any communication or document related to such communication falls within privileged communications, it becomes inadmissible before any court of law as evidence.

Hence, privileged communications are excluded from the ambit of evidence either absolutely or partially. An absolute privilege is a complete defense under law, even when certain communications are of malicious intent. The reason behind granting such protection to privileged communications is to preserve valuable relationships and the professional secret associated with them. It is related to private communications between parties and restricts any court proceedings from compelling its disclosure.

Qualified Privileges

Qualified privileges are those communications made by any person to protect his interest or made under social, legal, or moral duties towards another person. It is not an absolute privilege and must be in good faith, or the discharge of duty, or for the public good. The following are the qualified privileges under the law:

Spousal Communications

The confidential communications made between spouses in their private space are treated as privileged communications to protect their marital harmony, allowing either spouse to prevent the other from disclosing it. Section 122 of the Indian Evidence Act, 1857 grants protection against disclosure of communications made between spouses and restricts such disclosure without the permission of the person who made such communications. Benefits of this arise when proved that the communication took place during the validity of marriage, it was intentionally conveyed between the spouses, and made in confidence to the other spouse. The privilege of spousal communications may be taken away under Section 120 in those proceedings where one spouse is under prosecution for the commission of any offense against the other spouse.

These privileges are Adverse Spousal Testimony and Confidential Communications Privilege. In the former, either of the spouses is prohibited from giving incriminating evidence against the other. It is exclusively available to the other spouse when they are a witness in any court proceeding, but not after a divorce or judicial separation of the spouses. The latter is a privilege excluding revelation of private marital communications by either of the spouses. It is available to the spouses even after their divorce or judicial separation[1].

Marriage is an exclusive institution between the spouses, therefore to protect the privacy between the spouses and to build their trust, spousal communications are privileged communications. It consists of spousal immunity as a fundamental legal rule to ensure that marriages do not end on grounds that one spouse testified against the other in a criminal trial. The spouses are dependent on mutual trust between them, hence a deterrence is imposed on the court proceedings from compelling disclosure of the spousal communications.

Bent vs Allot [21 Eng. Rep. 50 (1580)]

The common law courts were the first to recognize this concept. It was taken into consideration by the courts that both the spouses in matrimony are unitary entities before the eye of the law therefore, one cannot testify against another when communication between them was made with confidence of not being disclosed based on mutual trust.

S.J Chaudhary v. State [1985 CriLJ 622, 1984]

The court provided a wider interpretation to Section 122 of the Evidence Act, recognizing the concept of marital confidence, and the communications made between the spouses during their wedlock are sacrosanct. Hence, spousal communications should be considered a privilege.

Healthcare Communications

The relationship between a doctor and their patient is on mutual trust and confidence, therefore it is treated as privileged communication under law. There is a prohibition on the doctor from revealing any such communication made by their patients in the court of law. They are bound by the Hippocratic Oath on non-disclosure of certain information communicated by their patients. Furthermore, Section 22-A and Section 33(m) of the Indian Medical Council (Amendment) Act, 1964 impose statutory obligations on doctors to protect the privileged communications made during the medical treatment of their patients.

The rationale behind treating healthcare communications as privileged is that the patient needs to disclose everything about his illness for accurate diagnosis by their doctors, therefore, such communications should be made without the fear or apprehension of disclosure. Because of the same reason, even if they are disclosed by the doctor, they are inadmissible as evidence. However, healthcare communications are not absolute privileges, and are subject to certain exceptions:

1. Revealed with consent: A doctor may disclose such confidential communications made by their patients when there is consent by that patient or the guardian of that patient if they are minor or mentally incapable of giving their consent.
2. Orders of the court: When the court of competent jurisdiction has mandated the doctor to reveal confidential communications with a patient in the interest of justice and good faith, it can be disclosed.
3. To obtain further treatment: When one doctor has to seek consultation from another medical expert for further treatment of their patient, there can be a disclosure of information communicated by the patients to protect their interests and provide better treatment.
4. Protecting interests of others: The doctor is not bound to conceal communications made by their patients when it concerns the interests of other persons as well. For example, transfer of information about patients suffering from STDs to their partners or spouses if the doctor deems it necessary to protect their interests.

