PROJECT REPORT

Under the guidance and supervision of:

Asst. Prof. Ms. Chinmayee Das

Submitted by:

DEV VERMA

Regd. no. - 2041802037

Batch- BA LL.B (H) 4th year.

Siksha ‘O’ Anusandhan National Institute of Law

(Faculty of legal studies)

Siksha ‘O’ Anusand

Anusandhan
han University Bhubaneswar

1|Page
ACKNOWLEDGEMENT
I take this opportunity to express my gratitude to the people who have been

instrumental in the successful completion of this project. I owe a great many thanks, to many

people who have helped and have supported me throughout the making of this project. I would

like to show my greatest appreciation to Asst. Prof. . Chinmayee Das.

My deepest gratitude to Prof (Dr.) S.A.K. AZAD, Dean, SNIL, for having such a work

in the academic for us and enabling us to work for it with great interest.

I would also like to thank my friends without whom this work would have been a distant

reality. I will be failing in my duties if I do not extend my heartfelt thanks to my family and

well-wishers.

Above all, my special thanks; gratitude goes to the Almighty God for the divine

intervention in this academic endeavour.

Thank you!!!

DEV VERMA

Reg. No. 2041802037

5 years Integrated BA LLB (8THSemester)

S‘O’A National Institute of Law (SNIL)

S‘O’A University, Odisha, India

2|Page
DECLARATION
I certify and hereby declare that the Project Work on the topic “Privileged communication” for
the academic session 2023-24, had been prepared by me under the guidance of Asst. Prof. Ms.
Chinmayee Das and I declare that the same has not been submitted for evaluation elsewhere.

DEV VERMA

Reg. No. 2041802037

5 years Integrated BA LLB (8THSemester)

S‘O’A National Institute of Law (SNIL)

S‘O’A University, Odisha, India.

3|Page
GUIDE CERTIFICATE

This is to certify that Mr. DEV VERMA bearing Reg. No. 204182014
BA.L.LB (H) course has successfully completed her subject analysis on the
topic “PRIVELEGED COMMUNICATION” as provided by the institution
for the VIII Semester.

Ms. Chinmayee Das

Assistance Professor of LAW

SOA National Institute of Law
Bhubaneswar, Odisha

4|Page
CONTENTS

CHAPTERS PAGE NUMBER

Abstract 07
Ch.1 - Introduction 8-9
Ch.2 - Legislative provisions 10-28
Ch.3 - Judicial analysis 29-38
Ch.4 - Privileged communications
between counsel and the corporate 32 - 37
client
Ch.5 - Conclusion & suggestions 38
Bibliography 39

5|Page
ABSTRACT
The concept of privileged communication and evidence by accomplice is recognized in
various legal systems around the world, including in international criminal law and as well
as in Indian Evidence Act, 1872. Privileged communication refers to certain confidential
information that cannot be disclosed in court, such as communications between lawyers
and clients or doctor-patient privilege. Evidence by accomplice refers to the testimony of a
person who has aided or abetted in the commission of a crime. This research paper
examines the legal framework governing privileged communication and evidence by
accomplice in international criminal law. The Indian Evidence Act, 1872 perceives the idea
of privileged communication and evidence by accomplice in India.

6|Page
CHAPTER - 1

INTRODUCTION
Privilege' means a right, advantage or immunity belonging to a person, class or office. The
Privilege of a Witness means the right of a witness to withhold evidence to disclose certain
matters. Communication means imparting or exchange of information; sharing of knowledge
by one with another; the thing communicated. It means to impart, confer or transmit
information. The communications that cannot be compelled to be disclosed are called
'Privileged Communications’. The principle of Privilege of a Witness is based on the grounds
of convenience and public policy.

Privileged communications are exceptions to the general rule of communications i.e. a

witness is bound to tell the whole truth and to produce any document in his possession or
power relevant to the matter in issue. It rests with the party claiming the privilege to show
that the cause is brought within the exception. he exception covers cases where a
communication is made bona fide upon any subject matter in which the party making it has
an interest, or in reference to which he has a duty, legal, moral or social, which he may fairly
be presumed to have led to the communication, when made to n person having a
corresponding interest or duty. In privilege communications we will be discussing
Communications during marriage discussed in section 122 of the evidence act, Official
communications discussed in section 124 of the evidence act, Information as to commission
of offences discussed in section 125 of the evidence act, Professional communication
discussed in section 126 of the evidence act, Confidential Communications with Legal
Advisors discussed in section 129 of the evidence act. Evidence is an essential part of a trial
as it is used to establish any relevant fact and reach a conclusion. Evidence can be in many
forms; witness testimony is one of them. A witness can testify based on any event they have
seen or any communication they have heard or been a part of.

However, some conversations do not need to be disclosed, even if required during a trial.
Such conversations are known as privileged communications. These communications can be
privileged because of personal or professional reasons.

“Privileged Communications” are specific types of confidential information that are legally
protected from disclosure in court or other legal proceedings. These communications are
regarded as privileged because they are thought to be necessary for the maintenance of

7|Page
certain important relationships, such as those between clients and their solicitors or between
spouses.

Attorney-client communications, for example, are generally privileged, which means that a
lawyer cannot be forced to reveal what their client has told them privately. Spousal
communications are typically privileged as well, which means that one spouse cannot be
forced to testify against the other in court.

An “accomplice” is someone who has aided or abetted another person in the commission of a
crime. An accomplice may be charged with the same crime as the primary perpetrator, but he
or she may also be offered a deal in exchange for testifying against the other party in
exchange for a reduced sentence.

