Privileged Communication: Marriage, State Affairs & Professional Advice

Privileged Communication

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'. Such communications are protected by law from disclosure in Court, even though they may be relevant. The rationale is to safeguard confidentiality in special relationships (e.g., marriage, lawyer-client, State secrecy) where public interest or justice outweighs the need for evidence. (Relevant Sections: 122–129 IEA; corresponding Sections in BSA are 128–134).

Communications During Marriage

Section 128 BSA (Section 122 IEA)

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 except in the following three cases:

1. If the person who made it, or his or her representative-in-interest, consents.
2. In suits between married persons.
3. In proceedings in which one married person is prosecuted for any crime committed against the other.

Rationale:

Section 128 BSA (Section 122 IEA) prevents communications between husband and wife from being disclosed. The principle is that disclosure of such communications would disturb the peace of families, promote domestic conflicts, and undermine mutual confidence in married life. The prohibition is thus founded on public policy of high importance.

Communication Made During Subsistence of Marriage

The protection extends to all communications of whatever nature which pass between husband and wife during marriage. It applies even when interests of strangers are involved. The protection remains even after dissolution of marriage or death of a spouse, provided the communication was made during marriage. Communications made before marriage or after its dissolution are not protected.

In M.C. Verghese v. T.J. Ponnan (1970), the Supreme Court held that communications made during marriage remains privileged even after dissolution.

Exceptions to Section 128 BSA (Section 122 IEA)

1. Acts apart from communications

The conduct or acts of a spouse are not protected. In Ram Bharose v. State of U.P. (1954), the wife was permitted to testify as to her husband's conduct, though not as to what he said to her.

2. Waiver of Privilege

Privileged communication can be disclosed with the consent of the person who made it.

3. Suits or Criminal Proceedings between Spouses

The privilege does not apply where the spouses are on opposite sides in litigation.

4. Communications made before marriage or after dissolution are not protected.

5. Proof of Communication by Third Person

Communications overheard by or made in presence of third persons may be testified by them. This is so because privilege is that of the parties to marriage, and not of others.

In Queen Empress v. Donoghue (1899), a letter by an accused to his wife was seized during search of house and admitted in evidence, as it was not protected under marital privilege.

In Appu v. State (1971), a confession made by a man to his wife in the presence of other persons was admissible through those other persons.

In M.C. Verghese v T.J. Ponnan (1970), the husband wrote certain letters to his wife which contained defamatory imputation about his wife's father. His father-in-law brought a suit on the evidence of these letters. The wife passed on the letters to her father. The Supreme Court held that the letters are admissible in evidence.

Evidence as to Affairs of State

Section 129 BSA (Section 123 IEA)

Section 129 BSA (Section 123 IEA) protects unpublished State records from being disclosed. It is based on the maxim 'Salus populi est suprema lex', meaning that regard for public welfare is the highest law. The general principle of evidence is that a witness must tell the whole truth and produce any relevant document in his possession. However, disclosure of certain official documents may harm larger public interests such as national security or diplomatic relations. To prevent such injury, the State has been conferred the privilege to withhold production of such documents.

Claiming the Privilege

Privilege under this section must be claimed by the Minister, his Secretary, or the Head of the Department concerned. It is usually claimed through an affidavit affirming that the document has been examined and that its disclosure would not be in public interest.

In State of Punjab v. Sukhdev Singh Sodhi (1961), the Supreme Court held that it is primarily for the authority to decide whether disclosure would cause injury to public interest. However, the Court has the jurisdiction to examine whether the evidence sought to be excluded truly relates to affairs of the State.

Judicial Balancing of Public Interest

In State of U.P. v. Raj Narain (1975), the Court laid down following important propositions:

1. The foundation of the law behind this Section is prevention of injury to public interest.
2. Public interest in withholding evidence must be weighed against public interest in administration of justice.
3. The question of confidentiality is decided by the Head of the Department, but the Court can summon documents and review admissibility.
4. Innocuous portions not related to State affairs may be disclosed, while sensitive parts remain sealed.