The increasing concern around disclosure of information made by HIV/AIDS patients has created a conflict between the legal and ethical obligations of doctors. Section 93 of the Indian Penal Code, 1860 attempts to bridge the gap between such legal and ethical contradiction. The disclosure of information made by any doctor or medical expert for the benefit of a person in good faith is not a punishable offense. Section 9 and Section 8(2) (d) of the HIV and AIDS (Prevention and Control) Act, 2017 make it mandatory for doctors to disclose such information in only certain exclusive situations.

Mr.X v. Hospital Z [1998 7 SC 626]

The court recognized that apart from the legal responsibility towards their patients, doctors also have an ethical responsibility towards the general public. Therefore, they have to fulfill those obligations towards society when it concerns larger interests than their patients, especially in those medical cases where patients are suffering from communicable chronic diseases which could spread and cause injury to others. Disclosure of privileged communication of an HIV patient to their potential marriage partner is not a breach because it is done to protect the interest of society at large.

Duchess of Kingston Trial [(1776) 20 Howell’s State Trials 355]

The common law court laid down the landmark precedent that if a doctor reveals information about their patient in a court of law, bound by any statutory obligations, they should not be imputed for the breach of privilege or indiscretion exercised by them.

Advocate-Client Communications

The ‘advocate-client communications’ developed as a privilege through the common law system in the interest of the administration of justice and the public good. The key objective was to encourage a fiduciary relationship between the advocate and their clients. This has also been adopted within the legal fraternity worldwide as a professional secret. Advocates can exercise the refusal of testimony against their clients. It is the general norm that the relationship between advocate and client is based on confidentiality, and non-disclosure of their communication without the client’s consent.

Section 126 of the Indian Evidence Act, 1857 restricts disclosure of communications made between the advocate and their clients in professional employment. Such a prohibition covers all those communications made in confidence relating to the pending or decided cases, or for advisory. The provision was inserted with the object of ensuring frank communication with the advocates without apprehension of information being passed to their adversary[2]. To get the benefits of this privilege, the following essential conditions need to be fulfilled:

1. That the communication has been made to advocate, lawyers, pleader, or any other authorized legal professional;
2. That the communication has been made by the client of that advocate;
3. That the communication was made solely for professional employment for the advocate, or legal advisory to the client.

However, it must be noted, this privilege is not absolute. Those communications made in the furtherance of an unlawful act/omission or illegal object, are not protected as privileged communications. The advocate is duty-bound to disclose any information in his knowledge about any commission of a crime by his client during his professional employment[3]. The communications may also be disclosed by the advocates on the consent of their clients, or when the advocate himself has moved to the court of law against their client’s non-performance of contracts. 

Ayasha Bi v. Peer Khan Sahib [AIR 1954 M 741]

The court has further clarified that concerning the application of Section 126 that the privilege is for the client and not their legal advisor. The client cannot be compelled to disclose any confidential communication made to the legal advisor, whether documentary or oral, in the course of the professional employment. Such privilege does not lapse on either the death of the client(s) or the completion of the litigation process.

Conclusion

It is an undisputed fact that these privileged communications emerged out of social necessity and public interest at large. When two people are related through mutual trust and confidentiality, it becomes the duty of the law to protect their communications and prevent their disclosure. However, they are not absolute and can be disclosed in exceptional situations where the demand arises in the interest of justice and the public good. The exceptions to privileged communications have also evolved. There is a need for flexibility in the application of these privileges so that they do not obstruct the administration of justice, for example, relaxation in disclosure by advocates when it does not implicate the client.

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References:

[1] United States v. Lilley [581 F.2d 182]

[2] Gaurav Singla, Emerging issues of privileged communications a socio legal study, Shodhganga@INFLIBNET, (23^rd October, 2021, 18:00 PM) http://hdl.handle.net/10603/330473

[3] Mathai v. State [AIR 1954 Raj. 141]