In terms of evidence, privileged communications are typically inadmissible in court, but this
may vary depending on the circumstances and the type of privilege that applies. Evidence
provided by an accomplice, on the other hand, may be admissible in court, but it is frequently
subject to close scrutiny by the court due to the witness’s potential bias.

The Indian Evidence Act of 1872 is the primary law in India governing the admissibility and
proof of evidence. The importance of favoured privileged communication and evidence by
accomplice in the administration of justice is recognized by the Act.

Privileged communication refers to specific classified information that is protected from

disclosure in court, whereas evidence by accomplice refers to the testimony of someone who
has aided or abetted in the commission of a crime. This research paper’s purpose is to
provide an overview of the legal framework governing privileged communication and
evidence by accomplice under the Indian Evidence Act of 1872.

8|Page
CHAPTER - 2

LEGISLATIVE PROVISONS

Section 122-Privilege given during communication during Marriage.

Section 122 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.”

Example –Suppose, the husband makes confession to his wife that he has committed a theft
or murder of a person. The wife to whom the confession is made cannot be called to the
Court and compelled to give evidence against her husband.

Section 122 gives protection to the communication during marriage on account of public
policy and provides domestic peace and conjugal confidence between the spouses.

Marital privilege or spousal privilege seems to have originated from common law
jurisprudence. The fundamental principle behind this privilege is mentioned in the case of
S.J. Choudhary vs The State1, which was decided on 26 July 1984, where Justice Khanna
observes-

“So much of the happiness of human life may fairly be said to depend on the inviolability of
domestic confidence that the alarm and unhappiness occasioned to society by invading its
sanctity and compelling the public disclosure of confidential communications between
husband and wife would be a far greater evil than the disadvantage which may occasionally
arise from the loss light which such revelations might throw on the questions in dispute
hence all communications between them should be held privileged”.
1
S.J. Choudhary vs The State, 1985 Cri LJ 622 (India 1985).

9|Page
This concept is again echoed in English cases of Pringle v Pringle 2 and Mercer v State3.
Thus, marital privilege exists because it is essential to preserve amity and sustain full
confidence between a husband and a wife, therefore deeming the relationship of marriage as
a sacrosanct institution and to some extent placing it above the concerns of justice.

Under Section 122 of the Evidence Act, a married person shall not be:

1) Compelled to disclose any communication made to him during marriage by any person to
whom he is married; and

2) Permitted to disclose any such communication, except:

a)when the person who made it or his representative in interest consents or

b) in suits between married persons, or

c) in proceedings in which one married person is prosecuted for any crime committed
against the other.

For the purpose of invoking the privilege under Section 122, the following conditions have to
be satisfied:

1) The communication must have been made during the continuance of the marriage: Any
communication made either prior to the marriage or after the termination of marriage is not
protected from disclosure. The privilege continues even after the marriage has been dissolved
by death or divorce.

In Nagaraj v. State of Karnataka4, where an accused is alleged to have made an extra judicial
confession to his wife about his raping and killing of her sister, the evidence of his wife was
held to be inadmissible. A wife was not allowed to tell what her husband told her about a
murder with which he was charged.

In M.C. Verghese v. T.J. Pannan5, it has been held that in interpreting the rule in Section 122,
it is not material that the relation of husband and wife should be subsisting at the time when

2
Pringle v. Pringle, 333 So. 3d 757 (Fla. Dist. Ct. App. 2022).
3
Hoffman Chevrolet, Inc. v. Washington County Nat'l Sav. Bank, 206 A.2d 797 (Md. 1965).
4
H. Govindaraju v. State of Karnataka, 1996 Crim. L.J. 2901 (Kar.).
5
M.C. Verghese v. T.J. Ponnan, A.I.R. 1970 S.C. 1876.

10 | P a g e
the evidence is required to bc given so where a woman has been divorced and had married
another husband was offered as a witness against her former husband to prove a
communication made during the covertures, it was held that she was incompetent to do so. It
has been further held that the word 'communication' does not extend to correspondence,
which passed between them, because when a letter is produced in court and its contents
proved, it is the letter that disclosed and not a spouse.

2) Only communications are protected from disclosure but not the acts or conduct: The ban
of the Section 122 is confined to communications only. A wife can testify to the deeds of her
husband of which she was the eyewitness. The conduct of a spouse is not protected and not
privileged by Section 122. For example the husband took the knife from his house and went
to his opponent's house. The wife can depose the same fact before the court. The taking of a
knife and entering into the opponent's house comes under 'conduct'. It is not a
communication. Such a conduct relating to criminality is not protected under Section 122. If
the husband "I will kill my opponent". The wife shall not depose said to his wife these words
before the court. Because this is a communication made by the husband to his wife and is
protected under Section 122.

In Ram Bharosey vs. State of UP6,The Supreme Court observed “The statement of the
accused to his wife that he would give her jewels and he had gone to the house of the
deceased to get them is inadmissible under Section122. But the wife's statement that the
accused was seen in the early hours, while it was dark, coming down the roof of his house
and that he went to the Bhusa Kothri and came out again and had a bath and put on the dhoti
again is not inadmissible under Section 122 as it has reference to acts and conducts of the
accused and not to any communication by him to his wife".

3) The privilege operates only against the husband or wife but not against third person:-
Neither the husband nor the wife can be compelled to give evidence in regard to matrimonial
communications between them, nor can any one of them be permitted to disclose them. But
nothing prevents a third person or a stranger from giving evidence of such communications
between the husband and wife matrimonial communications can be proved by evidence of
the over- hearers. Confession to wife in the presence of others was allowed to be proved by
others.

