Privileged Communication under the Indian Evidence Act 1872: Safeguarding Trust and Privacy
The concept of privileged communication, as depicted in the popular TV show ‘Suits,’ revolves around confidential conversations between parties in legally recognized protected relationships. This article aims to provide a comprehensive overview of privileged communication in various protected relationships, the extent of the right to privacy, and its application in different countries.
Privileged Communication refers to confidential interactions between parties within legally recognized protected relationships, where information cannot be disclosed to third parties, even in a court of law. The law prohibits individuals or corporations from revealing the contents of such privileged communications.
Professional communication between a lawyer and a client
Section 126 of the Indian Evidence Act imposes a statutory obligation on advocates not to disclose, without the client’s consent, any communication, document contents, or advice exchanged during the course of their professional relationship. This obligation persists even after the termination of the attorney-client relationship, following the “once privileged always privileged” principle.
Section 126’s privilege is subject to certain exceptions, including:
- Communication made in furtherance of an illegal purpose.
- Knowledge of a crime or fraud committed during the attorney-client relationship.
- Client’s consent to disclosure.
- Information falling into the hands of a third party.
- When a lawyer sues the client for professional purposes.
Section 127 extends Section 126’s provisions to interpreters, clerks, servants of barristers, pleaders, attorneys, and vakils. In cases involving child victims, the Delhi High Court ruled that a child can waive the privilege of counselor-client confidentiality if done knowingly and voluntarily and in the child’s best interest, with reasons for the waiver recorded in writing.
In the case of Karamjit Singh v. State, the Court affirmed that one cannot demand disclosure of professional communication and documents between attorney and client under the Right to Information.
In the case of Board Of Directors, Y.M.C.A. v. R.H. Niblett, the Court emphasized that in defamation cases, if evidence is proven to be privileged, the burden to prove express malice lies on the plaintiff. The privilege remains intact even if third parties (clerks, typists, copyists, etc.) lack a legitimate interest in the subject matter.
Privilege cannot be waived by voluntary evidence
Section 128 clarifies that a client presenting evidence regarding privileged communication does not waive the privilege. However, if the client asks questions related to confidential communication, it constitutes an implied waiver.
Confidential communications with legal advisers
Section 129 prohibits clients from disclosing privileged communications, lifting some restrictions imposed by Section 126. Both clients and attorneys are not obligated to divulge privileged communications to third parties.
Privileged communication under the Companies Act, 1956
Job agreements and bylaws of companies often mandate the confidentiality of communications. Section 251 of the Companies Act, 1956 (now Section 227 of the Companies Act, 2013) stipulates that legal advisers, bankers, or corporate bodies should not be required to disclose privileged communication to government authorities.
Rules on Professional Standards
The Bar Council of India (BCI) establishes rules on professional standards for advocates, reinforcing attorney-client privilege. Rule 7 prohibits advocates from breaching the obligations under Section 126 of the Evidence Act, subjecting violators to disciplinary proceedings. Rule 15 prevents advocates from misusing or taking advantage of a client’s confidence, also leading to disciplinary actions.
Privileged communication between a married couple
Section 122 of the Indian Evidence Act protects confidential communication between spouses during their marriage. However, there are exceptions:
- Acts or conduct apart from communication can be disclosed.
- Spousal consent to disclosure waives the privilege.
- In suits or criminal proceedings between spouses.
- Communications made before marriage or after marriage dissolution.
In Nagraj Alias Kumar v. State of Karnataka, the Court clarified that privilege extends to all communications, regardless of their confidentiality. Only the spouses involved can waive the privilege, not witnesses. The Court cannot permit witnesses to disclose privileged communication without the consent of the party against whom the evidence is presented.
In M.C. Verghese Vs. T.J. Poonan and Anr., the Supreme Court determined that Section 122 protects only communications during marriage, extending even after marriage dissolution or the death of a spouse. Communications before marriage or after dissolution do not fall under Section 122’s purview.
Privileged communication between a doctor and patient
In India, The Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002 govern medical professionals’ conduct. Rule 7.14 mandates that registered medical practitioners cannot disclose patient secrets learned during their professional practice, except under specific circumstances:
- A court order.
- Serious risk to a person or community.
- In cases of notifiable diseases, public authorities must be informed promptly.
Rule 7.17 prohibits the publication of patient photographs or case reports without their permission unless their identity remains confidential.
Chapter 8 of the Rules empowers the Medical Council of India (MCI) to take disciplinary actions against medical practitioners violating physician-patient privilege, including removal.
The case of Mr. X Vs. Hospital Z established that confidentiality has exceptions, such as disclosing privileged communication if it poses a serious risk to a person’s health. Public interest can override confidentiality rights.
Right to Privacy and Privileged Communication
Article 21 of the Indian Constitution protects the right to life and personal liberty, encompassing privacy. While privacy is not explicitly mentioned, judicial interpretations have expanded its scope under Article 21.
Laws, such as Sections 122 and 126-129 of the Indian Evidence Act and rules like Rules 7 and 15 of the BCI Rules for attorneys and Rules 4.14 and 4.17 of The Indian Medical Council Regulations for medical practitioners, prevent the disclosure of privileged communication. Violating these laws constitutes a breach of the right to privacy under Article 21 of the Indian Constitution.
In Vishal Kaushik v. Family Court, the Court ruled that recording conversations between spouses without one’s knowledge is inadmissible evidence, amounting to a breach of privacy under Article 21.
Various laws and regulations obligate parties within protected relationships, such as attorney-client, doctor-patient, and husband-wife, to uphold the principle of privileged communication. This principle aims to preserve the trust placed by clients, patients, and spouses in these relationships. However, this privilege is not absolute and is subject to specific exceptions. Violations of these laws can result in legal consequences and are considered breaches of the fundamental right to privacy.