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Privileged Communication under the Evidence Act


Authored by - Anjali Shehawat

Keywords - The Indian Evidence Act, 1872, Privileged Communication, Producing as Evidence, Protection to Certain Relations.


Abstract

“Attacked as impediments to the search for truth, praised as guarantors of individual privacy[1],” the privileges against producing evidence in a court have always been under scrutiny and criticism. Privileged communication, i.e., protected communication or details which cannot be made to disclose as piece of evidence. This provides protection to certain people and authorities from being vulnerable to a breach of their relationship or security. Provisions of such nature were developed and included in the legal system overtime to avoid infringement of peace and harmony between certain relations. The fact that these privileges can be misused and thus lead to infringement of justice cannot be ignored. ‘Social realities require that some balance be found between the forces of truth-seeking and privacy[2].’


Introduction

The legal system works towards establishing peace in society and to resolve disputes if there are any. There have been framed many law provisions for the same. One such provision is the 'Privileged Communication', that prevents a person from witnessing against their clients/ themselves spouse, etc. This provision is mentioned under the Indian Evidence Act to prevent using someone's testimony as evidence to avoid situations that can lead to disputes. These are necessary for the better function of law and to avoid any tensions in society. The privileges which are mentioned involve a marital relationship, attorney-client relationship, the privilege of a public officer and judge from testifying against his own conduct, non-disclosure of the source of information, etc. India has obtained this from the common law of the UK. This practice is also followed in the USA, countries of the European Union and other countries.

PRIVILEGED COMMUNICATION UNDER THE INDIAN EVIDENCE ACT, 1872

Privileged communication simply means protection from disclosing any communication between two parties in a certain relationship with each other. It also includes the protection of government official documents, protection of judges and public servants from witnessing against themselves, etc. These provisions are included in the Indian Evidence Act, 1872 from Section-122 to Section-132. In the Rafael Deal case, the pricing details were presented in court in a sealed envelope for the reasons of national security and the court entertained it. The disclosure of any other technical details was avoided by the Supreme Court and treated the deal as a bona fide deal in favor of the country. The privileged communications protected under the act are:


· Sec 121 provides protection to a magistrate from being compelled to make a statement regarding his/her conduct in court or in relation to any affair he/she dealt with during his/her tenure. This privilege empowers judicial officers to carry out their duty smoothly and protects them from being incriminated for action taken in furtherance of justice.


· Sec 122 provides privilege to a married couple against giving testimony against his/her spouse. The wife or husband of a person cannot be compelled to give testimony in court against their spouse. This provision is made to protect trust between married couples and to respect the private conversations between couples.


“Section 120 of the Indian Evidence Act, 1872 would, in the absence of any specific prohibition, operate to make a spouse a competent witness against the other spouse. Once this provision comes into effect, voluntary testimony by a spouse, as to matrimonial communications will be allowed...This should strike a better balance between reaching the ends of justice and prevent marital discord[3].”


· Sec 123 provides that no unpublished documents of the official nature of government should be made available as evidence unless permission is provided by the concerned authority.


· Sec 124 provides privileges to the public officer to not be compelled to disclose any communication made to them in an official capacity, which they seem to be of sensitive nature[4].


· Sec 125 provides for protection source of information, i.e., a magistrate or police officer cannot be compelled to disclose their source of evidence.


· Sec 126 provides protection to communication between an attorney and his client so the client speaks up freely and legal aid can be provided to him properly.


· Sec 127 is an extension of the application of Sec 126 on barristers, clerks, etc.


· Sec 129 provides protection to a person from disclosing communication between him and his legal advisor.


· Sec 130, no witness who is not a party to suit can be compelled to produce title deeds, mortgage or pledge documents to incriminate himself unless he has given written consent to it.


· Sec 131, no person can be compelled to produce an electronic device that has records on it, that can be used as evidence, without the consent of such person.


The Right to privacy, the right against self-incrimination, marital bonds, sources of information, etc. are safeguarded and encouraged by the provisions of the Indian Evidence Act, 1872. These privileges are not absolute, i.e., there are certain conditions under which these are not applicable and for the need of evidence, a person can be asked or questioned about such communications. Analysis

“If privileges are to be taken seriously, a waiver cannot be ignored. Too often, however, the metaphor of sword and shield replaces any attempt to give meaning to the word "fairness"; and too often the word "confidentiality" becomes a shibboleth without any indication why confidentiality should matter[5].” Privilege comes with responsibility, and it should not be treated as a way out. These should be used to administer justice, not to hinder it through abuse. This has to be considered whenever there is an application of privileged communication by the executive or any other public figure. Sometimes, under the purview of such privileges, they get away with wrongs that harm common people or breach the integrity of their duty. On a certain level, people should be made aware of affairs. These provisions under Evidence Act were framed to prevent any violation of fiduciary relationships, for better legal advisers, for protection of sources of information, for protecting any harm to the nation and public officers. It can be said this depends on the judicial system to determine and preserve the use of such laws. This should be ascertained that such evidence is kept with the exercise of valid law and without any malafide intention to abuse law.

[1] “Developments in the Law: Privileged Communications”, Harvard Law Review, May, 1985, Vol. 98, No. 7 (May, 1985), pp. 1450-1666, The Harvard Law Review Association, http://www.jstor.com/stable/1340953.

[2] “Developments in the Law: Privileged Communications”, Harvard Law Review, May, 1985, Vol. 98, No. 7 (May, 1985), pp. 1450-1666, The Harvard Law Review Association, http://www.jstor.com/stable/1340953. [3] Tanmay Amar, “Matrimonial Communications: Wedded to the Irrational”, Student Bar Review, 2005, Vol. 17 (2005), pp. 59-72, Student Advocate Committee, http://www.jstor.com/stable/44290309.

[4] Indian Evidence Act, 1872, http://legislative.gov.in/actsofparliamentfromtheyear/indian-evidence-act-1872. [5] “Developments in the Law: Privileged Communications”, Harvard Law Review, May, 1985, Vol. 98, No. 7 (May, 1985), pp. 1450-1666, The Harvard Law Review Association, http://www.jstor.com/stable/1340953.





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