6
Ram Bharosey v. State of Uttar Pradesh, A.I.R. 1954 S.C. 704.

11 | P a g e
 In Rumping Director of Public Prosecutions7, the accused of a murder, wrote a letter to his
wife after killing a person, confessing that he murdered his colleague under certain
circumstances. He gave that letter to his friend, and requested him to hand over the letter to
his wife. The friend gave that letter to the police; the trial court admitted that letter. The Privy
Council upheld the decision of the trial court and also held that the letter written by the
accused addressing to his wife would not be protected under the 'privileged communications'
during the marriage.

4) The privilege does not end after the termination of marriage: The privilege continues even
after the termination of marriage.

S.J. Choudhary v State8, when a communication was between the accused and his wife after
the wife obtained a divorce decree, it was held that the marriage cannot be treated as
subsisting after the divorce decree and hence the communication was not made during
marriage so as to come within the protection under Section 122. A communication made to a
woman before marriage would not bé protected. But when a communication is made by one
of the spouses to the other during the communication of marriage, the privilege continue
seven after the marriage has been dissolved by death or divorce.

Other Exceptions

1) With the express consent of the person who made the communication or
his/herrepresentative. If the spouse, who made the communication to the other party, gives
his consent,the other spouse may be permitted to depose about he communication made
during the marriage.

In Nawab Howladar v. Emperor9, where there is no 'representative interest who can consent
under the Section 122, to the disclosive of communications made by adeceased husband to his wife during
marriage, the wife should not be permitted even if willing, to disclose such communications.
The widow of a deceased husband is not his 'representative in interest' for the purpose of
giving such consent.

2) Crime committed against another:

7
Director of Public Prosecutions 1962 3 All E.R. 256.
8 S.J. Choudhary v State 1985 Crim. L.J. 622 (Del.).
9 Nawab Howladar v. Emperor ILR 1913 40 Cal. 891.

12 | P a g e
Matrimonial Communications cease to be privileged and not protected in suits between the
husband and wife or in criminal prosecutions in which one spouse is prosecuted for a crime
committed against the other spouse. The words "proceeding in which one married person is
prosecuted for crime committed against the other" in Section 122 refers to such crimes as
assault or bodily injuries, wrongful confinement etc. by one of the spouses against the other;
there maybe also other forms of crime but the gist of this exception is that it must be crime
committed by one married person against the other; the question whether unlicensed pistol
was in the possession of the husband or the wife cannot be said to involve any crime
committed by one against the other; but the wife cannot be compelled to disclose what she
was told by her husband(accused) in her conversation with him.

In Fatima v. Emperor10, it has been held that an offence against a son is not an offence
against the husband and a confession by a woman to her husband that she murdered the son
is not admissible. Communication during Live in Relation

In 1995, it was held in the case of United States v. Acker11, that marital privilege only applies
to people who are legally married and not to people who are cohabiting without a legal
marriage. But now after twenty-three years, with both the Indian as well as the English courts
numerous rights being conferred upon people who are in a live-in relationship, this privilege
could be extended to those relationships. In live-in relationships, the level of intimacy is at
the level of that of a marital relationship, but the only thing lacking is a valid marriage in the
eyes of law. Indian courts of law have recognised live-in relationship to be a valid marriage if
the couple has stayed together for a long period of time, and the burden of proof is on the
person claiming it to be an invalid marriage [Badri Prasad v Director Of Consolidation &
Ors12, The courts have also granted women who are in a live-in relationship, the right to
maintenance if they are deserted by the man[ D Velusamy Vs D Patchaiammal Criminal
Appeal Nos. 2028-2029 Of 2010]. They also now consider the child born out of a live in
relationship as a legitimate child [Tulsa V. Durghatiya 13]. The courts have also started
interpreting right to live together in the ambit of right to life [S.Khushboo Vs. Kanniammal
&Anr.14]. In the most recent judgement the apex court has given 5 categories of live in

10
Fatima v. Emperor 15 Cr. L.J. 613 (1950).
11
United States v. Doe, 52 F.3d 509, 514 (D.C. Cir. 1995).
12
Badri Prasad v Director Of Consolidation & Ors 1978 S.C.C. (3) 527 (India).
13
Tulsa V. Durghatiya 2008 4 S.C.C. 520.
14
S.Khushboo Vs. Kanniammal &Anr 2010 5 S.C.C. 600.

13 | P a g e
relationships which can be considered by the court[ Indra Sarma V. V.K.V. Sarma, Crl. App.
No. 2009 Of 2013].

Section 123- State privileges (S.123)

This section deals with the protection of matrimonial communications. These

communications between husband and wife are strictly protected from disclosure.
Matrimonial communications refer to the communication between a man and his wife. Either
party is disallowed from divulging any such information to any 3rd party made within the
confines of a valid and existing marriage. A person cannot be compelled to disclose any
communication made to him or her during marriage by any person to whom he or she is or
has been married; nor will such communication be permitted to be disclosed. Thus, Sec. 122
prevents communications between a man and his wife from being disclosed. This section
rests on the obvious ground that the admission of such testimony would have a powerful
tendency to disturb the peace of families, to promote domestic broils, and to weaken, if not to
destroy, that feeling of mutual confidence which is the most endearing solace of married life.
It's vital to remember that the protection only applies to issues that were discussed 'during the
marriage.' Even after the dissolution of the marriage5 or when one spouse dies, such
communication (during the term of the marriage) is protected. Those made prior to marriage
or after its dissolution, however, are not protected (M.C. Verghese v T.J.Ponnam).
Furthermore, the privilege only applies to communication, not to being a witness. According
to the clause, a spouse is not required to disclose such communication and is not even
entitled to do so if he or she voluntarily does so. In Ram Bharose v. State of UP15, the
accused was on his trial for murdering a neighbour for the purpose of robbing some
ornaments and then to present them to his wife. While presenting them to his wife he said
that he had gone to the middle house (where the deceased lived), to get them. His wife then
told the court that she saw one early morning her husband coming down the roof. He then
went inside the fodder store and had a bath. He put back the same clothes and came to her to
present the things. Held that what the husband said to his wife was not admissible, but she
could testify as to his conduct.

