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Privileged Communications in Evidence Act

Privileged Communications in Evidence Act


There exist certain subjects that a witness simply can't be forced to reveal, or even if they're willing, they won't be allowed to spill the beans. These are what we refer to as 'privileged communications.'

The presentation of specific communications and documents enjoys immunity from disclosure, either due to privilege or because it's against public policy or, in deference to the supremacy of the State's interests, trumps that of an individual.

Privileged Communications made during marriage

Section 122 safeguards communications exchanged between spouses, holding them inviolable from disclosure. This rule stands firm except in three specific instances: with consent from the communicator or their representative-in-interest, in legal disputes between spouses, or in cases where one spouse faces prosecution for a crime against the other.

The rationale behind this provision is evident: allowing such disclosures could dangerously disrupt familial harmony, incite domestic conflicts, and undermine the fundamental trust that defines married life.

Hence, this prohibition is rooted in a profound principle that no court can overlook.

Importantly, this safeguard extends beyond strictly confidential exchanges to encompass all communications between spouses, regardless of their nature or the involvement of third parties.

Even in cases where only the interests of outsiders are at stake or where either spouse is a party to legal proceedings, this protection holds.

Crucially, the shield provided by Section 122 applies exclusively to communications exchanged "during the marriage." Such communications, regardless of whether the marriage ends through dissolution or death, retain their protected status.

However, communications made before marriage or after its dissolution fall outside this protection

In the case of Ram Bharose v. State of U.P,9 AIR 1954 SC 704, the court clarified that Section 122 protects only communications between spouses and not their actions or behaviours. Consequently, a wife can testify regarding her husband's actions on a particular occasion but cannot disclose what he said to her.

In the case of Queen Empress v. Donoghue ILR(1899)22Mad.l, the issue revolved around the admissibility of a communication discovered by the police during a search of the accused's house and addressed to his wife.

It was determined that the communication could be considered as evidence since the wife was not under examination in the case and was neither compelled nor permitted to disclose its contents.

In M.C. Verghese v. TJ Ponnan AIR 1970 SC 1876, the court established that the prohibition outlined in Section 122 applies exclusively to spouses and not to third parties.

Furthermore, it was ruled that this prohibition persists even after the dissolution of marriage. The court emphasised that the status of the individuals at the time of communication, rather than at the time of providing testimony, is the determining factor.

Evidence as to affairs of State

Section 123 safeguards unpublished State records from disclosure, permitting access only with the discretion of the relevant department head. This provision stems from the principle "Solus populi est supreme lex," emphasising public welfare as paramount.

While the general rule demands truthfulness and the production of relevant documents by witnesses, certain official records may jeopardize broader public interests, such as state security or diplomatic relations.

Hence, the state retains the privilege to withhold such documents pertaining to "affairs of the State."

This section hinges on two key criteria: firstly, that the document is an unpublished official record concerning state affairs, and secondly, that permission for disclosure lies with the department head.

Evidence derived from unpublished state records cannot be presented without the permission of the department head, aligning with principles of public policy.

Section 123 should be understood alongside Section 162, which mandates the production of summoned documents, with objections to be decided by the court except when concerning matters of State.

The privilege under Section 123 may be invoked by the Minister, Secretary, or Department Head, typically through the filing of an affidavit. This affidavit attests to the careful examination of the document and asserts that its disclosure would be contrary to public interest.

The court then assesses the document's nature, the grounds for privilege, and the overall circumstances before determining whether to order its production.

In the case of State of Punjab v Sukhdev Singh Sodhi (AIR 1961 SC 493), the Supreme Court outlined several key points:

- The authority is responsible for assessing whether disclosure would harm public interest.

- The court must investigate whether the evidence pertains to State affairs.

- While the court cannot directly inspect the document, it may conduct a preliminary inquiry and consider collateral evidence to evaluate the validity of objections.

Official Communications

Section 124 shields public officers from being compelled to disclose communications made to them in official confidence if they believe such disclosure would harm the public interest.

Unlike Section 123, which applies broadly, Section 124 specifically addresses public officers and pertains to communications made in official confidence.

The term "public officer" refers to an individual with public duties who receives confidential communications that could potentially harm public interests if disclosed.

This provision aims to prevent the initial disclosure of such communications, particularly those not known outside the circle of confidentiality. Once disclosed to a member of the public outside this circle, Section 124 no longer applies.

The privilege under Section 124 can only be invoked by the head of the department or the department's Secretary through an affidavit; a mere certificate is insufficient.

If an unpublished official record related to state affairs is involved, the department head decides whether disclosure would be against public interest and whether the privilege can be claimed.

If the head of the department refuses to disclose it, the court cannot compel them to produce the document or reveal its contents.

Section 125: Protection of Informants

No Magistrate or Police-officer shall be compelled to disclose the source of any information regarding the commission of any offence. Similarly, no Revenue-officer shall be compelled to reveal the source of any information regarding offences against public revenue.

Explanation: In this section, "Revenue-officer" refers to any officer involved in or related to the administration of any branch of public revenue.

Based on considerations of public policy, this section prohibits the compulsion of magistrates, police officers, or revenue officers to divulge the sources of information they receive regarding criminal activities or offences against public revenue.

It is crucial to the effective detection of crimes that those individuals serving as conduits for such information are not unnecessarily exposed.

Professional Communications (Secs. 126-129)

Professional communications, as delineated in Sections 126 to 129, pertain to confidential exchanges between a professional, such as a lawyer, and their client, made within the scope of their professional engagement.

These sections establish the circumstances under which legal advisers can disclose such communications and outline exceptions to the privilege.

Section 126: Protection of Professional Communications

Section 126 safeguards barristers, attorneys, pleaders, and vakils from divulging any communication or advice received from their clients or any details of documents encountered during their professional engagement, unless expressly permitted by the client.

However, this protection does not extend to communications made in furtherance of illegal activities or facts indicating the commission of a crime or fraud since the commencement of the professional engagement.

The rationale behind this provision is to encourage clients to fully disclose their cases to their legal advisers, ensuring effective representation and a fair trial.

Exceptions to Section 126

Exceptions to Section 126 include communications made in furtherance of illegal purposes, disclosures necessitated by crimes or frauds discovered during the professional engagement, and disclosures with the express consent of the client.

Additionally, communications overheard by third parties are not protected, and disclosures may be made in cases where the lawyer sues the client for professional services or where joint interests are involved.

Section 128: Privilege Not Waived by Volunteering Evidence

Section 128 clarifies that merely providing evidence, either voluntarily or otherwise, does not constitute a waiver of privilege under Section 126.

However, if the client questions the lawyer regarding the communication, it amounts to consent, permitting disclosure by the lawyer.

Section 129: Confidential Communication with Legal Advisers

Section 129 partially lifts the bar imposed by Section 126 by stipulating that individuals cannot be compelled to disclose confidential communications with their legal advisers to the court.

However, if a client offers themselves as a witness, they may be compelled to disclose such communications necessary to clarify their testimony.

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