PRIVILEGED PROFESSIONAL COMMUNICATION

“PRIVILEGED PROFESSIONAL COMMUNICATION“

RESEARCH PROJECT

SUBMITTED BY: SUBMITTED TO:

ABHISHEK KR. GAUTAM Mr. SHUBHAM SRIVASTAVA
ROLL NO: 610 FACULTY
SEMESTER : V th NUSRL, RANCHI
SECTION : A

NATIONAL UNIVESITY OF STUDY AND RESEARCH IN LAW, RANCHI

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INTRODUCTION

It has been observed that a sound system of the administration of justice should possess three
ingredients, namely a well planned body of law based on wise concepts of social justice, a
judicial hierarchy comprised of the Bench and the Bar, learned in the law and inspired by high
principles of professional conduct and existence of suitable generation to ensure fair trial.1 A
"privileged professional communication" is a protection awarded to a communication between
the legal adviser and the client. It is out of regards to the interest of justice, which cannot go on
without the aid of men skilled in jurisprudence in the practice of Courts, and in those matters
affecting rights and obligations, which form the subject matter of all judicial proceedings. If the
privilege did not exist at all, everyone would be thrown upon his own legal resources. Deprived
all professional assistance, a man would not venture to consult any skilled person, or would only
dare to tell his counsel half his case. The following discussion compares the laws dealing with
privileged communications in India and England.
Sections 126 to 1292 deal with the privilege that is attached to professional communication
between the legal advisors and the client under the Indian Law. On the other hand privilege
under common law is incorporated under two broad heads, Legal advice privilege which protects
any communication between a lawyer and the client which have the purpose of seeking or giving
legal advice and Litigation Privilege which protects any communication between a lawyer and
third parties or between the client and third parties which are made for the purpose of existing or
contemplated legal proceedings. The rational of the privileges are grounded in the principle of
natural justice.

1
C.L. Anand, General Principles of Legal Ethics, pg. 39
2
The Indian Evidence Act, 1872

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SCOPE OF THE RELEVANT SECTIONS

Under Section 126 of the Indian Evidence Act, 1872, it is not that every communication made
by a person to his legal adviser is protected from disclosure but only those communications made
confidentially with a view to obtain professional advice are privileged. It should also be
remembered that the privileged extends only after the creation of pleader-client relationship and
not prior to that.3 Also, communication must be made with the lawyer in his capacity as a
professional adviser and not as a friend4.

There are certain exceptions to the rule given under S. 126 of the Indian Evidence Act, 1872. This
section does not provide protection from disclosure of followings :

1) Any communication made in furtherance of any illegal purpose

2) Any fact observed in the course of employment showing that any crime or fraud has been
committed since the commencement of the employment.

The scope of Sections 126, 27 and 128 is different from that of Section 129. The former Sections
prevent a legal adviser from disclosing professional communication. Section 129 applies where a
client is interrogated, whether he is a party to a suit or not. Section 129 states that no person shall
be compelled to disclose in the Court any communication between him and his legal adviser
unless he offers himself as witness. Thus, Section 129 makes a person immune from compulsory
process. This immunity may extend to third parties, such as consultant who are recruited to help
with the preparation of the case for trial. However, once the material has got out, it should not be
kept out of Court on account of its confidential nature any more than would any other confidential
matter.5 Also, if a party becomes a witness of his own accord he shall, if the Court requires, be
made to disclose everything necessary to the true comprehension of his testimony.6

In a case, an unsigned and undated letter which was allegedly written by the advocate-accused to
his client-terrorist to remain absconding was held to be professional communication and not

3
Kalikumar Pal v. Rajkumar Pal (1931)58 Cal 1379
4
Smith v. Duniell 44LJCh 189
5
Calcraft v. Guest (1898)1 QB 759
6
Munchershav Bezanji v. The new Dhurumsey S. & W. Company (188004 Bom 576

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‘abetment’ and thus could not be used against the advocate.7 But in another case, the Gujarat High
Court held that disclosure was allowed where the client desired to obtain decree for money on
basis of forged promissory note.8

The rule is established for the protection of the client, not of the lawyer, and is founded on the
impossibility of conducting legal business without professional assistance, and on the necessity, in
order to render that assistance effectuated, of serving full and unreserved intercourse between the
two9.