15
Ram Bharose v. State of UP A.I.R. 1954 S.C. 704.

14 | P a g e
In the Indian setting, Section 123 of the Evidence Act concedes the public policy privilege
with regards to the undertakings of the State. It is imperative to detail to bare text of the
section before abiding further. Section 123 provides Evidence as to affairs of State –

“ No one shall be permitted to give any evidence derived from unpublished official records
relating to any affairs of State, except with the permission of the officer at the head of the
department concerned, who shall give or withhold such permission as he thinks fit”

Section 123 of the Evidence Act states that in order to claim privilege there must be certain
prerequisite conditions, namely

i) The document must be an unpublished official record;

ii) It should relate to the affairs of the state, and

iii) It can be admitted in evidence with the permission of the head of the department
concerned, who shall give or withhold such permission.

The object of the Section 123 is "salus populi estsuprenia lex" 1.e. public welfare is the
highest law. This privilege is granted to the state to protect the public interest. Under
Sections 123 and124, the state was empowered to suppress any information from disclosing,
Besides these two sections, the then British Government enacted the Official Secrets Act,
1923. These provisions are for the suppression of the people's voice and rights and to put
them in darkness. The constitution provided freedom of speech including freedom of
information in Article 19(1) (a).After a long struggle the Indian Parliament has enacted The
Freedom of Information Act, 2002.However, Sections 123 and 124 are not yet repealed nor
amended so far. Unpublished Official Records Section 123 applies to the unpublished official
records only. If the contents of a document have been published there is no question of
claiming privilege in respect of their documents.

The word 'published' in Section 123 does not mean only those documents or papers which
areprinted for general publication. Even if a secret document or a part of it is revealed, the
document will lose the sanctity as unpublished records because there cannot be any guarantee
as to whom and in what contingency the other parts may also be made known.

15 | P a g e
For example, until the Governor signs a G.O. entire correspondence and documents relating
to the G.O. are unpublished official records. When that G.O. is signed by the Governor, it
becomes published and also becomes public. In State of UP v. Raj Narain16, it has been held
that the blue-book which was marked as secret document and parts of which has already been
disclosed in the Lok Sabha debates and in writ proceedings before the High Court could not
be held to be an unpublished record within the meaning of Section 123.Relating to any affairs
of State-

The privilege under Section 123 extends only to unpublished of undisclosed official records
or documents relating to the affairs of the State. The term 'Affairs of State' has not been
defined in the Evidence Act. The term 'Affairs of State' is of very wide amplitude and it will
cover every business activity of the State in day-to-day routine administrative transactions.
They also include the highly confidential matters pertaining to defence, foreign affairs etc.
The State activities now covered many other fields of trade, commerce, etc. All such state
activities came within the purview of 'Affairs of State. The term State includes the Central
and State Governments, Governmental organizations etc. within the meaning of Article 12 of
the Constitution of India. Affairs of State a very wide expression. Every communication
which proceeds from one officer of the State to another is not necessarily relating to the
affairs of State. The expression ‘Affairs of State’ may be defined as matters of public nature
in which the State is concerned and the disclosure of which will be prejudicial to the public
interest or injurious to national defence or detrimental to good diplomatic relations.

In Iqbal Ahmed v. State of Bhopal17, it has been held that the unpublished records of the
affairs of State may include:-

i) Documents that pass between two States;

ii) Documents between the State and its non-subjects;

iii) Documents between the State and subjects of another State;

iv) Documents between subjects of more than one State;

v) Documents that pass between Head of Departments or between Minister of States.

16
State of UP v. Raj Narain AIR 1975 SC 86.
17
Iqbal Ahmed v. State of Bhopal AIR 1954 Bhopal.

16 | P a g e
In State of Punjab v. Sodhi Sukhdeo Singh18, it has been held that the following provide
working rules of guidance for the court in a matter of deciding the question of privilege in
regard to unpublished documents pertaining to matters of State:

a) Records relating to affairs of state mean documents of State whose production would
endanger the public interest;

b) Documents pertaining to public security, defence and foreign relations

c) Unpublished documents relating to trading commercial or contractual activities of the

State or not, ordinarily, to be considered as documents relating to affairs of State, but in
special circumstances they may partake of that character,

d) In case of documents mentioned in (C) it is a question of fact in case whether they relate to
affairs of State or not in the sense that if they are disclosed, public interest would suffer.

The following documents are some of the examples showing the unpublished documents as
to affairs of state:

i) the decision of cabinet;

ii) character and confidential reports of the Government employees:

iii)communication between the officers and departments for granting the mining lease

iv) security rules, etc. giving protection to the highest designatories, such as the President, the
Prime Minister, the Governors, the Ministers etc.

v) communications between the officers, heads of the departments, ministers pertaining to

foreign policies, defence, etc.

vi) the advice given by the Council of Ministers to the President or to the Governor, as the
case may be;

vii) the reports made by one public officer to another in the discharge of his official duties
and notes and ministers made by respective officers of the Government on relevant files;
18
State of Punjab v. Sodhi Sukhdeo Singh, AIR 1961 SC 433.

