“This article is written by Jasmine Madaan, from Vivekananda Institute of Professional Studies (VIPS). This is an exhaustive article which deals with privileged communication between various protected relationships.”

Introduction

Watching the show ‘Suits’ introduced me to the concept of privileged communication, remember the famous reply of Harvey “I am bound by the Attorney-client privilege,” which is one of the protected relationships. Even if you haven’t watched Suits, it’s not a big deal. This article will provide a solid gist about privileged communication between various protected relationships, the extent of the right to privacy and the concept of privilege communication in different countries.

Definition

Privileged Communication refers to the confidential conversations or interactions between two parties who are in a legally recognized protected relationship. The information cannot be leaked to any third party, not even in the Court. Law can never force an individual or a corporation to disclose the contents of privileged communications.  

Illustration: 

• ‘A’, the husband and ‘B’, the wife are undergoing a rough patch in their matrimonial life. 
• ‘A’ decides to transfer all his property to C via his will and only his lawyer knows about this. If B ever asks A’s lawyer to disclose it, the lawyer can’t tell as it is a privileged communication. 
• He can tell only if A gives consent to do so or A himself discloses to a third party.

Professional communication between a lawyer and a client 

It is a statutory obligation under Section 126 of the Indian Evidence Act for an advocate to not disclose without the consent of the client any-

1. communication to him by the client or vice versa,
2. contents or conditions of a document, and
3. the advice given to the client,

which was obtained or given in the course and for the ‘purpose of such employment’. This phrase means that no privilege attaches to communication to an attorney consulted as a friend. This obligation continues even after employment has ceased. This encapsulates the rule of “once privileged always privileged”.

The privilege under Section 126 is subject to certain exceptions i.e. under the following conditions communication can be disclosed:

1. When the communication was made in furtherance of an illegal purpose;  
2. When the attorney gets to know that a crime or fraud has been committed since employment began;
3. When the client gives consent; 
4. When the information falls into the hands of a third party;
5. When a lawyer sues the client for professional purpose.

Section 127 of the Evidence Act states that Section 126 applies to- 

• Interpreters
• Clerks or servants of barristers
• Pleaders
• Attorneys
• Vakils

In the case of Court in its own motion vs. State, Delhi High Court answered the question, whether a child victim should be permitted to waive the privilege of the counsellor? Court held that it can be done if the child does it knowingly and voluntarily and waiver is in the interest of the child provided the reasons for a waiver should be recorded in writing in the order.

In the case of Karamjit Singh v. State, the Court held that one cannot ask for disclosure of any professional communication and documents of attorney and client under the Right to Information.

In the case of Board Of Directors, Y.M.C.A. and v. R.H. Niblett, the Court observed that in a defamation case where the evidence in question is proved to be privileged then the burden to prove not just normal malice but express malice lies on the plaintiff. The Court stated that if the occasion is privileged then the publication by a person ‘exercising the privilege to third persons’ if it is reasonable and in the ordinary course of business, where communication wasn’t possible except in the presence of uninterested people, it is protected. The privilege can’t be destroyed merely because third-persons(clerks, typists or copyists, etc.) do not have a legitimate interest in the subject matter.  

Privilege can not be waived by voluntary evidence

Section 128 states that if the client himself presents some evidence regarding privileged communication, it doesn’t amount to a waiver of privilege. Summoning the lawyer as a witness by the client doesn’t amount to consent to disclose but when the client himself asks questions pertaining to the confidential communication then it amounts to an implied waiver of privilege.

Confidential communications with legal advisers 

This section states that no one can be compelled to disclose privileged communication between a client and an attorney. If a client offers to be a witness then the Court can extract from him any communication as it deems necessary. Section 129 prohibits the client from disclosing, unlike Section 126 which prohibits a lawyer. It lifts the restrictions imposed under Section126 partially, it acts as a counterpart of Section126 of the Evidence Act.

Court held in the case of P R Ramakrishnan v. Subbaramma Sastrigal that as per Section129 of the Evidence Act both the client as well as the attorney aren’t under any obligation to spell the privilege communication to any third person.

Privileged communication under the Companies Act, 1956

Usually, the job agreement and bylaws of a company make it obligatory to keep communications confidential. Section 251 of the Companies Act, 1956 (now Section 227 of the Companies Act, 2013) states that a legal adviser, a banker of any company, a corporate body should not be required to disclose any privileged communication to the Central government, inspector or registrar appointed by the Central government.