PROVISIONS UNDER INDIAN LAW

In the Halsbury Laws of Evidence10 it is observed that .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.
As already posited Sections 126 and 127 apply when the legal advisers or his clerk, etc are
interrogated as a witness. The professional advisor of a third party or a stranger is privileged; or
rather his client is, as well as the professional adviser of a party to the suit. Section 129 applies
when the client himself is interrogated and whether such client be a party to the case or not; and
by the terms of this latter section, it is only communications which have passed between a person
and his legal professional adviser that that are privileged. The rule is established for the
protection not of the legal advisers but of the client and the privilege, therefore, may only be
waived by the latter, it is founded on the impossibility of conducting legal business without
professional assistance, and on the necessity, in order to render that assistance effectual, of
securing the fullest and most unreserved communication between the client and his legal adviser.

7
D. Veeraseharan v. State of Tamil Nadu 1992 Cr. L.J. 2168 (Mad)
8
Gurunanak Provisions Stores v. Dalhonumal Savanmal AIR 1994 Guj 31
9
Jones v. Great Central Railway 1910 AC 4
10
4th ed., Vol 17, para 237, p. 166.

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Further, a compulsory disclosure of confidential communications is so opposed to the popular

conscience that it would lead to frequent falsehoods as to what had really taken place.
However, the provisos to S. 126 prevent the privilege conferred from becoming the shield of
crime or illegality. The rule does not apply to all that which passed between a client and his legal
advisor, but only to what passes between them in professional confidence, and the contriving of
crime or illegality is no part of the professional occupation of a legal adviser; and it can as little
be said that it is part of his duty to advise his client as to the means of evading the law.
This section does not forbid the disclosure of a fact disclosed11. The immunity from disclosure
which can be claimed by a client in respect of a communication made to his lawyer is not
absolute but limited in its scope. Section 126 prescribes the limits of the two provisos. 12 The use
of the word ‘shall’ in S. 126 indicates that the prohibition is of mandatory character. 13 Also the
privilege embodied in S. 126 is not liable to melt down on the principle of waiver of
acquiescence.14Section 126 is intended for the protection of the client and not of the lawyer.
Unless the client waives the privilege, the counsel cannot be compelled to give evidence against
him so long as the case does not fall within the exception clause.15However, it was stated in a
case that the privilege contained in S. 126 of the Indian Evidence Act, 1872 is not an absolute
privilege but only a conditional one. The lawyer is entitled to and is obliged also, to speak to the
said communication if his client expressly consents to do so.
Also, where the counsel for an accused recorded the statement of the witnesses recorded by the
court to prepare himself for an effective cross-examination of the witness, and those notes
contained instructions given by the client, the instructions given by the client being privileged
under S. 126, the counsel for the accused could not be compelled to show notes to the court.16
Now, with respect to S. 129, the case of Bustros v. White17 is regarded as the leading case upon
the subject of discovery under the new practice and has been followed in India in the case of
Wallace v. Jefferson.18. In Bustros v. White19 it was decided a court of appeal consisting of eight

11
Re An Attorney AIR 1925 Bom 1.
12
KC Sonrexa v. State of Uttar Pradesh AIR 1963 All 33.
13
Deviprasad v. Kailashchand 1980 Jab LJ 599, 601 (MP).
14
Mandesan v. State of Kerala 1985 CrLJ 61 (Ker).
15
Mohd Afzal Mir v. Haji Mahda Bhat 1983 SLJ 218 (J & K).
16
Superintendent and Remembrancer of Legal Affairs, West Bengal v. S Bhowmik, AIR 1981 SC 917
17
L.R. 1 Q.B. Div 423.
18
2 Bom. 453.
19
L.R. 1 Q.B. Div 423. p. 34.

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judges that a judge has no discretion as to refusing to allow the production of documents in
possession of a party to the suit relating to the matter in question, provided the documents are not
privileged. Section 130 of the Civil Procedure Code would appear to have been copied from the
above rule, and therefore it is advisable to adopt the English ruling as to its construction. As the
defendant’s affidavit admitted that the documents in question related to the matter in dispute, the
only question which had to be determined was whether they were privileged. They consisted of
two or three telegrams or letters, all of which passed between the plaintiff in London and his
agent in Bombay. It was said that they were confidential communication between principals and
their agents. But the mere circumstances that communications are confidential does not render
them privileged as laid down in the case of Anderson v. Bank of British Columbia.

