Priviliged Communications under Bhartiya Nyaya Sanhita and Bharatiya Sakshya Adhiniyam: An Analysis

By- Rabia Mittal

INTRODUCTION

Privileged communications involve two individuals sharing information that the law will protect from a legal obligation to disclose. Public policy forms the basis of privilege in the goal of providing an open environment within select relationships, such as between a lawyer and client or a doctor and patient. In legal contexts, these preserve the integrity of certain relationships by ensuring that individuals can communicate freely without any fear. The privileged communications under the BNS and BSA are given special protections along with certain exceptions.

The concept of privileged communications under BNS and BSA plays a crucial role in ensuring confidentiality in legal proceedings. In India, Article 21 of the Constitution, guaranteeing the Right to Life and Personal Liberty, encompasses the Right to Privacy. Additionally, the right to privacy is a fundamental right and comes under the ambit of Article 21.

WHAT ARE PRIVILEGED COMMUNICATIONS UNDER BNS AND BSA?

Privileged Communications are confidential communications or interactions between two people which are legally protected based on the public policy.

All the interactions that are protected from being disclosed in court proceedings are included in privileged communications .The two kinds of Privileged communications are:

1. Privileged from the disclosure: These communications cannot be revealed in court except when the privilege is waived by the party.(e.g., attorney-client privilege).

2. Prohibited from being disclosed: These communications are strictly barred from disclosure by law, regardless of consent, for serving higher purposes (e.g., communications during marriage).

CRITERIA FOR PRIVILEGED COMMUNICATION

One of the challenges in applying privileged communications under BNS and BSA is determining the scope of communication that qualifies as legally protected. A communication counts as privileged only when it meets the following criteria:

A. Relationship Matters:

Privileged communication generally happens between individuals in recognized, protected relationships like a doctor and patient, attorney and client, or between married couples. These relationships are essential for maintaining trust and confidentiality.

B. It Must Be Private:

The communication should occur in a private setting where both parties expect confidentiality. It’s crucial that this exchange happens in a space where there is no outside interference to ensure there is no risk of eavesdropping, so both individuals can express themselves without concern.

C. Non-Disclosure to Third Parties:

Once shared, the information must remain confidential. If either party shares the information with someone outside their trusted relationship then the confidentiality can be broken which will potentially lead to lose the privileged status of the communication.

WHY PRIVILEGED COMMUNICATIONS UNDER BNS AND BSA NOT ADMISSIBLE IN COURT?

The reason privileged communications are not admissible in court is because of the idea of protecting privacy and maintaining trust. These communications foster open dialogue, so individuals can freely speak without the fear that their words will be used against them in any way in a legal dispute. This protection creates a safe space for those involved in crucial relationships, allowing them to interact without fear of breaching the trust inherent in these bonds. Courts have consistently recognized the importance of privileged communications under BNS and BSA, particularly when balancing the right to privacy with the need for justice therefore, by safeguarding the integrity of these communications, the law helps ensure a more just and fair system, one that values personal privacy and the importance of confidential conversations.

Legally, the basis of this shield is public policy. In society people are free to express themselves in relationships marked by trust. The Indian constitution also provides the right to privacy under Article 21 and right against self- incrimination under Article 20(3). By protecting these communications, courts uphold the integrity of private relationships. The law also states that ‘What is communicated in confidence for a legal purpose remains confidential, provided that it is not used to commit a crime or fraud’.

PRIVILEGED COMMUNICATIONS UNDER BHARATIYA SAKSHYA ADHINIYAM (BSA)

Section 127 to section 136 of Bharatiya Sakshya Adhiniyam, 2023 (BSA) ( section 121 to 131 of the Indian Evidence Act)  deals with privileged communication by declaring certain exceptions to the general rule that all the relevant facts should be admissible as evidence. Such communications are exempted from disclosure in the interest of public policy and to protect trust in certain relationships.

There are different kinds of privileged communications that are acknowledged by law.

Judges and Magistrates (S.127) cannot be made to disclose information received in their official role. Section 128 protects spouses from disclosing confidential communications made during their marriage while Section 129 protects communications between lawyers and clients in professional matters, allowing clients to speak openly. Sections 130 and 131 grant government and public officials the privilege to withhold official and confidential communications when disclosing them would prejudice public interest or state security. Subsequent sections expand this privilege to cover informer identities and certain official documents.      

Evidence law prohibits compelling anyone to disclose certain facts because it treats those as privileged communication.

Compelling a person to disclose such communications is against public policy. Sometimes disclosure of such communications is not in the interest of the state.