The Rules on Professional Standards

Bar Council of India(BCI) has some rules on professional standards which every advocate has to abide by, these are mentioned in Chapter II, Part VI of BCI. Attorney-client privilege is further strengthened by these rules. It is believed that an advocate owes a duty towards the Court, client, their opponent, and other advocates. The power to make these rules is inherited by the BCI under Section 49(1)(c) of Advocates Act, 1961.

Rule 7 & 15

Part VI, Chapter II, Section II of Bar Council of India Rules(BCIR) mentions the Rules on an advocate’s duty towards the client. 

Rule 7 of it provides that no advocate shall commit a direct or indirect breach of obligations under Section 126 of the Evidence Act. Thus, violating it would amount to a violation of BCI rules.

Rule 15 prohibits an advocate from misusing or taking advantage of the client’s confidence reposed in him.

An advocate would be subject to disciplinary proceedings in case of breach of the above-mentioned rules.

Privileged communication between a married couple

Trust between the spouses is the foundation of a marriage. It is very crucial to protect the privacy of the confidential communication between the spouses during the marital relationship to maintain the peace of families. Both the spouses are obliged under Section 122 of the Indian Evidence Act not to disclose any communication which has happened during their marriage. It is important to note that the protection applies to all sorts of communications between husband and wife. 

Exceptions to this clause

• Acts or conducts apart from the communication can be disclosed. 

In the case of Ram Bharose v. State of U.P., the husband was accused of theft of jewellery which he had gifted to her wife. He told his wife that he had obtained it from her previous home. The wife in the Court discloses the conduct of the accused that he had seen her husband coming down from the roof and after taking a bath gifted it to her. Court held that the wife could testify as to the conduct but not the conversation. 

• If the party who made the communication consents to its disclosure i.e. waives the privilege, then the evidence of privileged communication can be given. 
• In Suits or criminal proceedings between the two spouses. 
• Communications made before marriage or after dissolution of marriage. 

The landmark judgement of Nagraj Alias Kumar v. State of karnataka, the Court observed that even though Section 120 of the Evidence Act permits a spouse to tender evidence against the other spouse except in suits or criminal proceedings between the two spouses. Section122 makes it clear that privilege extends to all communications, the said communication does not need to be confidential. Only spouses who made the communication can waive it and not the witness as the privilege doesn’t extend to them. Even the Court cannot permit the witness to disclose even if he/she is willing to share. It is incumbent to ask for the consent of the party against who the evidence is being given under Section122 of the Evidence Act. 

In another landmark case of M.C. Verghese Vs. T.J. Poonan and Anr., the Supreme Court held that only communications that took place during the marriage are protected under the privilege mentioned in Section 122 of the Evidence Act. The protection continues even after the dissolution of marriage or the death of one of the spouses. Communication before the marriage or after the dissolution of a marriage doesn’t come under the purview of sec 122.

Privileged communication between a doctor and the patient

In India, The Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002 regulate the conduct of medical professionals. 

Rule 7.14 of these regulations provides that the secrets of a patient that the registered medical practitioner has learned during the exercise of his/her profession cannot be disclosed. Few exceptions to this rule are:

1. When a presiding judge in a court orders to disclose the privileged communication
2. When there exists a serious risk to a specific person and/or community
3. In case of a notifiable disease concerned public authorities should be immediately informed

Rule 7.17 states that “A registered medical practitioner shall not publish photographs or case reports of his / her patients without their permission, in any medical or other journal in a manner by which their identity could be made out.” It is to be noted that if the identity is not to be disclosed then no consent is needed. 

Chapter 8 of the Rules states that if any medical practitioner violates the Physician-patient privilege then the Medical Council of India(MCI) can take any action as it deems fit against the registered medical practitioner in question, once he/she is held guilty after the inquiry. MCI can also “direct the removal altogether or for a specified period”.

The power to formulate these rules is enshrined in MCI under Section 20A of Indian Medical Council Act. 

In the landmark judgment of Mr. X Vs. Hospital Z, the Supreme Court held that a rule of confidentiality has certain exceptions, one of which is the disclosure of privileged communication between the doctor and client if it poses a serious risk to a person in case of non-disclosure. Public interest can override the right to confidentiality. For instance, in the given case it was necessary to disclose to the wife that the husband has HIV-AIDS.