Also in the case of Umbica Churn Sen v. Bengal Spinning and Weaving Co.20 , it was held that
where a party refers to a document in the pleadings as the source of his own information and
knowledge of facts relevant to the suit and then sets up those facts by way of answer to plaintiff.s
claim, he cannot afterwards attempt to make the case that the document are confidential and
intended merely for his legal advisers or for the purpose only of evidence in the case.

20
ILR 22 Cal. 105.

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PROVISIONS UNDER ENGLISH LAW

Under the common law one of the most important grounds on which access to evidence can be
refused is that the evidence in question is protected is protected by legal professional privilege.
This doctrine gives legal recognition to a person’s interest in maintaining the secrecy of
confidential communications in connection with his legal affairs. The doctrine for most purposes,
its scope and limits are determined by the common law, however the Parliament had given the
privilege statutory expression for certain purposes. Under S. 10(1) of the Police and Criminal
Evidence Act, 1984 (PACE) states that “items subject to legal privilege” means,
a. Communications between a professional legal advisor and his client or any person
representing his client made in connection with the giving of legal advice to the client;
b. Communications between a professional legal advisor and his client or any person
representing his client or between such an advisor or his client or any such representative and
any other person made in connection with or in contemplation of legal proceedings and for the
purpose of such proceedings; and
c. Items enclosed with or referred to in communications and made
i. In connection with the giving of legal advice, or
ii. In connection with or in contemplation of legal proceedings and for the purposes of such
proceedings, when they are in the possession of a person who is entitled to possession of them¡±

This section gives effect to two forms of privilege under common law. One form protects
communication between a client and a lawyer made in connection with a purpose of the client
obtaining or receiving legal advice from the lawyer. This is sometimes referred to as lawyerclient
privilege, or legal advice privilege to distinguish it from the other form of legal professional
privilege known as litigation privilege. Litigation privilege protects communications between a
client or the client’s lawyer, and a third party made for the dominant purpose of the client
obtaining or receiving advice or information in connection with litigation that is in existence or is
contemplated as a definitive prospect.

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Under both forms the privileges is that of the client, not the lawyer or the third party. The
privilege gives the client a right to refuse to disclose a privileged communication, 21 a right to
refuse to give evidence about it and a right that a lawyer (or the third party) shall not be
compelled to disclose or give evidence about it without the client’s consent.22 The lawyer owes a
corresponding duty to the client not to disclose a privileged communication without the client’s
consent. Such consent can be freely given or withheld. If the client does disclose or give
evidence about a privileged communication, or consents to the lawyer (or a third party) doing so,
would waive the privilege.

LEGAL ADVICE PRIVILEGE

With respect to the first type of privilege under common law, this type of privilege has been
recognized for centuries. According to Wigmore,23 the earliest reference appear in the late
sixteenth century when cases were reported holding that solicitors and counsel were exempt from
examination touching the matter on which they were acting for the client. However, in this early
period the court regarded the privilege as that of the lawyer and not the client. The modern form
of the privilege was settled in the nineteenth century as the courts of equity refined their process
of pre-trial discovery. A series of leading cases24established two propositions that are crucial for
an accurate identification of the modern rationales for the privilege. The first one being that the
privilege is that of the client rather than lawyer, while the second one being that privilege
attaches to confidential communication in connection with a purpose of legal advice irrespective
of whether litigation is in existence or contemplated.
Finally, it is considered to what extent, if at all, a court may order disclosure of privileged
communication in order to protect an interest that the court regards as having a higher priority.

LITIGATION PRIVILEGE
With respect to the type of privilege, litigation privilege protects material coming into existence
for the purpose of litigation to which the client is a party. Clearly, this may include material that
would in any event be covered by legal advice privilege, such as the client’s correspondence with

21
Minet v. Morgan (1873) 8 Ch. App. 361.
22
Greenough v. Gaskell (1833) 1 Myl & K 98.
23
McNaughton Rev., 1961 v. VIII, para 2290
24
Greenough v. Gaskell (1833) 1 Myl & K. 98; Lawrence v. Campbell (1859) Drew 485; Minett v. Morgan (1873)

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his solicitor about the conduct of litigation. Litigation privilege like legal advice privilege also
covers confidential work done by the client’s legal advisors on behalf of the client, such as legal
research, counsel’s notes, and draft opinions and so on.
However, litigation privilege is wider than legal advice privilege in one major respect. It extends
privilege to confidential communications by the client or the lawyer with third parties for the
dominant purpose of acquiring advice or information in connection with the litigation. Such
communications typically include witness statements, proofs of evidence, expert reports and so.
Further, the rules relating to communications in furtherance of crime or fraud, waiver and
secondary evidence are the same as for legal advice privilege.