17 | P a g e
viii) all confidential files of the departments,

ix) question papers of all public examinations (from preparing typing. printing, despatch to
the examination centres etc. until the time and date of the examination of each of such
subject.)

x) the statements of concerned parties and or witnesses in a secret and confidential

investigation by the CID.

In S.P. Gupta & Others v. President of India and Others19, where non appointment of an
Additional Judge for a further term or transfer of a High Court Judge is the correspondence
exchanged between the Law Minister, the Chief Justice of the High Court, the State
Government and the Chief Justice of India and the relevant noting made by them, could not
be said injurious to public interest and held that the Government cannot claim privilege in
respect of such documents under Section 123 of the Evidence Act.

Exception to the privilege relating to the State Documents

Second half of the Section itself gives the exception that the officer as the head of the
department concerned may give the permission for the production of the document, if he
thinks fit, The privilege should be claimed generally by the Minister-in-incharge who is the
political head of the department concerned, if not, the secretary of the department should
claim the privilege.

In State v. Jagannath Jena20, it has been held that the Inspector General of Police cannot be
an officer at the Head of the Department for the purpose of Section 123 of the Evidence Act.

Who is to decide State Privilege (Power of the Court to Decide thePrivilege State Document)

Section 123 deals with a prohibition and the prohibition extend to everyone, provided the
evidence sought to be given relates to affairs of State derived from unpublished official
records.

Such matters can only be disclosed with the permission of the head of the department and the
officer has absolute discretion in either giving or with holding such permission, But that is

19
S.P. Gupta & Others v. President of India and Others AIR 1982 SC 149.
20
State v. Jagannath Jena ILR 1973 Cut 427.

18 | P a g e
not so. Section 162 of the Evidence Act read with the Section 123 makes it clear that the
court is the final authority.

In State of Punjab v Sodhi Sukhdev Singh21, it has been held that "Reading Sections 123 and
162 together the court cannot hold an enquiry into the possible injury to public interest which
may result from the disclosure of the document in question. That is a matter for the authority
concerned to decide but the court is competent and indeed is bound to hold a preliminary
enquiry and determine the validity of the objections to its production and the necessarily
involve an enquiry into the question as to whether the evidence relates to an affairs of State
under Section 123 or not. In this country the court has to determine the character or class of
the documents, If it comes to the conclusion that the document does not relate to affairs of
State, then it should reject the claim for privilege and direct its production. If it comes to the
conclusion that the document relates to the affairs of State, it should leave it to the head of
the department to decide whether he should permit its production or not."

In S.P. Gupta v. Union of India22, the Supreme Court has overruled the decision in State of
Punjab v. Sodhi Sukhdev Singh23, and recognised the power of the court to inspect the
documents although they are considered to be a classified document, otherwise the very
purpose of holding preliminary inquiry to know whether the document relates to the affairs of
the State or not, becomes a force.

For this purpose it is necessary to inspect the document.

In State of U.P. v. Raj Narain24, the court has held that there is residual power in court to
decide whether the disclosure of a document is in the interest of public and for the purpose, if
necessary to inspect the document and that the statement of head of the department that the
disclosure would injure public interest is not final. The court further held: "It is now the well
settled practice in our country that an objection is raised by an affidavit affirmed by the head
of the department. The court may also require a Minister to affirm an affidavit. If the

court is satisfied with the affidavit evidence that the document should be protected in public
interest from production, the matter ends there."

21
State of Punjab v Sodhi Sukhdev Singh, AIR 1961 SC 493.
22
S.P. Gupta v. Union of India, AIR 1982 SC 149.
23
Ibid.
24
Ibid.

19 | P a g e
RTI and Section 123.

A RTI Act is guaranteed to every citizen as a fundamental right, previously the citizen by
way of section 74 to 78 of Indian evidence act 1872, gives right to avail contents of public
documents and further by way of section 76 of Indian evidence act provides that the public
documents shall be provided by the public officials to the any persons who has the right to
scrutinize them.

However, section 123 of Indian evidence act 1872 put a restriction of official information.

Section 124 of Indian evidence act provides that no disclosure per tanning to official
confidence.

sections 123 and 124 generally referred to as dealing with official communications. Section
123 deals with one of the important areas such as state privileged documents and official
communications. Section 123 relates to affairs of state. This section deals with a probation
and the prohibition extends to everyone provided the evidence ought to be given relates to
affairs of state derived from unpublished official records. when the state is required by the
court to produce certain documents the government claims a privilege and refuses to place
those documents before the court on the ground that this documents since they relate to the
affairs of the state disclosure of the content of such documents in the court may endanger
public interest. So by virtue of this privilege the government very often refuses to produce
documents required by the court to be produced before it. Sec. 123 protects unpublished State
records from being disclosed. This section is based on the maxim "Salus populiest supreme
lex", i.e., regard for public welfare is the highest law. The general rule is that the witness is
bound to tell the whole truth and to produce any document in his possession or power,
relevant to the matter in issue. However, in certain cases, the production of official document
may be injurious to larger public interest, as for instance it may harm State's security, good
diplomatic relations, etc. In such cases the State has been given the privilege not to produce
certain documents which relate to "affairs of the State. The privilege under Sec. 123 should
be claimed either by the Minister, or his Secretary, or by Head of the Department. The usual
method of claiming the privilege is by filing an affidavit. The affidavit has to state that the
document in question has been carefully read and examined and the Department is satisfied
that the disclosure would not be in public interest. After looking at the nature of the

20 | P a g e
document, the grounds for the claim of the privilege, and the totality of the circumstances,
the court decides the question of ordering the production or not.)