Right to privacy and Privileged Communication

Article 21 of the Constitution of India states, “No person shall be deprived of his life or personal liberty except according to the procedure established by law”, it has an encyclopedic ambit. It covers all aspects of life, one of which is Privacy. Right to privacy isn’t expressly written in the Indian Constitution but overtime judicial proceedings have shown that it comes under the ambit of Article 21.

The law safeguards the right to privacy by protecting from the disclosure of privileged communication. It takes away the evidentiary value of confidential communication. 

Section 122 of the Indian Evidence Act interdicts married couples from disclosing any confidential communication which happens during the marriage. Similarly, sections 126 to 129 of the Evidence Act deal with attorney-client privilege. The concept of privileged communication strengthens the fundamental right to privacy. 

Moreover, laws like Rule 7 and 15 of the BCI Rules on Professional Standards for attorneys and Rule 4.14 and 4.17 of The Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002 for medical practitioners bars the disclosure of privileged communication. Violation of any of these laws is an automatic violation of the right to privacy under Article 21 of the Indian Constitution.

In the case of Vishal Kaushik v. Family Court, the Court held that if the conversation between two spouses is recorded by one of the spouses without the knowledge of the other spouse, that evidence will not be admissible in the Court. In fact, this act will amount to a breach of privacy under Article 21 of the Indian Constitution and the spouse who has recorded will be held liable.

Privileged communication in other countries

In both the USA and UK, privilege is a fundamental right which is used as a safeguard tool by the individuals and corporations from disclosing any privileged communication. 

United Kingdom (UK)

Broadly there are two types of privileges in the UK to protect communication between lawyer and client:

1. Legal advice privilege- This includes only written or oral confidential communications between a lawyer and a client that provide, seek or receive legal advice. The term lawyer here doesn’t include tax advisors or accountants but it does include in-house counsel.
2. Litigation privilege- This includes written or oral confidential communications between a lawyer and a client or either of them and a third party that provides, seeks or receives legal advice in connection with the proceedings of a case.

A lawyer can’t waive the privilege without the consent of the client.

Legal professional privilege can be waived in the following cases-

• If the document loses its confidentiality
• The document came into being for a criminal or fraudulent scheme

Unlike in India where an act of illegal nature can be disclosed, in the UK the act must be of criminal nature and not merely of illegal nature.

United States of America (USA)

There are three areas of law that are covered under the Legal professional privilege-

1. Rule of Confidentiality- without the consent of the client or other applicable exceptions, a lawyer can’t disclose the confidential communication that occurred between him and the client or client’s representative.
2. Attorney-client privilege- this rule prevents disclosure of confidential communication made in furtherance of obtaining legal services specifically judicial proceedings.
3. Work Product Doctrine- it protects the disclosure by the opposing counsel of material that has been prepared in anticipation of litigation.

The privilege can be waived under various circumstances, there are no specific terms. Example- in case of intentional or unintentional waiver of privilege.

Singapore

Legal privilege is of two types-

1. Legal advice privilege- This includes only confidential communications between a lawyer and a client or lawyer and client’s agent that provide, seek or receive legal advice. This doesn’t include communication between a lawyer and a third party unless the third party is acting as a client’s agent.
2. Litigation privilege- This includes confidential communication between a lawyer and the client and also a lawyer and a third party, even if the third party isn’t acting as a client’s agent that provides, seeks or receives legal advice where there is a legal prospect of litigation.

It does include communication with the in-house counsel also.

Australia

Legal professional privilege is derived from legislation and common law. Privileged communications between a lawyer or lawyers and the client for the purpose of providing legal advice or professional legal services regarding a Court proceeding cannot be disclosed. It includes documents also.

If the client acts in an inconsistent manner with confidentiality, it leads to an implied waiver of the privilege. 

In case of global privilege, the complexity increases as in one jurisdiction it may be granted privilege protection whereas in another jurisdiction it may not be granted privilege.

Conclusion

Various legislations oblige the parties of a protected relationship (attorney-client, doctor-patient, husband-wife) to adhere to the rule of privileged communication. The foundation of this is to guard the trust that a client re-poses in an attorney, patient in a doctor and spouses in each other. However, the privilege is not absolute in nature, it is subjected to certain exceptions. The law also provides for punishment in case of its violation.