PRIVILEGED COMMUNICATION - A GLANCE M. PIRAVI PERUMAL

A "privileged professional communication" is a protection awarded to a communication between the legal adviser and the client. It is out of regards to the interest of justice, which cannot go on without the aid of men skilled in jurisprudence in the practice of Courts, and in those matters affecting rights and obligations, which form the subject matter of all judicial proceedings. If the privilege did not exist at all, everyone would be thrown upon his own legal resources. Deprived all professional assistance, a man would not venture to consult any skilled person, or would only dare to tell his counsel half his case. In India, Sections 126 to 129 of the Indian Evidence Act, 1872 deal with privileged 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. Section 126 states that no barrister, attorney, pleader or Vakil shall at any time be permitted to 1. disclose any communication made to him by or on behalf of his client or any advice given by him to his client in the course and for the purpose of his employment; 2. to state the contents or conditions of any document with which he has become acquainted in the course and for the purpose of his employment. There are certain exceptions to this rule. This Section does not protect from disclosure: 1. any communication made in furtherance of any illegal purpose; 2. any fact observed in the course of employment showing that any crime or fraud has been committed since the commencement of the employment. The protection afforded under this Section cannot be availed of against an order to produce documents under Section 91 of the Code of Criminal Procedure. The document must be produced, and then, under Section 162 of this Act, it will be for the Court, after inspection of the documents, if it deems fit, to consider and decide any objection regarding their production or admissibility. Under Section 126, it is not that every communication made by a person to his legal adviser is protected from disclosure but only those communications made confidentially with a view to obtain professional advice are privileged. It should also be remembered that the privileged extends only after the creation of pleader-client relationship and not prior to that. Also, communication must be made with the lawyer in his capacity as a professional adviser and not as a friend. Considering the exception to this rule, existence of an illegal purpose will prevent any privilege attaching to any communication. Thus, communications made with a view to carry out a fraud are not privileged. The scope of Sections 126, 27 and 128 is different from that of Section 129. The former Sections prevent a legal adviser from disclosing professional communication. Section 129 applies where a client is interrogated, whether he is a party to a suit or not. Section 129 states that no person shall be compelled to disclose in the Court any communication between him and his legal adviser unless he offers himself as witness. Thus, Section 129 makes a person immune from compulsory process. This immunity may extend to third parties, such as consultant who are recruited to help with the preparation of the case for trial. However, once the material has got out, it should not be kept out of Court on account of its confidential nature any more than would any other confidential matter. Also, if a party becomes a witness of his own accord he shall, if the Court requires, be made to disclose everything necessary to the true comprehension of his testimony. In a recent case, an unsigned and undated letter which was allegedly written by the advocate-accused to his client-terrorist to remain absconding was held to be professional communication and not ‘ abetment’ and thus could not be used against the advocate. But in another case, the Gujarat High Court held that disclosure was allowed where the client desired to obtain decree for money on basis of forged promissory note. The rule is established for the protection of the client, not of the lawyer, and is founded on the impossibility of conducting legal business without professional assistance, and on the necessity, in order to render that assistance effectuated, of serving full and unreserved intercourse between the two. A lawyer is under a moral 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 and for the purpose of his employment, by or on behalf of his client, or to State the contents or conditions of documents with which he has become acquainted in the course of his professional employment, without consent of his client. If such communications were not protected, no man would dare to consult a professional adviser, with a view to his defence, or to the enforcement of his rights, and no man could safely come into a Court, either to obtain redress, or to defend himself. The rigid enforcement of this rule occasionally operates to the exclusion of truth; but if any law reformer feels inclined to condemn the rule on this ground, he will do well to reflect on the eloquent language of the late Knight Bruce, LJ, who observed, "Truth, like all other good things, may be loved unwisely, - may be pursued too keenly, - may cost too much. And surely the meanness and the mischief of prying into the man’s confidential consultation with his legal advisers, the general evil of infusing reverse and dissimulation, uneasiness, suspicion and fear, into those communication which must take place, and which, unless in the condition of perfect security, must take place uselessly or worse, are too great a price to pay for the truth itself."