Privileged Communications under BSA

Introduction 

Privileged communications refer to interactions that are protected from being disclosed in court proceedings. Communications between spouses, public officials, judges and magistrates, professionals and their clients are categorised as privileged under certain circumstances.  

• Privileged communications are of two kinds, namely those which are privileged from disclosure and those which are prohibited from being disclosed. 
• Section 128 to section 134 of Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with privileged communication by declaring certain exceptions to the general rule. 

Communication During Marriage: Section 128 

• Section 128 of BSA protects communications between spouses during marriage.  
• It prohibits any person who is or has been married from being compelled to disclose any communication made to them by their spouse during marriage. 
• The privilege commences from the date of marriage of the spouses. 
• Communication made after the dissolution of marriage is not protected under this section. 

Protection when not Available: Exceptions to Section 128 

• Consent (Waiver of Privilege): 
  • Evidence of a privileged communication can be given by a spouse with the express consent of the party who made the communication or with the consent of his representative in interest. This is known as waiver of privilege. 
• Communication made before marriage or after its dissolution: 
  • Any communications made by the spouses before their marriage or after dissolution of marriage, are not protected under this section. 
• Proceedings inter parties (Suit or Criminal proceedings between the two spouses): 
  • The object of section 128 is to preserve the mutual confidence between both spouses, but when the spouses are themselves litigate against one another then the section does not apply. 
• Conducts/acts apart from communications: 
  • The ban of Section 128 is confined to “Communications” only. 
  • Only communications are protected from disclosure but not the acts/conduct. 
• Proof of communication by third person: 
  • The privilege under this section operates only against the husband or wife but not against third person. 
  • Neither the husband nor the wife can be compelled to give evidence about matrimonial communications, but nothing prevents a third person from giving evidence of such communication between them.  

Privilege as to Affairs of State: Section 129 

• Section 129 protects unpublished official records relating to state affairs.  
• It restricts individuals from giving evidence derived from such records without the permission of the head of the department concerned.  

Privilege as to Official Communication: Section 130 

• As an extension of the principle of Section 129, this section provides for the privilege of protection of confidentiality of official communications between public officials. 
• It states that no public officer shall be compelled to disclose such communications if they consider that the public interests would suffer by the disclosure. 
• This provision ensures that public officers can perform their duties without the fear of sensitive information being exposed. 

Privilege as to Information as to Commission of Offences: Section 131 

• Section 131 states that no magistrate or police officer shall be compelled to disclose the source of information regarding the commission of an offence if the disclosure would cause harm to the informant or other persons. 
• This section aims to protect informants and encourage the reporting of crimes without fear of retribution. 

Privilege to Professional Communications: Section 132 to 134 

• Professional Communications: Section 132 
  • Section 132 protects communications between an advocate and their client.  
  • It prohibits advocates from disclosing any communication made to them in the course of their employment by or on behalf of their client. 
• Exception to the privilege under Section 132 
  • Illegal Purpose (Proviso 1): Communications made in furtherance of an illegal purpose are not protected. 
  • Crime/fraud since employment began (Proviso 2): If an advocate finds iin the course of his employment that any crime/fraud has been committed since the employment began, he can disclose such information. 
  • Disclosure with client consent: Such communications can be disclosed with the client's express consent. 
  • Advocate’s suit against client: If the advocate himself sues the client for his professional services, he may disclose so much of the information as is relevant to the issue. 
  • Information falling into hands of third persons: This prohibition works against the advocate, but not against any other person.  
  • Documents already put on record: No privilege is available in respect of such documents. 
  • Joint interest: No privilege attaches to communication between solicitor and client as against persons having a joint interest with the client in the subject-matter of communication. 

Privilege not Waived by Volunteering Evidence: Section 133 

• Section 133 explains that the privilege provided in Section 132 cannot be waived by volunteering evidence of the client. The privilege belongs to the client and therefore he alone can waive it. 
• That privilege is not lost by calling the advocate as a witness, unless the party having the privilege questions him relating to confidential matters. 
• The object of section 133 is to protect the client and to save the integrity of the legal profession. 

Confidential Communications with Legal Advisors: Section 134 

• Section 134 protects confidential communications between individuals and their legal advisors.  
• It provides that no one shall be compelled to disclose to the court any confidential communication with their legal advisor unless they offer themselves as a witness. 
• The privilege aims to encourage full and frank communication between clients and their legal advisors, which is essential for effective legal representation. 

Case Laws 

• Ram Bharosey v. State of Uttar Pradesh (1954): 
  • The Supreme Court held that ordinary conversations or letters relating to business should not be regarded as privileged. 
• M.C. Verghese v. T.J. Ponnam  (1970): 
  • The Supreme Court held that even though a spouse is debarred from deposing to the contents of such correspondence, the same can be proved by a third person. 
• State of Uttar Pradesh v. Raj Narain (1975): 
  • The Supreme Court held that, the Court will proprio motu exclude evidence the production of which is contrary to public interest. 
• Nagaraj v. State of Karnataka (1996): 
  • The Court held that, if a telephonic conversation between an accused and his/her spouse is intercepted by the police, the police may be permitted to prove such a communication.  

Conclusion 

Privileged communications are a fundamental aspect of the BSA, reflecting the balance between the necessity of evidence in legal proceedings and the protection of confidential communications in specific relationships. The provisions within the Act carefully delineate the scope and limitations of these privileges to uphold both transparency in the judicial process and the privacy of sensitive interactions.