This document discusses legal protections for privileged communications between various professionals and their clients under Indian law. [SECTION 126] protects communications between lawyers and their clients from being disclosed without consent. [SECTION 129] similarly protects confidential communications between clients and their legal advisors from being disclosed, unless the client acts as a witness. The document also discusses cases that have upheld these privileges and clarified their scope and limitations.
This document discusses legal protections for privileged communications between various professionals and their clients under Indian law. [SECTION 126] protects communications between lawyers and their clients from being disclosed without consent. [SECTION 129] similarly protects confidential communications between clients and their legal advisors from being disclosed, unless the client acts as a witness. The document also discusses cases that have upheld these privileges and clarified their scope and limitations.
This document discusses legal protections for privileged communications between various professionals and their clients under Indian law. [SECTION 126] protects communications between lawyers and their clients from being disclosed without consent. [SECTION 129] similarly protects confidential communications between clients and their legal advisors from being disclosed, unless the client acts as a witness. The document also discusses cases that have upheld these privileges and clarified their scope and limitations.
This document discusses legal protections for privileged communications between various professionals and their clients under Indian law. [SECTION 126] protects communications between lawyers and their clients from being disclosed without consent. [SECTION 129] similarly protects confidential communications between clients and their legal advisors from being disclosed, unless the client acts as a witness. The document also discusses cases that have upheld these privileges and clarified their scope and limitations.
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Privileged Communication - 2
Information as to Commission of Offences
This is dealt in section 125 of the Indian evidence act 1872. This section states that “No Magistrate or police-officer shall be compelled to say whence he got any information as to the commission of any offence, and no revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.”
The explanation to this section defines the Revenue Officer as “any officer employed in or about the business of any branch of the public revenue.”
This section can be said to be present for the protection of sources because if sources of information will have to be disclosed then the sources will be embarrassed and will refuse to give such information.
Professional Communication
This is dealt in section 126 of the Indian evidence act 1872. This section says that “No barrister, attorney, pleader or vakil, shall at any time be permitted unless with his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted 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:
Provided that nothing in this section shall protect from disclosure:
any such communication made in furtherance of any illegal purpose,
any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.
It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was not directed to such fact by or on behalf of his client.” The explanation to this section says that this section will continue to apply even when the employment has ceased.
The illustration (a) to this section makes it very clear. A man committed a crime of forgery he goes to a lawyer and says to him that, “I have committed the crime of forgery and I wish you to defend me”. Since the defence of a criminal is not an offence this communication will come under the purview of this section. Even after the case is over and the lawyer is not anymore working under the person, he is not allowed to disclose the information unless the client consents as said in the explanation to this section.
The illustration (b) to the section says that if a person comes and says that he wants to obtain the possession of a property by the use of forged documents and he wants the lawyer to sue accordingly, then that being a criminal offence is not protected under the section.
“Confidential Communications passing between a client and his legal adviser and made for the purpose of obtaining or giving legal advice are in general, privileged from disclosure. The privilege is available in respect of the oral testimony of witnesses, and the principles which determine whether a communication is or is not privileged are the same for both oral and written communications. The privilege is that of the client and may be waived by him.”
If there arises a case in which a person goes to an advocate hoping to get his services and, on the regard, says all the information about him, but afterwards he decided not to take his services, then all the communications that passed between the person and the advocate are protected under this section.
Every person however guilty he maybe is entitled to fair trial which is recognised by all civilised nations. For this purpose, both the parties, the one who actually did the crime as well as the one who was the victim, needs a lawyer to defend and prosecute. But a lawyer will not be able to defend a person until he knows the whole truth. Although giving false evidence to defend a criminal may seem to be unprofessional, it has to be done and all the communications between the accused and the defence lawyer will have to be kept confidential to save a very important right of a person i.e. the services of a counsel. In the case of Venkatachalam v. Govindan Chettiar it was held that section 126 which is meant to keep some information undisclosed to the public is not ruled by the RTI act, 2005. The RTI Act, 2005 cannot undermine the section.
In the case of Council of the I.C.A.I. v. Mani S. Abraham a chartered accountant
gained some confidential information about his client and disclosed them without the consent of the client bank or third parties he was held to have done professional misconduct.
The same situation also applies to doctors. It is a settled law that doctors can not divulge the information gained during their professional communication to any person unless the patient or the person who gave the information to the doctor in confidence agrees of it being disclosed. This was held in the case of P.B. Desai v. State of Maharashtra.
However, there is no law that journalists have to withhold information of crime under the disguise of professional ethics. However, by virtue of section 15(2) of the Press Council Act 1978,[22] the sources of information for the newspaper, news agency, editor or journalist are protected. Such protection is also given by section 125 of the Evidence Act too. In the case of People’s Union for Civil Liberties v. Union of India, it was said that in the process of obtaining information if any right of a citizen is violated, nothing prevents him from resorting to other legal remedies.
Section 127 of the evidence act is just a necessary corollary to section 126 of the evidence act. This section says that “The provisions of section 126 shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils.”
This section just adds on to the scope of section 126 by making it applicable to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils also.
Confidential Communications with Legal Advisors
This topic is dealt in section 129 of the evidence act which says that “No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional advisor, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others.”
In the previous sections, we saw that the protection was given to the legal advisors and advocates that they can’t be compelled to disclose information about their client unless the client consents. Here in section 129 of the Indian evidence act, the privilege is given to the client himself. The privilege, however, is subjected to a condition i.e. unless the person offers himself as a witness. As soon as the person in question offers himself as a witness the privilege goes away but only to the extent of that information which may appear to the court as necessary to understand evidence given by him. The protection to the client is necessary because if there is no protection to the client then the protection given to the advocate under professional communication will become illusory.
Upholding the same principle, the court in the case of Munchershaw Bezonji v. New Dhurumsey S&W Company, said that if a party becomes a witness of his own accord he shall, if the Court requires it, be made to disclose everything necessary to the true comprehension of his testimony.
In the case of Moher Sheikh v. Queen-Empress, it was said that the section uses the word compelled to disclose in reference to the case when a person has given himself as a witness and it must refer to some amount of force given by the court.
