NAME - ANUSHKA JHA

SUBJECT- EVIDENCE LAW

ROLL NO. - 1683025

BRANCH - B.A. LL.B.(A)

TOPIC - PRIVILEGED COMMUNICATIONS

DATE- 1/04/2019
INTRODUCTION-

Privileged communications in evidence law means the information which cannot be

admitted in court of law due the nature of relationship shared by the persons entangled.
The Indian Evidence Act enshrines three types of privileged communications namely,
spousal privilege, attorney- client privilege and state privilege.The privilege of a
witness means the right of a witness to withhold evidence to disclose certain
matters.Privileged communications are of two kinds namely Absolutely privileged
and Qualified privilege. The sections 126 to 129 deal with privileged legal
communications, section 122 deals with spousal privilege, section 123 deals with state
privilege, section 121 deals with privilege of judges and magistrate and section 124
deals with privilege of official communications. The rational behind these privileges
is to protect the disclosure of information during the subsistence of confidential or
protected relationships.

TYPES OF PRIVILEGED COMMUNICATIONS.

[A] SPOUSAL PRIVILEGE:-

Section 122 of the Indian Evidence Act deals with privileged communications
between spouses, it protects every communication amongst them during the time of
marriage and prevents it from being brought to the court as an evidence. The origin of
this law can be traced in the medieval jurisprudence which encompasses two reasons
namely, the rule that an accused was not permitted to testify in his own behalf because
of his interest in the proceeding; second, the concept that husband and wife were one,
and that since the woman had no recognized separate legal existence, the husband was
that one. From those two now long-abandoned doctrines, it followed that what was
inadmissible from the lips of the defendant-husband was also inadmissible from his
wife. The wife was considered as a belonging of the husband and did not have an
identity of her own and her testimony was considered to be self-incrimination. The
privilege is applied to communications even after the dissolution of marriage and
divorce but only on the communications made during marital relation.1 It also allows
the conduct influenced by the communication, or the spouse witnessing the other
spouse doing a criminal act, to be admitted as evidence in the courts, i.e. an effect of
the communication can be brought to court but not the communication itself.2 The
rational behind protecting such communication is to protect the martial ties which is
the considered the foundation of society. The disclosure of matrimonial
communications may be made with the express consent of person who made the
communication or his/her representative. If the spouse, who made the communication
to the other party, gives his consent, the other spouse may be permitted to depose
about the communication made during the marriage.3 And secondly, when crime is
committed against another. The privilege ceases to exist in suits between the husband
and wife or in criminal proceedings in which one spouse is prosecuted for a crime
committed against the other spouse.4

1
M.C. Vergliese v. T.J. Ponnam, A.I.R. 1967 Ker. 228 (India).
2
Bhalchandra Namdeo Shinde v. The State Of Maharashtra, 2003(2) Mh.L.J. 580 (India).
3
Nawab Howladar v. Emperor, I.L.R 1913 40 CAL (India).
4
Fatima v. Emperor 1950 (15) Cr.L.J. 613 (India).
[B] PRIVILEGED LEGAL COMMUNICATION:-

Section 126 to 129 of the Indian Evidence Act deals with privileged communication
between attorney and his client, also known as privileged professional
communications. The communication between two such persons in furtherance of the
professional employment of the advisor is protected and the legal advisor cannot be
made to disclose such information.This principle is based on the fact that its in
existence would render advocates incapable of defending their clients. Clients would
constantly worry about being exposed by their attorney and would not be inclined to
share the entirety of details of their case. Section 126 and 128 enshrines conditions
under which the legal adviser can give evidence of such professional communication.
Section 127 provides that interpreters, clerks or servants of legal adviser are restrained
similarly. Under Section 126, it isn't that each correspondence made by an individual
to his legitimate consultant is shielded from divulgence yet just those interchanges
made secretly so as to acquire proficient counsel are special. It ought to likewise be
recalled that the privileged expands simply after the production of pleader-client
relationship and not before that.5 Section 129 says when a legal adviser can be
compelled to disclose communication which has taken place between him and his
client. Section 129 applies where a client is investigated, regardless of whether he is
involved with a suit or not. Section 129 states that no individual will be constrained to
unveil in the Court any correspondence among him and his lawful counselor except if
he offers himself as witness. Therefore, section 129 makes an individual invulnerable
from mandatory procedure. Any communication made in furtherance of any illegal
purpose and any fact observed in the course of employment showing that any crime or
fraud has been committed since the commencement of the employment are exceptions
to the rule enshrined in section 126. A legal advisor is under an ethical commitment to
regard the certainty rested in him and not to reveal interchanges which have been
made to him in expert certainty for example in the course and with the end goal of his
business, by or for the benefit of his customer, or to State the substance or states of

5 Kali Kumer Pal v. Rajkumar Pal, 1931 (58) Cal. 1379 (India).
records with which he has turned out to be familiar over the span of his expert work,
without assent of his customer.