Section 162 outsets that a witness summons to produce document shall produce the same if it
is in his possession. The Government now have no privilege to hold the information of any
kind but to disclose the same below the RTI Act but under section 8 the information is
exempted when it is concerned with integrity and dignity of country, trade secret, forbidden
by court order and foreign secret,

The dissenting opinion of Justice Subbarao and the majority in SP Gupta has now found a
legal backing in the form of RTI Act. This is visible from the 2016 president rule case in
Uttrakhand The court mentioned the importance of public disclosure for the working of an
open democratic society and the trend for more disclosure was emphasized by the court.

RTI Act has revolutionarily changed the purported law of privilege where the Government
used to hold data as mystery as matter of standard and uncovered particularly. Since RTI Act
2005,the rule is disclosure and special case is withholding it. RTI has abrogated the Official
Secrets Act, 1923 and every single other enactment which repudiate or strife the RTI Act.
The arrangements of benefit in Indian Evidence Act need to offer route to the revelation now
according to Section 22 of Right to Information Act, 2005. On the off chance that the
archives relate to issues of state, they can't be withheld by state as special records under
Evidence Act, however needs to unveil under RTI Act, subject just to Section 8 and 9. The
privilege against disclosure under Evidence Act is hence eclipsed by Right to Information
Act. Professional communications 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.
The position of law in India on privileged professional communications between clients and
legal advisors are dealt under sections 126 to 129 of the Indian Evidence Act, 1872. Section
126of the Act provides the scope of privilege attached to professional communications in a
client attorney setting. It restricts attorneys from disclosing any communications exchanged

21 | P a g e
with the client and stating the contents or conditions of documents in possession of the legal
advisor in course of and for the purpose of the latter’s employment with the client.

Section 126

According to Section 126, No barrister, attorney, pleader or vakil shall at any time be
permitted, unless with his client’s express consent, to disclose any communication made to
him in the course and for the purpose of his employment as such barrister, pleader, attorney
or vakil, by or on behalf of his client, or to state the contents or condition of any document
with which he has become acquainted in the course and for the purpose of his professional
employment, or to disclose any advice given by him to his client in the course and for the
purpose of such employment:

Provided that nothing in this section shall protect from disclosure —

(1) Any such communication made in furtherance of any illegal purpose;

(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his

employment as such, showing that any crime or fraud has been committed since the

commencement of his employment.

It is immaterial whether the attention of such barrister, pleader, attorney or vakil was or was
not directed to such fact by or on behalf of his client.

Explanation: The obligation stated in this section continues after the employment has ceased.

22 | P a g e
 Illustrations:

(a) A, a client, says to B, an attorney—“I have committed forgery, and I wish you to defend me”.

As the defence of a man known to be guilty is not a criminal purpose, this communication is
protected from disclosure.

(b) A, a client, says to B, an attorney—“I wish to obtain possession of property by the use of
a forged deed on which I request you to sue”. This communication, being made in
furtherance of a criminal purpose, is not protected from disclosure.

(c) A, being charged with embezzlement, retains B, an attorney, to defend him. In the course
of the proceedings, B observes that an entry has been made in A’s account-book, charging A
with the sum said to have been embezzled, which entry was not in the book at the
commencement of his employment. This being a fact observed by B in the course of his
employment, showing that a fraud has been committed since the commencement of the
proceedings, it is not protected from disclosure.

A Lawyer-Client relationship is quite clearly accepted as a fiduciary relationship. Fiduciary

relationship in law is ordinarily a confidential relationship; one which is founded on the trust
and confidence reposed by one person in the integrity and fidelity of the other and likewise it
precludes the idea of profit or advantage resulting from dealings by a person on whom the
fiduciary obligation is reposed.

At the time of enactment of the Evidence Act, 1872, there were different classes of legal
practitioners as mentioned in Section 126 namely barristers, attorneys, pleaders, vakils.
Besides them there were Mukhtegrs salaried legal advisers, law officers and these
professionals were also

come under the purview of Section 126. After enactment of the Advocates Act, 1961, now
there is only one class of the legal practitioners i.e. the Advocates.

Section 126 has been enacted for the protection of the clients, but not for the legal
practitioners. The basis for the protection is founded on the impossibility of conducting the
legal business without the professional assistance and on the necessity in order to render that
assistance effectual, of securing full and unreserved intercourse between the legal

23 | P a g e
practitioners and their clients. A client would be inclined to make free and frank disclosure of
every information to his advocate only when there is a guarantee to him that what all he
passes on to the advocate would not be divulged. Section 126 is designed to lend that kind of
guarantee by prohibiting all such communications from being given in evidence.

Accepting that the lawyer customer relationship is entrenched, is each correspondence

ensured? That likewise depends. The essential lawyer customer benefit ensures customer
correspondences with the lawyer. It likewise reaches out to responsive interchanges from the
legal counsellor to the customer. In any case, the correspondence need not be as
unmistakable as an oral or composed activity. In actuality, the smallest activity or inaction,
for example, an agreed gesture or complete quietness may comprise a correspondence. For
instance, assume that smith is talking with Jones, her lawyer, about an issue including an
ongoing offer of stock that is under scrutiny by the SEC. Jones asks Smith whether she got
any secret, non-public data before the offer of her stock, and Smith quietly gestures her head
in the agreed. Albeit no words were traded, this correspondence among Smith and her lawyer
is unmistakably secured by the benefit.

