The document discusses privileged communications under the Indian Evidence Act, 1872, highlighting the confidentiality of communications within certain legally recognized relationships, such as marriage and attorney-client interactions. It details various sections that protect these communications from disclosure, along with exceptions where privileges can be waived or do not apply. Notably, it underscores the importance of maintaining privacy in marital communications and defines the specific circumstances under which legal communications can be revealed.

1. PRIVILEGED COMMUNICATIONS UNDER INDIAN
EVIDENCE ACT
By: Avichal Mishra
Roll Number: 02417703518
Semester and Section: 5K

2. INTRODUCTION
‘Evidence’ word has its roots in the Latin language. It is derived from the Latin
word ‘evidera’. Evidera means to discover clearly, to ascertain or to prove. As per
Blackstone, the word evidence “signifies that which demonstrates, makes clear or
ascertains the truth of the facts or points in issue either in one side or other”.
As per the Indian Evidence Act, 1872 there are basically two types of evidence
i.e. oral and documentary. This act lays down laws regarding admissibility of
some evidence, their value etc.
It also talks about privileged communication. Privileged Communication refers to
the confidential conversations or interactions between two parties who are in a
legally recognized protected relationship. The information cannot be leaked to
any third party, not even in the Court. Law can never force an individual or a
corporation to disclose the contents of privileged communications.
There are various relations which are covered under the privileged
communications.
They are:
1. Communication during marriages
2. Professional Privileges
3. State Privileges
4. Judges and magistrates

3. JUDGES AND MAGISTRATES
Section 121 and 125 talks about the incidents when Judges and magistrates
can and cannot be asked to be presented as witness. This section states that
“No Judge or Magistrate shall, except upon the special order of some
Court to which he is subordinate, be compelled to answer any
questions as to his own conduct in court as such Judge or Magistrate, or as to
anything which came to his knowledge in Court as such Judge or Magistrate;
but he may be examined as to other matters which occurred in his presence
whilst he was so acting.”
This section can be broken down into 2 parts. The first part says without any
special order from a superior court, no judge may be compelled to answer
any questions regarding his act as a judge or magistrate , or as to anything
which came to his knowledge in Court as such Judge or Magistrate.
Meanwhile the second part states that he may be examined as to any other
matter which may have occurred in the time being he was presiding as a
judge or magistrate.

4. SECTION 125
As per this section, no Magistrate or cop will be constrained to state whence he got any data concerning
the commission of any offense, and no Revenue official will be constrained to state whence he got any
data concerning the commission of any offense against the open income.

5. COMMUNICATION DURING
MARRIAGES
Trust between the spouses is the foundation of a marriage. It is
very crucial to protect the privacy of the confidential
communication between the spouses during the marital
relationship to maintain the peace of families. Both the spouses are
obliged under Section 122 of the Indian Evidence Act not to
disclose any communication which has happened during their
marriage.
The origin of this principle may be traced back to English common
law which formalized it in the English Evidence (Amendment) Act,
1853. This concept has been characterized in Indian Jurisprudence
as the embodiment of the “expectation” of secrecy between
spouses and the damage such disclosure may have upon the
familial structure.

6. This section states that:
 “No person who is or has been married shall be compelled to disclose any communication
made to him during marriage by any person to whom he is or has been married; nor shall he
be permitted to disclose any such communication, unless the person who made it, or his
representative in interest, consents, except in suits between married persons, or
proceedings in which one married person is prosecuted for any crime committed against the
other. “
The interpretation of section 122 should be narrowed or wider has
been an important question. In the case of Bhalchandra Namdeo
Shinde v. The State Of Maharashtra 2003(2) MhLj 580, this section
was interpreted by Vagyani, J. to mean that only the words said by a
spouse can be treated as privileged communication. If in case a
spouse is acting or behaving in a particular manner, his activities,
deviation from any regular practice etc are not covered under section
122.
The Supreme Court has also said that any and all communication
between spouses must remain confidential if the communication
happened during the subsistence of the marriage.

7. EXCEPTION TO THE PRIVILEGES
1. Acts or conducts apart from the communication can be disclosed.
M.C. Verghese Vs. T.J. Poonan and Anr., the Supreme Court held that
only communications that took place during the marriage are
protected under the privilege mentioned in Section 122 of the
Evidence Act. The protection continues even after the dissolution of
marriage or the death of one of the spouses. Communication before
the marriage or after the dissolution of a marriage doesn’t come
under the purview of sec 122.
In another landmark case, Ram Bharose v. State of U.P., the husband
was accused of theft of jewellery which he had gifted to her wife. He
told his wife that he had obtained it from her previous home. The wife
in the Court discloses the conduct of the accused that he had seen her
husband coming down from the roof and after taking a bath gifted it
to her. Court held that the wife could testify as to the conduct but not
the conversation.