In case of Guru Nanak Provision Store Versus Dulhonumal Savanmal & ors , A.I.R. 1994 Gujarat 31 , the court highlighted that Section 126 of the Indian Evidence Act (S.129 BNA) accords privilege only to confidential communications made in, during the course of, or for the purpose of employment. Such privilege does not extend to the communications made in the course of a crime or fraud.

TYPES OF PRIVILEGED COMMUNICATION-

 1. Privilege given to Judges and Magistrates

Except upon a special order of the High Court, no one can compel Judges or Magistrates under Section 127 BSA (Section 121 IEA) to give evidence about:

1 His own conduct related to case tried by him

2 Anything which he came to know in the course of trial as court .

Exception: fact which they come to know as ordinary man or what occurred in his present while acting as such.

 Union Of India  V. Orient Engineering and commercial co.1978 The Supreme court has extended this category to arbitrators as well . The court can summon arbitrators as witnesses, but it cannot compel them to explain how they arrived at the award.

2. Spousal privileged communication under BNS and BSA

Section 128 BSA (Sec 122 of the Evidence Act) provides that a married person cannot disclose any communication made to him or her during marriage to their spouse without consent, and no one can compel the person to disclose such communication unless the spouse or their representative consents.. The law allows an exception in suits between couples or in proceedings where one spouse prosecutes the other for any crime committed during the marriage.

Thus, it is clear that the law does not compel husband or wife to disclose communications made to each other during their marriage without the consent of the other party. The reason behind it are to:

(a) protect family peace

(b) maintain faith between husband and wife during their marital status.

In the case of Narendranath Mukherjee Versus State (A.I.R. 1951 Kolkata 140) the Kolkata High Court stated that permitting husband and wife to disclose such communication would not only breach family peace but also increase the loss of faith between them in their marital status.

Certain exceptions to the spousal privilege are:               

A.    Acts Apart from Communications:

A wife can testify about her husband’s actions but not about his statements to her. In  Ram Bharosey v. State of U.P6 the court upheld this principle by deeming inadmissible the husband’s remarks about a crime and by admitting the wife’s observations of his conduct as evidence.

B.    Evidence by Third Parties:

Communications between spouses that occur in the presence of a third party can be testified by that third party. In Queen Empress versus Donoghue 1899, the court admitted a message that police recovered from the wife because they neither examined her nor compelled her to reveal it.

C.    Waiver of Privilege:

One spouse can waive spousal privilege by consenting to disclose communications. This can occur if one spouse testifies and the other does not object in time. Conversations recorded with consent are admissible; however, those recorded without knowledge violate privacy rights under Article 21 of the Constitution.

D.    Crimes between Married Persons:

Section 128 allows the disclosure of privileged communications if one spouse prosecutes the other for a crime. In such cases, the victim spouse can testify about relevant communications, which remain protected even after divorce. However, the law does not protect communications made before marriage or after its dissolution.

Case laws:

In case of  Rambharose Versus State of UP, ALR. 1954 S.C.704 : the court held that privileged communications under section 122 of Evidence Act were not admissible as evidence. However, courts admit actions and conduct witnessed or reported by the spouse since the statutory protection does not cover them.

In case of M.C.Verghese V. T.J. Ponnan & Anr 1970 : the court held that section 122 of Evidence Act is only applicable on the spouse and not on third person. Communication taken place between husband and wife in the presence of a third person or overheard by them can be testified by the third party.

3. Evidence as to affairs of State

Section 129 BSA (corresponding to Section 123 of the Evidence Act) lays down that no one may give evidence derived from unpublished official records relating to any affairs of state. The exception to this is in the case of an officer at the head of the department concerned, himself permitted to use the record as evidence as he thinks fit.

The chief officer of the related department must permit the disclosure of unpublished official records before anyone can disclose them. In the case of R.K. Jain vs. Union of India And Ors  on 14 May, 1993 SC 1769), the Supreme Court did not order to publish the file which contained activities of appointment of chairman of custom, excise and gold control appellate tribunal.

In the case of ‘Herraysee versus Wright [(1888)21 Q.B.D. 509], it has been stated that non-permission to disclose the records related to affairs of state is in the public interest.

Application of this section requires three contents-

(a) Being an unpublished official record;

(b) Record must be related to affairs of the State, and

(c) Disclosure of which must be against the public interest.

In the case of People’s Union for Civil liberties Versus Union of India (A.LR. 2004 S.C. 1442), the Supreme Court held that to obtain protection under Section 129 requires two things

(a) documents are related to affairs of state, and

(b) disclosure of such a document is against the interest of the state or public interest.

