What are Privileged Communication under Indian Evidence Act?

Indian Evidence Act Jun 19, 2022

There are certain matters which a witness cannot either be compelled to disclose or even if the witness is willing to disclose, he will not be permitted to do so. Such matters are known as ‘privileged communications. The production of certain communications and documents is either privileged from disclosure or prohibited from being disclosed, as a matter of public policy or on the ground that the interest of State is supreme and overrides that of an individual.

Privileged communication is the communication between individuals who are in a protected relationship by the virtue of which the details of the communication cannot be disclosed. Privileged communication exits to protect the disclosure of information during the subsistence of confidential or protected relationships. These communications are such that they may not be used as evidence in the court of law against the persons communicating due to specific nature of their relationship. The Indian evidence act mentions three kinds of communications as privileged from disclosure: Matrimonial Communications, Official Communications and Professional Communications.

  • MATRIMONIAL COMMUNICATIONS: Section 122: Communication during Marriage: This section deals with the protection of matrimonial communications. These communications between husband and wife are strictly protected from disclosure. Matrimonial communications refer to the communication between a man and his wife. Either party is disallowed from divulging any such information to any 3rd party made within the confines of a valid and existing marriage. A person cannot be compelled to disclose any communication made to him or her during marriage by any person to whom he or she is or has been married; nor will such communication be permitted to be disclosed. Thus, Sec. 122 prevents communications between a man and his wife from being disclosed. This section rests on the obvious ground that the admission of such testimony would have a powerful tendency to disturb the peace of families, to promote domestic broils, and to weaken, if not to destroy, that feeling of mutual confidence which is the most endearing solace of married life.  It's vital to remember that the protection only applies to issues that were discussed 'during the marriage.' Even after the dissolution of the marriage5 or when one spouse dies, such communication (during the term of the marriage) is protected. Those made prior to marriage or after its dissolution, however, are not protected (M.C. Verghese v T.J.Ponnam). Furthermore, the privilege only applies to communication, not to being a witness. According to the clause, a spouse is not required to disclose such communication and is not even entitled to do so if he or she voluntarily does so. In Ram Bharose v. State of UP, (AIR 1954 SC 704), the accused was on his trial for murdering a neighbour for the purpose of robbing some ornaments and then to present them to his wife. While presenting them to his wife he said that he had gone to the middle house (where the deceased lived), to get them. His wife then told the court that she saw one early morning her husband coming down the roof. He then went inside the fodder store and had a bath. He put back the same clothes and came to her to present the things. Held that what the husband said to his wife was not admissible, but she could testify as to his conduct.
  • OFFICIAL COMMUNICATIONS: Sections 123 & 124: sections 123 and 124 generally referred to as dealing with official communications. Section 123 deals with one of the important areas such as state privileged documents and official communications. Section 123 relates to affairs of state. This section deals with a probation and the prohibition extends to everyone provided the evidence ought to be given relates to affairs of state derived from unpublished official records. when the state is required by the court to produce certain documents the government claims a privilege and refuses to place those documents before the court on the ground that this documents since they relate to the affairs of the state disclosure of the content of such documents in the court may endanger public interest. So by virtue of this privilege the government very often refuses to produce documents required by the court to be produced before it. Sec. 123 protects unpublished State records from being disclosed. This section is based on the maxim "Saluspopuli est supreme lex", i.e., regard for public welfare isjthe hjghest law. The general rule is that the witness is bound to tell the whole truth and to produce any document in his possession or power, relevant to the matter in issue. However, in certain cases, the production of official document may be injurious to larger public interest, as for instance it may harm State's security, good diplomatic relations, etc. In such cases the State has been given the privilege not to produce certain documents which relate to "affairs of the State. The privilege under Sec. 123 should be claimed either by the Minister, or his Secretary, or by Head of the Department. The usual method of claiming the privilege is by filing an affidavit. The affidavit has to state that the document in question has been carefully read and examined and the Department is satisfied that the disclosure would not be in public interest. After looking at the nature of the document, the grounds for the claim of the privilege, and the totality of the circumstances, the court decides the question of ordering the production or not.)
  • PROFESSIONAL COMMUNICATIONS: A “professional communication” means a confidential communication between a professional (e.g. lawyer) and his client made to the former in the course, and for the purpose, of his employment as such adviser. The privilege attaching to confidential professional disclosures is confined to the case of legal advisers, and does not protect those made to clergymen, doctors, etc. Further, no privilege attaches to communication to an attorney or pleader consulted as a friend and not as an attorney or pleader. The principle underlying Sec. 126 is that if communications to a legal adviser were not privileged, a man would be deterred from fully disclosing his case, so as to obtain proper professional aid. Every person, however guilty, is entitled to a fair trial - which involves the service o f a counsel and counsel cannot defend his client unless he knows the whole truth.

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