Privileges of General Application
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This Article is written by Pearl Narang, a student of Chandigarh University, Mohali. In this article, she has discussed and covered various important aspects of Privileged Communication. 

Introduction 

We all have heard the phrase “Attorney-Client Privilege” in movies and on TV shows. But what does this phrase mean? What information is considered privileged? Is the privilege only limited to Attorney-Client or other professional relationships too? Let’s get to know the answers to all these questions. 

What is privileged communication? 

When two individuals enter into a legally recognized relationship, all communication that takes place between them is protected. This communication is known as privileged communication. It is called so because whatever information that is disclosed in this kind of setting is protected i.e. the courts cannot force the individual to disclose the details of such communication. 

What qualifies as Privileged Communication? 

To qualify as privileged communication, there are certain conditions that need to be fulfilled. These are:

  1. The communication should take place between individuals who are in a protected relationship, and
  2. The communication should happen in a private setting, and 
  3. The information communicated should not be disclosed to a third party.

Why Privileged Communications are not admissible?

Privileged Communications are made in a private setting and are protected from disclosure to third parties. The rule of privileged communication exist because privacy of confidential relationships is valued in the society. This is why they are not admissible as evidence. 

Privileges Associated with Legal Advice or Current or Contemplated Litigation

All communications that takes place between an attorney and his client comes under the ambit of privileged communication. 

The Attorney-Client privilege in India is governed by provisions under, 

  1. The Evidence Act, 1872, and 
  2. Bar Council of India Rules, and 
  3. Advocates Act, 1961.

Section 126 to 129 of the Indian Evidence Act deal with privileged communication associated with professional relationship between an attorney and his client. 

This privilege is necessary because if the client cannot trust his lawyer with the information, then he will not disclose all the facts of his case and the lawyer will not be able to defend the client in court.

Section 126 states that no legal advisor or a lawyer can be permitted to disclose the confidential information that,

  1. The client revealed to him, or 
  2. Any advice that the lawyer gave to his client. 

It also states that, the lawyer cannot disclose any contents of the documents that he became familiar with during the course of his employment. This privilege exists even after the termination of employment. 

Exceptions

There are certain exceptions to the above stated rule. These are, 

  1. Any communication which takes place in furtherance of any illegal purpose;

Illustration: “A”, a lawyer has been asked by his client, “B” to forge some documents so that he can be granted possession of a property. This communication is made in furtherance of an illegal purpose, and thus is not protected from disclosure. 

  1. Any fact observed by a lawyer in the course of his employment, showing that any crime or fraud has been committed by the client since the commencement of his employment. 
  2. Express consent of the client. If the client himself gives permission to the lawyer to disclose the information, then that information will not be protected from disclosure. 

Only those communications which are made with the purpose of getting professional advice from the lawyer are considered as protected. This privilege exists only when both are in a confidential relationship and not before that. 

Section 127 broadens the scope of the privilege and extends it to the servants, helpers, interpreters and clerks of the lawyer. 

Section 128 is the continuation of the privilege, it protects the legal advisor or the lawyer from disclosing any information which comes under the ambit of section 126, unless the client himself calls the legal adviser as a witness. 

Section 129 of the Act states that the client is protected from disclosing any confidential information unless he himself offers to be a witness. 

Rules about Advocate’s duty towards his client are mentioned in The Rules on Professional Standards, Part VI, Chapter II, Rule 7 & 15 of the Bar Council of India Rules. 

Rule 7 states that no Advocate will disclose, directly or indirectly, any communication which took place between him and his client. 

Rule 15 states that the Advocate should not take advantage of the confidence that his client has reposed on him. 

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Position of In-House Counsel 

According to the Section VIII, Rule 47 of the Bar Council of India Rules, an Advocate is not allowed to practise if he is a full-time employee of a corporation, government, firm etc. Therefore, the position of an In-House Counsel related to Attorney-Client privilege is unclear. The issue lies in the fact that, whether the in-house counsel would be treated as a salaried employee or as an attorney. If he is treated as a salaried employee, then how can he be protected by Attorney-Client privilege?

This question has been answered by various judicial pronouncements. 

In Municipal Corporation of Greater Bombay v. Vijay Metal Works the court stated that since an in-house counsel provides legal advice to his clients and performs essentially the same functions as that of an advocate, he should be protected by section 129 of the Indian Evidence Act. 

Other Preparations for Litigation

In the case of Larsen & Toubro v. Prime Displays Ltd., it was stated that all the documents prepared by the client in anticipation of legal proceedings will also be a part of privileged communication.

There are other preparations for litigation which also come under the ambit of privileged communication. These are: 

  1. Communication for the purpose of obtaining advice for litigation; 
  2. Communication for collecting evidence to be used in the litigation; 
  3. All communications between an attorney and the client for obtaining information that will lead to evidence, drafts of legal notices and pleadings and other working papers. 

Litigation not Completed 

The privilege between and attorney and his client exists at all times. Once they are in a professional relationship, they are bound to not disclose the information exchanged between them in relation to the case, to any third party. The privilege exists whether the suit is contemplated or pending in the court. 

Limitations on claiming privilege

There are certain circumstances where claim on the privilege is lost. These are, 

  1. If the communication is made to further an illegal purpose;
  2. If the plaintiff himself waives his right;
  3. If the information is disclosed to a third party. In this case, a third party is a person who is not a part of the protected relationship. Thus, third party does not include the helpers or clerks of the lawyer. 

Settlement Negotiations: Statements made “without prejudice”

“Without prejudice” is a rule of evidence, which states that, communication made for settling a dispute should be excluded as evidence to be used in litigation or arbitration. All communications made for settling a dispute are “without prejudice”. When a person communicates “without prejudice,” he is implying that he is neither conceding or admitting to any part of the case, whatever he is saying is without detriment to any of his rights or claims. 