4. Official Communication

Section 130 BSA (S. 124 IEA) provides that the law does not compel any public officer to disclose any such communication. It means that this section provides that no public officer shall be compelled to disclose any such communication

(a) which are made to him in official confidence; and

(b) Regarding which he considers that the disclosure is not in the public interest.

In the case of ‘Dagi Ram Pindi Lal Versus Trilokehand Jain” (ALR. 1992 S.C.990), The Supreme Court has held that different persons present several types of documents before government officers in government offices, and the officers must keep them secret. If the law does not protect these documents from disclosure, someone may breach their secrecy.

5. Information as to commission of offences

Section 131 of the BSA (Section 125 of the Indian Evidence Act) provides that no one can compel the magistrate or a public officer to disclose the place or source from which he received information about the commission of an offence. Likewise, no one can compel the revenue officer to disclose the place or source from which he received information about an offence against the public revenue.

Thus, section 131 provides following persons with the relief to not disclose any information received by them regarding commission of an offence

(a) magistrate

(b) public office

(c) revenue officer

Generally, people call the person who gives information about the commission of an offence a Mukhbir, and no magistrate, police officer, or revenue officer discloses when he receives such information.

6. Professional Communications

Section 132 BSA (S 126 IEA) provides protection against disclosure of professional communication. According to it, “No barrister, attorney, pleader, or vakil shall at any time be permitted to disclose any communication made to him in the course and for the purpose of his professional employment or to disclose any advice given by him to his client in the course and for the purpose of such employment unless the client expresses consent .

Hence, this section relieves the following persons from disclosing professional communications and prevents anyone from compelling them to disclose such communications:

(a) Barrister,

(b) Attorney:

(c) Pleader, and

(d) Vakil.

In the case of ‘ R. Ramlingam Versus P.R.Thakur’ (ALR. 1982 Delhi 486) The Delhi High Court has stated that the main object of Section 126 IEA is to simplify obtaining advice from a barrister, attorney, pleader, vakil, or advocate. If such protection is not available, then it shall be very difficult for any person to obtain professional advice.

The Right to Information Act of 2005 intersects with various legal principles, particularly those surrounding the confidentiality of communications between a lawyer and a client. Notably, Section 132 establishes that the authorities must maintain such confidentiality despite the provisions of the RTI Act.

EXCEPTIONS TO LEGAL PRIVILEGE

     1. Illegal Purpose:

Communications made in pursuit of an illegal activity do not receive legal protection. For instance, when a client seeks legal assistance to draft a fraudulent document, the communication loses privilege because it serves an unlawful objective.

     2. Disclosure of Crime or Fraud:

If an attorney discovers that a client has committed a crime or fraud while they are representing them, the attorney may share the information. For instance, after retaining a lawyer, the lawyer may report subsequent fraud if they find the proof of embezzlement in the client’s financial records. .(Illustration (c) of S.132)

     3. Client’s Express Consent:

If a client gives their express consent to disclose, they can forgo their lawyer-client privilege. The client must make this waiver explicitly, and we must remember that the client’s passing does not imply a waiver. Therefore, the law always safeguards the communications. Furthermore, a client essentially forfeits privilege over any associated conversations if they willingly disclose a portion of their communication in court.

     4. Third-Party Overhearing:

If a third party listens in on a lawyer-client conversation, the court may require them to reveal what they heard. The law prohibits the lawyer from disclosing information, but it does not prohibit others who may have overheard the conversation. 

In Guinness Peat Properties Ltd. v. Fitzroy Robinson Partnership the court held that once a party inadvertently discloses a privileged document in discovery proceedings, it is generally too late to claim injunctive relief. The courts normally grants such relief if a party obtains disclosure by fraud or trick. But if the document came into the possession of the other side not through trick or fraud but due to a mistake or carelessness on the part of the party entitled to the document or by his advisers, the balance of convenience will be very different from the balance in fraud cases.

     5. Lawyer’s Suit Against Client:

 A lawyer may reveal pertinent information about a case if they file a lawsuit against their client for unpaid fees or services. Nevertheless, the court excludes this privilege from applying to documents already filed.

CONCLUSION

The concept of privileged communications under BNS and BSA strikes a balance between the necessity of evidence in the legal system and the protection of sensitive interactions in specific relationships. The provisions within the Act act as a shield for communications between married people, advocate-client, patient-doctor, etc. Hence, public policy considerations and constitutional guarantees root these protections, making them non-arbitrary.

However, law also recognizes that privilege is not absolute. In certain circumstances, like a threat to life , commission of a crime, etc., the court may allow disclosure. So, ultimately, the doctrine of privileged communication protects essential relationships from forced disclosure while also allowing space for juridical scrutiny when the interest of justice so requires.