[C] STATE PRIVILEGED COMMUNICATION:-

Section 123 of the Indian Evidence Act is claimed every now and again by the
Government to approve them not to create its unpublished records in courts.Such an
unpublished record can be had of from the official leader of the office concerned, who
may likewise retain the consent in the event of need. The section additionally denies
the exposure of any proof got from unpublished authority records. According to this
section an observer can't be allowed to give any proof which is gotten from
unpublished records identifying with any issues of state without authorization of the
officer at the head of office concerned. It is basically founded on the maxim salus
populi est suprema lex, which means that regard for public welfare is the highest
law. The injury to public interest which is likely to result from their disclosure would
be far less than the injury which would arise from suppression of such information.6
Section 123 of Evidence Act states that in order to claim privilege there must be
certain pre - requisite conditions, namely i) the document must be an unpublished
official record; ii) it should relate to the affairs of the state, and iii) it can be admitted
in evidence with the permission of the head of department concerned, who shall give
or withhold such a permission. Under sections 123 and 124, the state was empowered
to suppress any information from disclosing, it is for the court to decide that the
documents are of official confidence. The constitution provides for freedom of speech
which also includes freedom of information in Article 19(1) (a). The L.K. Koolwal v.
State of Rajasthan7 it has been stated that a citizen has the right to know about
activities of the State. The privilege of secrecy is which existed in old time that the
state is not bound disclose. This restriction cannot be applied to matters like sanitation
and other allied matters. Every citizen has the right to know how the government is

6 S. P. Gupta v. President of India,1982 2 SCR 365(India).

7 A.I.R. 1988 Raj. 2 (India).

functioning.Even after the enactment of Right to Information section 123 and 124
have not yet been repealed nor amended.

[D] PRIVILEGES GIVEN TO JUDGE AND MAGISTRATE:-

Section 121 of the Evidence Act provides a privilege that says no Judge or Magistrate
cannot be compelled to answer any question i) as to his own conduct in the court ii) as
such judge or magistrate or as to any other matter which came to his knowledge as
such Judge or Magistrate. This section intends to safeguard the dignity and integrity
of judiciary. Where certain matters come to the knowledge of any Judge or magistrate
in his personal capacity as an ordinary person, the Judge or Magistrate is not entitled
for the privilege and can be compelled to testify to those facts. When a superior court
to which he is subordinate orders him to answer a question as to his conduct he is not
entitled for the protection giver under this section. The Arbitrator would not be within
the rule of section 121 to claim privilege as section 3 of Evidence Act defines court, it
excludes arbitrators. However, if his evidence is required, there must be a special
order of superior court, it is a precedent condition.

[E] PRIVILEGE TO POLICE OFFICERS AND REVENUE OFFICERS RELATING TO

INFORMATION AS TO COMMISSION OF OFFENCES.

Section 125 places a prohibition on compelling the Magistrate, Police Officer or

Revenue Officer to say from which source the information referred to in the section
I.e. the commission of any offence and any offence against the public revenue. It
applies to public and private prosecutions and is not extended to the witness and
parties. The privilege is not given to the court, police officer or revenue officer, but to
the informant, that too particularly to the information. It is absolutely essential to
welfare of the state that the names of informers should not be divulged. In Sitaram
Mahato v. State8 it has been held that a police officer cannot be questioned as to the
source from which he got information. He cannot say that from a source he learnt that
certain persons were going to commit decoity in a certain locality, because it would
be hearsay evidence, and is inadmissible. It has no application to informer who lays
sworn information and thereby initiates criminal proceedings.

CONCLUSION.
Privilege communications are exceptions to the general rule of communications I.e. a
witness is bound to tell the whole truth and to produce any document in his possession
or power relevant to the matter in issue. It is based on the principle of convenience
and public policy. It is a case of prohibition, that is, even if the witness is willing to
answer, the law prohibits. With the reference to privileged communications being
inadmissible in evidence, it is a settled rule of common law that if the communication
be to one who is at the time professionally employed, it is privileged and the seal of
silence is on it.

8 A.I.R1954 Mad. 102 (India).