A customer can't shield certain realities from divulgence basically by conveying them to her
legal advisor. In the event that data might be accumulated from another source other than the
advantaged correspondence, at that point the basic data itself isn't privileged. Stated in an
unexpected way, the lawyer customer benefit "ensures interchanges made to acquire
legitimate counsel; it doesn't secure the data communicated". Clients and lawyers the same
must remember this significant reality: simply passing on something to a lawyer won't keep
the basic realities from constrained revelation, on the off chance that they can be found from
a non special source. In Indian Evidence Act, 1872 deals with privilege communication
between lawyer and client.

Section 126 of the Act gives the extent of benefit joined to professional communication in a
lawyer customer relationship. It limits lawyers from revealing any interchanges traded with
the customer and expressing the substance or states of records possessing the legitimate
guide in course of and for the latter's employment with the customer.

This also gives certain grounds on which such benefit will stand denied, being in
encouragement of any unlawful reason or realities going to the familiarity with the lawyer
indicating that either wrongdoing or misrepresentation has been submitted since the

24 | P a g e
beginning of the lawyer's work on the concerned issue. It is irrelevant whether the
consideration of such lawyer, [pleader], lawyer or vakil was or was not coordinated to such
actuality by or for his customer.

All communications connected with the case of the client whether he expressly mentions
them as confidential or not privileged and the professional legal advisor is prohibited from
disclosing such communications.

In Kameswara Rao v. Satyanarayana25, it was held that Section 126 ofthe Evidence Act is
designed to abort the attempt to intrude into privacy of the close preserve of the fund of
information conveyed by the client closeted in confidence.

The privilege applies to all communications oral or documentary made in course of and for
the purpose of employment as legal adviser. The letters written by the client to the advocate
or by the advocate to the client are protected under Section 126. However, a letter written by
accused/party to another accused/party do not come within the purview of the Section 126,
and therefore are not protected. Not only the communications made by the client to the legal
practitioner, even things observed by an advocate are protected.

In Superintendent and Remembrancer of Legal Affairs, West Bengal V. Satyen Bhowmick26,

it has been held that there was absolutely no impropriety on the part of the Magistrate in not
taking action against the defence lawyer for his refusal to show his register because the
lawyer had rightly claimed privilege under Section 126 of the Evidence Act as the register
contained instructions given by the client which being privileged could not be disclosed to
the Court.

Further, a professional legal advisor is also prohibited from disclosing the nature of legal
advicewhich he has given to his client in the course of his employment.

The words 'at any time' in Section 126 indicate that the legal adviser is not to disclose the
communication even when the relation is ended over even after the client's death. According
to explanation appended to Section 126, the privilege given under Section 126 continues
even after cessation of the employment. It means if a communication document is once

25
Kameswara Rao v. Satyanarayana,1984(2) An.W.R. 138
26
West Bengal V. Satyen Bhowmick, AIR 1981 SC 917

25 | P a g e
privileged it is always privileged. The fact that it was inquired about in another case will not
destroy the privilege.

The word 'disclose' in Section 126 shows that the privileged communication must be of a
confidential or private nature. The word 'disclosure' implies that which was not already made
to others.

The words 'any communication' in Section 126 does not mean every communication made by
a person to his legal adviser that is privileged from disclosure. The privilege extends only to
communications made to him confidentially, and with a view to obtain professional advice.

The phrase "in the course of his employment and for the purpose of his employment"
indicates that the privilege given to a legal adviser under Section 126 is of a very limited
character. Such a protection can be afforded only, if such communications are made to the
advocate

(i) in the course of his employment and (ii) for the purpose of his employment. The privilege
applies to all communications oral or documentary in the course of or for the purpose of the
employment as legal advisor. Consultation as a friend is not sufficient. The

privilege attaches only if the opinion was given professionally, Even if the services were

rendered without fee, still the communications would be privileged. Whether an opinion was
given professionally or in a friendly capacity or otherwise is a matter of fact to be inferred
from the circumstances, such as the legal habits of life and other cognate matters. The
privilege does not apply to communications made before the existence of the relationship or
after it has ceased.

The protection of the Section 126 will not extend to any communications made in furtherance
of illegal purpose in view of proviso I, or to any fact showing that a crime or fraud has been
committed since the commencement of the employment, in view of proviso 2. If a client and
his lawyer cooperate in effecting a crime the lawyer ceases to be a counsellor and becomes a
criminal along with his client and there would be no privilege. The existence of an illegal
purpose would prevent any privilege attaching to any communication. Illustration (b)
exemplifies this.

26 | P a g e
Section 127-

As per Section 127 of the Evidence Act, "The provisions of Section 126 shall apply to
interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils". The
privilege attached to the professional communications between a lawyer and his client is
further fortified by providing Section 127 of the Evidence Act as per which the ban against
disclosure is extended to clerks and servants of the lawyer. The clerk of a lawyer, in the
professional sphere, has to maintain confidence regarding matters conveyed to him, if it
relates to communication between the counsel and the client. If a notice, or a letter or even a
pleading is dictated to the clerk by a lawyer, it does not, in practical sense go beyond the
lawyer's professional range. The fact that the clerk, as a different human being, comes to
know of the contents of the notice cannot make it publication to a third person.

In Sukhdeo Vithal v. Prabhakar Sukhdeo27, it has been accepted the contention that the
advocate dictating to his clerk or typist any matter which the typist or clerk transcribes in the
discharge of his duties does not make publication of that matter.