This rule allows the parties to a dispute to openly discuss their issues because it takes away the fear that whatever they are saying maybe used against them during court proceedings. 

In negotiations, one party cannot disclose the information exchanged during negotiations, in court as the communication takes place for reaching a settlement and thus is made “without prejudice”.

Privileges associated with Particular Confidential Relationships

Married person: privilege and compellability

Marriage is a protected relationship. Thus, communication that takes place between a married couple is privileged. This protection survives even after the marriage dissolves. The court cannot compel the husband or wife to disclose information that was exchanged during the course of marriage. Husband or wife cannot be forced to testify against each other. 

Section 122 of the Evidence Act deals with communication during marriage. It states that no person (either husband or wife) can be compelled or permitted to disclose the communication that happened with the person with whom he is married or has been married. 

Exceptions

The communication ceases to be privileged,

  1. When the dispute is between the married parties;
  2. When the married person or his representative gives his consent to disclose the information. 

Religious and Spiritual Advisers

It is also known as priest-penitent privilege. This privilege does not allow the conversations or confessions made to a priest or a religious advisor to be brought in court. The privilege is granted so that a person can take his religious advisor in confidence and speak openly with him. It is prevalent among people of Catholic Religion. Catholics are required to confess their sins to priests, who are bound by Church Canon Law from making any disclosure. 

Doctors and Psychologist

Doctor-patient confidentiality is the term used for the protected relation between a doctor and his patient. This protected relation makes all information exchanged between them privileged. The Medical Council of India can revoke the license of the doctor who breaches the confidentiality. 

In India, various provisions deal with doctor-patient confidentiality;

  1. The personal information of a patient is part of the right to privacy (Article 21). Privacy requires that doctors keep the information related to their patients confidential.
  2. The Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002.

Rule 7.14 of the regulations states that, no registered medical professional is allowed to disclose the information about a patient, which he learnt during exercise of his profession. 

Exceptions

A medical professional is only allowed to disclose information about a patient,

  1. In the court, on the order of the presiding judge;
  2. In circumstances of risk to the patient or the community at large;
  3. In cases of notifiable diseases.

Informers

Section 125 of the Evidence Act deals with information as to the commission of offences. The section states that,

  1. No Magistrate or Police Officer can be asked to reveal the source of his information as to the commission of an offence; 
  2. No Revenue Officer will be compelled to reveal the source of his information as to the commission of an offence against public revenue. 

The privilege granted in the section protects the source of information. This section ensures that the identity of informers is protected so that nobody can harm them. 

Journalists

The privileged communication which protects journalists is called Reporter’s Privilege or Press-Source Protection Privilege. This privilege protects journalists from revealing their sources. In India, the position of the courts on this issue is not clear. 

In India, the source protection privilege is granted under the The Press Council Of India Act, 1978. 

Section 15(1) of the Act states the general powers of the Press Council of India and section 15(2) states that, even though the Press Council of India has been granted powers, it cannot compel any newspaper, news agency, editor or journalist to disclose the source of any news or information published by that newspaper or received or reported by the news agency, editor or journalist. 

Privileges of General Application

Types 

Other forms of privilege include, 

  1. Privilege against Self Incrimination: No one can be compelled to be a witness against himself. A person cannot be forced to be a witness and testify against himself in court.
  2. Public Interest Privilege: It states that a document should not be disclosed if it harms the public interest. 
  3. State Privilege: Section 123 of the Evidence Act states that no one can give evidence in court regarding confidential documents of the state. 

Difference between Indian law and English Law

Under English law, there are two kinds of privilege granted under Attorney Client relationship, they are:

Legal advice privilege: It protects all the information exchanged between attorney and the client for the purpose of seeking legal advice. This is similar to section 126 of the Evidence Act. 

Litigation Privilege: This privilege includes all the documents that are exchanged between the lawyer and his client. This is similar to sections 127 – 129 of the Evidence Act. 

Exceptions to this rule

The only difference between between the two lies in the exceptions, under Indian Law communication with an illegal purpose is not granted privilege whereas in English law, the purpose has to be criminal in nature, not merely illegal. 

Can a person reveal privileged communications without the other person’s consent? 

In privileged communications, the privilege vests with the person disclosing the information. The recipient of such information cannot disclose it to third parties without the consent of the person disclosing the information. 

Are marital communication protected by privileged communication laws? 

Communication between Husband and Wife are protected by privileged communication laws. The court cannot force the disclosure of information which takes place between a husband and wife. 

Spouses cannot be forced to testify against each other either. 

Illustration: “A” and “B” are husband and wife. “A” is in the business of laundering money, he has told “B” his wife about his business. If “A” is ever prosecuted in court, “B” cannot be forced to disclose information against “A’s” business. 

Conclusion

There are some relationships which are deemed as protected. They are protected because a person has to place his full confidence on the other and disclose some information which may be damaging to him and his reputation. This is why the rule of privileged communication is necessary as without this rule, a client would always be worried about his lawyer disclosing information against him, or a patient would be worried about his doctor disclosing his medical details. No one would dare to ask for professional advice and no man could safely go to court, to find redressal or to defend himself. 

References

  1. “Kalikumar Pal vs Rajkumar Pal on 24 February, 1931.” https://indiankanoon.org/doc/927067/. Accessed 12 Oct. 2019. 
  2. AIR 1982 Bom 6
  3. 2002 (5) BomCR 158
  4. Shibcharan Das v. (Firm) Gulabchand Chhotey Lal, AIR 1936 All 157
  5. M.C. Verghese v. T.J. Ponnam 1970 AIR 1876

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