Communications as Privileged from Disclosure as Mentioned under the Indian Evidence Act

The Indian Evidence Act mentions three kinds of communications as privileged from disclosure:

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1. Matrimonial communications;

2. Official communications; and

3. Professional communications.

1. Matrimonial Communications:

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, viz.,:—

(i) If the person who made it, or his or her representative in interest, consents; or

(ii) In suits between married persons; or

(iii) In proceedings in which one married person is prosecuted for any crime committed against the other. (S. 122)

(This has already been discussed above.)

2. Official communications:

The provisions of the Act relating to official communications are contained in Ss. 123 and 124 of the Act, and can be discussed under the following two heads, viz.:

(a) Evidence as to affairs of State (S. 123)

(b) Disclosure of communications made in official confidence (S. 124)

(a) Evidence as to affairs of State (S. 123):

S. 123 lays down that no one can be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who may give or withhold such permission as he thinks fit.

Under this section, the question whether the production of the document in question would be injurious to public interest is to be determined, not by the judge, but by the head of the department having custody of the document. (Beatson v. Skene, 1860 L.J. Ex. 430)

Commenting on this privilege, the Privy Council has remarked that the privilege regarding production of State papers is a narrow one, which must be exercised most sparingly. The principle and foundation of the rule is concern for public interest, and the rule cannot be applied any further than the attainment of the object requires. (Henry Greer v. State, 1931 PC. 254)

The Act does not lay down as to what documents are to be regarded as unpublished official records relating to affairs of State or communications made to an officer in his official capacity. It is not every official record or register or every official communication which can be regarded as privileged.

The principle to be applied in every case is that documents otherwise relevant and liable to production must not be produced if the public interest requires that they should be withheld. This test may be found to be satisfied either (a) by having regard to the contents of the particular document, or (b) by the fact that the document belongs to a class which, on ground of public interest, must as a class be withheld from production.

The following are examples of unpublished records of State, viz.—

(a) Document exchanged between two States;

(b) Document exchanged between the State and its own subjects;

(c) Document exchanged between Heads of Department of another State;

(d) Document exchanged between Heads of Department or between Ministers.

(b) Disclosure of communications made in official confidence (S. 124):

Under S. 124, no public officer can be compelled to disclose communications made to him in official confidence, if he considers that the public interest would suffer by the disclosure.

The question that arises under this section is whether the commu­nication in question was made to the public officer in his official capacity. This is a condition precedent which must be satisfied before the privilege can be claimed, and this question is primarily to be decided by the Court before which the privilege is claimed.

Courts have adopted a basic principle for deciding whether a particular document is a communication made in official confidence to a public officer or not, namely, whether the document produced was under a process of law or not. If the former is the case, it would be difficult to say that the document produced under the process of law is a communication made in official confidence.

If, on the other hand, a document is produced in a confidential departmental enquiry, not under the process of law, but for gathering of information by the department for guiding them in future action, if any, which they have to take, it would be a case of communication made in official confidence.(Killi Suryanarayana, 1954 Mad. 278)

3. Professional communications:

A professional communication means a confidential communication between a professional legal adviser and his client made to the former in the course, and for the purpose, of his employment as such advisor. The privilege attaching to confidential professional disclosures is confined to the case of legal advisers, and does not protect those made to clergymen, doctors, etc.

A professional legal adviser means a barrister, attorney, pleader or vakil. A client cannot be compelled, and a legal adviser cannot be allowed, without the express consent of his client, to disclose the oral or documentary communications passing between them in professional confidence (S. 126). Similarly, an interpreter, clerk or servant of such legal adviser cannot disclose such communication. (S. 127)

The Bombay High Court has held that a salaried employee who advises his employer on legal matters is entitled to the same protection as other advisers like a barrister, attorney or pleader, under Sections 126 and 129 of the Act. Therefore, any communication made in confidence to him by his employer seeking his legal advice would be protected under Ss. 126 and 129, provided that such communication is not made in furtherance of any illegal purpose. (Municipal Corporation of Greater Bombay v. Vijay Metal Works, A.I.R. 1982 Bom. 6)

Problem:

A lawyer, in the course, and for the purpose, of his employment as legal adviser, receives certain instructions from his client. The employment ceases and the client dies. The lawyer is subsequently called to give evidence and disclose the said instructions. Can he be permitted to do so? Explain giving reasons.

Ans:

The lawyer cannot be permitted to do so. A lawyer is under an obligation to respect the confidence reposed in him and not to disclose communications which have been made to him in professional confidence, i.e., in the course of and for the purpose of his employment, by or an behalf of his clients. If such communications were not protected, no man would dare to consult a professional advisor, with a view to his defence, or the enforcement of his rights, and no man could safely come to Court, either to obtain redress or to defend himself.