In R.K. Jain v. Union of India (1993), the Supreme Court reaffirmed that no privilege is available against the Court inquiring whether the document relates to the affairs of state or not. The Court may examine whether they relate to affairs of the State. This ensures that the privilege is not misused to suppress relevant evidence.

Official Communications

Section 130 BSA (Section 124 IEA)

This section protects official communications made to public officers in confidence. It provides that no public officer shall be compelled to disclose communications made to him in official confidence, if he considers that disclosure would harm public interest.

However, the Court may compel disclosure if it finds that the officer’s refusal is unjustified. It has also been emphasized that citizens have a right to know how the State functions. The State cannot withhold information that does not involve sovereignty, security, or State secrets.

Information as to Commission of Offences

Section 131 BSA (Section 125 IEA)

This section provides that no Magistrate or Public Officer shall be compelled to disclose the source from which he obtained information regarding the commission of any offence. Similarly, no Revenue Officer shall be compelled to disclose the source of information regarding the commission of any offence against public revenue.

The rationale is to encourage people to provide information regarding offences without fear of their identity being revealed. If such protection were not provided, individuals would be reluctant to share information with authorities.

This principle is well established in criminal jurisprudence where the identity of informants may be suppressed by police in the larger interest of combating crime and protecting sources of information.

Professional Communications

Section 132 BSA (Section 126 IEA)

This section provides protection to confidential communications between a legal adviser and his client. No barrister, attorney, pleader, or vakil shall, without the client’s express consent, disclose any communication made to him in the course and for the purpose of his employment, or disclose any advice given by him to the client in such employment. It also protects the contents of documents with which the lawyer became acquainted during his professional employment.

Illustrations

(a) A client tells his lawyer: 'I have committed forgery and I want you to defend me.' This is protected, as the defence of a guilty person is not in furtherance of a crime.
(b) A client asks his lawyer to obtain possession of property using a forged deed. This is not protected, as it is in furtherance of a crime.
(c) During a trial for embezzlement, the lawyer observes an entry fabricated after his employment began. This fact is not protected, as it shows fraud committed during the proceedings.

Principle

The underlying principle is that a client must be able to disclose the whole truth to his legal adviser without fear of later disclosure. Otherwise, clients would be deterred from seeking full and frank advice.

Exceptions:

The privilege under Section 132 BSA (126 IEA) is subject to the following exceptions:

1. Communication made in furtherance of illegal purpose.
2. Observations by lawyer showing commission of crime or fraud since commencement of employment.
3. Waiver of privilege by client’s express consent.
4. Communication overheard by or disclosed to a third person.
5. Lawyer suing client for professional fees.
6. Communications where others have a joint interest (e.g., partners, company shareholders).
7. Documents already on record are not privileged.

Application to Interpreters, Clerks, etc.

The protection under Section 132 BSA extends also to interpreters, clerks, and servants of barristers, attorneys, pleaders, and vakils. These persons, in the course of their work, may come across confidential professional communications, and they are bound by the same duty of privilege.

Privilege Not Waived by Volunteering Evidence - Section 133 BSA (Section 128 IEA)

This section clarifies that if a party voluntarily gives evidence concerning privileged communications, it does not amount to waiver of privilege. Even if the party calls his lawyer as a witness, it does not imply consent to disclosure. However, if the client questions the lawyer on the specific matter of communication, that constitutes consent and the lawyer may disclose it.

Confidential Communications with Legal Advisers - Section 134 BSA (Section 129 IEA)

This provision protects confidential communications between a client and his legal adviser. No one shall be compelled to disclose in court any confidential communication made to a legal adviser. However, when a client voluntarily offers himself as a witness, the court may compel him to disclose such communication as may be necessary to explain his evidence.

 

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