RELATION BETWEEN S. 126 OF THE INDIAN EVIDENCE ACT, 1872 AND S. 91

OF THE CODE OF CRIMINAL PRODECURE, 1973

Section 91 (1) of the CrPc 1973 provides that whenever any court considers that the production
of any document is necessary or desirable for the purpose of any inquiry, trial or other
proceeding under the CrPc such court may summon the person in whose possession or power
such documents is believed to be, and require him to attend and produce it. The discretion
conferred by the section on the court is an absolute one, the only condition for its exercise being
that, in the opinion of the court, the production of the document is necessary or desirable for the
purposes of the inquiry, trial or other proceedings before the court.
Nothing in that section affects ss. 123 and 124 of Evidence Act. The provisions of this section
cannot, however, be relied upon to negative the existence of the power of the court to make an
order under S. 91(1) of the CrPc.
The Court in an appropriate case can order under S. 91, which would override the provisions of
S. 126. It cannot be urged that an order under S. 91(1) is illegal merely because it violates the
privilege conferred by this section. It is true that, in making an order under S. 91(1), the court
exercises a judicial discretion, and ordinarily it would not, in the exercise of its discretion, make
an order which violates the privilege conferred by S. 126. But it cannot be urged that no order
can be made under S. 91(1), which infringes the privilege of professional communication
embodied in S. 126.

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It seems that the power of the court to make an order under S. 91(1) is not limited by the
provisions of S. 126, but the discretion under S. 91(1) is a judicial discretion and it should not
ordinarily be exercised in such a way as to conflict with the privilege against disclosure
conferred by S. 126.25
However, it is laid down that S. 91(3) of the CrPc exempts the documents which are protected
under S. 123 and 124 but not under S. 126. Therefore in criminal cases the protection under S.
126 afforded to communications by client to lawyer cannot be availed of against an order to
produce the document; the document must be produced, and the under section 162, it will be for
the court after inspection of the documents if it deems fit, to consider and decide any objections
regarding its production and admissibility.26

25
Chandubhai v. State, AIR 1962 Guj 290.
26
Gangaram v. Habibullah, 58 A 364.

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CONCLUSION

So, it can be concluded from the above that S. 126-129 deal with the law relating to professional
communications between clients and legal advisors or their clerks. A lawyer in under a moral
obligation to respect the confidence reposed in him and not disclose communications which have
been made to him in professional confidence i.e. in the course and or the purpose of his
employment, by or on behalf of his clients, or to state the course of conditions of documents with
which he has become acquainted in the course of his professional employment, without the
consent of his client. This section gives legal sanction to this obligation. The question of
privilege arises only when either the advocate or his client are asked to disclose the professional
communication made between them. When the communication is in the form of writing and is
made known to others, there is no .confidentiality. for either the client or the advocate claiming
privilege.
The foundation of this rule, as posited is not difficult to discover. It is not on account of any
particular importance which the law attributes to the business of legal professors, or any
particular disposition to afford them protection. But it is out of regard to the interest of justice
which cannot be upheld, and to the administration of justice, which cannot go on, without the aid
of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights
and obligations, which form the subject of all judicial proceedings. If the privilege did not exist
at all, everyone would be thrown upon his own legal resources. If deprived of all professional
assistance, a man would not venture to consult a skillful person, or would only dare to tell his
counselor half his case truthfully.

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BIBLIOGRAPHY

BOOKS:
• Y V Chandrachud and V R Mahohar(eds), .Ratanlal and Dhirajlal, THE LAW OF
EVIDENCE, 22nd enlarged ed., 2006. Wadhwa and Company, Nagpur.
• Fields, COMMENTARY ON LAW OF EVIDENCE, 12th ed., v.1, 2006.
• Sarkar and Ejaz, LAW OF EVIDENCE, 4th ed., v. 1, 1999. Asoka Law House,
Delhi.

WEBSITES:
1)www.scconline.com
2)www.westlaw.com
3)www.manupatra.com/

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