8. 2. If the party who made the communication consents to its disclosure
i.e. waives the privilege, then the evidence of privileged
communication can be given.
3. In Suits or criminal proceedings between the two spouses.
4. Communications made before marriage or after dissolution of
marriage.

9. PROFESSIONAL COMMUNICATION
BETWEEN A LEGAL ADVISER AND
THE CLIENT.
Sections 126 to 129 of the Indian Evidence Act, 1872 deal with privilege that
is attached to professional communication between a legal adviser and the
client. Section 126 and 128 mention circumstances under which the legal
adviser can give evidence of such professional communication. Section 127
provides that interpreters, clerks or servants of legal adviser are restrained
similarly. Section 129 says when a legal adviser can be compelled to
disclose the confidential communication which has taken place between him
and his client.

10. SECTION 126
It is a statutory obligation under Section 126 of the Indian
Evidence Act for an advocate to not disclose without the consent of
the client any-
1.communication to him by the client or vice versa,
2.contents or conditions of a document, and
3.the advice given to the client,
which was obtained or given in the course and for the ‘purpose of
such employment’. This phrase means that no privilege attaches to
communication to an attorney consulted as a friend. This obligation
continues even after employment has ceased. This encapsulates
the rule of “once privileged always privileged”.

11. EXCEPTIONS OF SECTION 126
The privilege under Section 126 is subject to
certain exceptions i.e. under the following conditions
communication can be disclosed:
1.When the communication was made in furtherance of an illegal
purpose;
2.When the attorney gets to know that a crime or fraud has been
committed since employment began;
3.When the client gives consent;
4.When the information falls into the hands of a third party;
5.When a lawyer sues the client for professional purpose.

12. SECTION 127
Section 127 states that of the Evidence Act states that Section 126
applies to-
1. Interpreters
2. Clerks or servants of barristers
3. Pleaders
4. Attorneys
5. Vakils

13. SECTION 128
Section 128 states that if the client himself presents some evidence
regarding privileged communication, it doesn’t amount to a waiver of
privilege. Summoning the lawyer as a witness by the client doesn’t
amount to consent to disclose but when the client himself asks
questions pertaining to the confidential communication then it
amounts to an implied waiver of privilege.

14. CONFIDENTIAL COMMUNICATION
WITH LEGAL ADVISOR
This section states that no one can be compelled to disclose
privileged communication between a client and an attorney. If a client
offers to be a witness then the Court can extract from him any
communication as it deems necessary. Section 129 prohibits the
client from disclosing, unlike Section 126 which prohibits a lawyer. It
lifts the restrictions imposed under Section126 partially, it acts as a
counterpart of Section126 of the Evidence Act.
Court held in the case of P R Ramakrishnan v. Subbaramma Sastrigal
that as per Section129 of the Evidence Act both the client as well as
the attorney aren’t under any obligation to spell the privilege
communication to any third person.

15. SECTION 130
This section states that, no observer who isn't involved with a suit will
be constrained to create his title-deeds to any property, or any record
by ethicalness of which he holds property as pledgee or mortgagee or
any archive the creation of which may ,in general, criminate him,
except if he has concurred recorded as a hard copy to deliver them
with the individual looking for the creation of such deeds or some
individual through whom he asserts.

16. SECTION 131
In this section, nobody will be constrained to create archives in his
ownership or electronic records under his influence, which some
other individual would be qualified for a decline to deliver on the off
chance that they were in his ownership or control, except if such last-
referenced individual agrees to their creation.

17. STATE COMMUNICATION AND
OFFICIAL COMMUNICATION
The Indian Evidence Act’s section 123 states that no person is
allowed to give any evidence that may be derived from any
unpublished records of any state affairs.
Unless with the permission of the officer-in-charge or the head
officer at the concerned department. Such an officer can give or
withhold permissions regarding the same as he thinks fit.
In the case of Duncan v. Cammell Laird & Co. Ltd, it was held that in
case such a situation arises, the Court is bound to accept the decision
of the public-officer without any questions.
Further, the decision ruling out of such documents is entirely the
decision of the Judge. It is the Court who is in charge of a trial and
not the executive.

18. Section 124 of the Indian Evidence Act states that no public officer
shall be compelled to disclose communications made to him in
official confidence, when he considers that the public interests would
suffer by the disclosure.
This lays down a discretionary power on the public officer.