Privileged Communication
Introduction
Privileged communication as the name suggests are certain communication which enjoys immunity from law. These are the communications that cannot be disclosed by a witness, or, even if the witness wishes to disclose them, will not be allowed to do so. The basic ground for this concept is that the interest of the state is supreme and overrides that of the individual. Privileged communication is given in The Indian Evidence Act, 1872. Section 122 to Section 129 of the Act deals with same.
Section 122: Communication made during the marriage
A spouse cannot be forced to reveal any communications made to them during the course of marriage by a spouse to whom they are or have been married, and such communications will not be disclosed unless the following three conditions are met:
- If the person who made it, or his or her representative-in-interest, consents, or
- In suits between married persons, or
- In proceedings in which one married person is prosecuted for any crime committed against the other.
Thus, Sec. 122 prohibits disclosure of communication between a husband and wife, on the grounds that the disclosure of such testimony would be likely to have a detrimental effect on the domestic tranquillity of the family, as well as to diminish, if not eliminate, the sense of trust between spouses, which is the most comforting element of marriage.
It is important to note that the protection is limited to such matters as have been communicated ‘during the marriage’. Such communication (during subsistence of marriage) remains protected even after the dissolution of marriages or when one spouse dies. But those made either before marriage or after its dissolution are not protected M.C. Verghese v T.J. Ponnan.
Section 123 and Section 124 Official Communication Privilege
Sec. 123 Evidence as to Affairs of the State: This section is premised on the maxim “Salus populari est supreme lex”, meaning, “The public good is the highest law”. As a general rule, the witness is required to tell the entire truth and to produce all documents in his possession or in his capacity as a witness that are relevant to the case. However, in some cases, the disclosure of an official document may be detrimental to the greater public interest. In those cases, the State has the privilege not to disclose certain documents relating to “affairs of the state”.
Sec. 123 must be read in conjugation with Sec. 162. Sec. 162 provides that when a person has been summoned to produce a document, he should produce it even if he has any objection to its production and the court shall decide the matter of his objection; the court may inspect the document, unless it refers to matters of State. The privilege under See 123 should be claimed either by the Minister, chis Secretary, or by Head of the Department.
Section 124 Official Communication: This section extends this protection to official records. However, this privilege is not absolute and may be waived if the public interest requires disclosure. The court can compel the disclosure of the document if the court disagree with the officer. Furthermore, citizens have “Right to Know” how their state is functioning, hence, the state cannot withhold the information on matters which have nothing to do with the sovereignty.
Section 126 Attorney-Client Privilege
The Indian Evidence Act (Section 126) provides that attorney-client privilege applies to any communication between an individual and their attorney during the course of a professional relationship. This privilege serves to ensure that the individual is fully forthcoming with their lawyer in order to receive the most appropriate legal advice. The privilege is absolute and communication is safe guarded even in the event of the death of the client.
Section 127 Doctor-Patient Privilege
Under Section 127, the privilege extends to the communication between the patient and the medical practitioner. This privilege is intended to ensure that the patient tells the truth about the medical history and the symptoms of the patient so that doctors can treat the patient appropriately. However, if the patient’s physical or mental health is at stake and the patient’s information is deemed essential for the prosecution of the case, the privilege can be waived.
Sec. 128. Privilege Not Waived by Volunteering Evidence
Sec. 128 lays down that if the party making the communication under Sec. 126 gives evidence of the matter covered by the communication, that does not amount to a waiver of privilege. Even if such party calls the lawyer as a witness, it will not amount to a ‘consent to disclosure.’ But if he questions the lawyer on the very matter of the communication that will amount to consent and by reason of it the lawyer can disclose the communication.
Sec. 129. Confidential Communication with Legal Advisers
It may be noted that Sec. 126 prohibits a lawyer from disclosing matters which have come to his knowledge from his client for the professional purpose. Sec. 129, on the other hand, places the client beyond the range of compulsion as to matters which have passed between him and his professional legal adviser.
Conclusion
The purpose of granting such privilege to certain communications is to safeguard the public, whether it is to protect their marriage or to prevent the leak of government information. If this law were not in place, many classified information could easily be leaked in the process of trial, which would have jeopardized the security of our nation. If a husband or wife were to testify against each other, it would lead to a loss of trust in the marital bond and would disrupt the peace among the families. This would lead to the formation of family broils which could have the potential to destroy the family. The Indian evidence law, 1872 is a good law and the laws relating to privilege communications are appropriate and have been enacted with the public interest in mind. There are specific provisions for family matters, professional matters, and matters concerning the state.
Author: Aditi Pandey, Campus Law Centre, Faculty of Law, University of Delhi