As Section 127 is an extension or corollary to Section 126, the dictation given by a lawyer to
his clerk and transcription made by him of a per se libellous matter cannot amount to
publication confidential secretary of a lawyer is included in the privilege.

Section -128. Privilege not waived by volunteering evidence.—

If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be
deemed to have consented thereby to such disclosure as is mentioned in section 126; and if
any party to a suit or proceeding calls any such barrister, 1[pleader], attorney or vakil as a
witness, he shall be deemed to have consented to such disclosure only if he questions such
barrister, attorney or vakil on matters which, but for such question, he would not be at liberty
to disclose.—If any party to a suit gives evidence therein at his own instance or otherwise, he
shall not be deemed to have consented thereby to such disclosure as is mentioned in section
126; and if any party to a suit or proceeding calls any such barrister, 1[pleader], attorney or
vakil as a witness, he shall be deemed to have consented to such disclosure only if he
questions such barrister, attorney or vakil on matters which, but for such question, he would
not be at liberty to disclose."

27
Sukhdeo Vithal v. Prabhakar Sukhdeo, 1974 Cri.LJ 1435.

27 | P a g e
CHAPTER - 3
JUDICIAL ANALYSIS

Bhalchandra Namdeo Shinde v. The State of Maharashtra28

The wife was called in to give testimony against her husband who was being tried for
allegedly committing a murder. She was allowed to testify regarding his conduct and actions
but not the communications between them.

However, this privilege is not available when there is a dispute between the married couples
or when either of them is being prosecuted for a crime committed against the other. If the
party who made the communication gives consent to its disclosure by waiving this privilege,
then such evidence can be testified in a court of law.

Debasis Sahu v. Nabeen Chandra Sahu29

the Court held that only the Income Tax Commissioner can determine whether the
production of certain documents relating to income-tax returns would be protected under
state privilege or not and not even the court can answer this question. The Supreme Court has
further clarified that when the court requests for the production of service records of a public
servant doubted for malafide activities, the state cannot claim such privileges.
The Supreme Court has also opined that if non-disclosure of some information would have
larger negative impacts on public interest than its disclosure, then such communication may
not be protected under the state privileges.

Under Section 124 of the Evidence Act, 1872 the communications made to a public officer
may be held in official confidence because such official communications could hurt the
public interests if exposed. The Court has to decide whether such official communications
made to a public officer are in legitimate certainty or not. If it does not involve any issues of
the State or hurt the public interests, it might be taken as evidence. (In re Mantu bhai Mehta)

28
Bhalchandra Namdeo Shinde v. The State of Maharashtra, 2003(2)ALD(CRI)84.
29
Debasis Sahu v. Nabeen Chandra Sahu, AIR 2002 ORI 211.

28 | P a g e
Therefore, it is clear that only the Court has the power to decide whether any document can
be classified as an ‘unpublished document of state affairs’ depending upon the facts and
circumstances of every case.

P.R. Ramakrishnan vs Subbaramma Sastrigal And Anr30.

Court held that as per Section129 of the Evidence Act both the client as well as the attorney
isn’t under any obligation to convey the privileged communication to any third person. Only
such communication can be considered privileged if the communication happened during the
existence of the legal advisor-advisee relationship.

Karamjit Singh v. State

The Court held that one cannot ask for disclosure of any professional communication and
documents of attorney and client under the Right to Information.

Municipal Corporation of Greater Bombay v. Vijay Metal Works31

Court held that a salaried employee who advises his employer on all legal matters would get
the same protection as others, viz., Barrister, Attorney, Pleader or Vakil, under Section 126
and 129 of Indian Evidence Act 1872.

Duncan v. Cammell Laird and Co. Ltd32

It was held that in the event that such a circumstance emerges, the Court will undoubtedly
acknowledge the choice of the public officer with no inquiries. Further, the decision ruling
out of such documents is completely at the discretion of the Judge.
Thus, the Court must determine whether any documents fall under this category, depending
upon the facts and circumstances of every case. However, it is clear that only the Court has
the power to decide whether any document can be classified as an ‘unpublished document of
state affairs’.

Nagaraj v. State of Karnataka33,

Where an accused is alleged to have made an extra judicial confession to his wife about his
raping and killing of her sister, the evidence of his wife was held to be inadmissible. A wife
was not allowed to tell what her husband told her about a murder with which he was charged.

30
P.R. Ramakrishnan vs Subbaramma Sastrigal And Anr, AIR1988KER18.
31
Municipal Corporation of Greater Bombay v. Vijay Metal Works, AIR1982BOM6.
32
Duncan v. Cammell Laird and Co. Ltd, [1942] AC 624 (H.L.).
33
Nagaraj v. State of Karnataka, 1996 Cr.LJ. 2901 (Kar.).

29 | P a g e
M.C. Verghese v. T.J. Pannan34,
it has been held that in interpreting the rule in Section 122, it is not material that the relation
of husband and wife should be subsisting at the time when the evidence is required to be
given so where a woman has been divorced and had married another husband was offered as
a witness against her former husband to prove a communication made during the covertures,
it was held that she was incompetent to do so. It has been further held that the word
'communication' does not extend to correspondence, which passed between them, because
when a letter is produced in court and its contents proved, it is the letter that disclosed and
not a spouse.

Ram Bharosey vs. State of UP35,

The Supreme Court observed “The statement of the accused to his wife that he would give
her jewels and he had gone to the house of the deceased to get them is inadmissible under
Section122. But the wife's statement that the accused was seen in the early hours, while it
was dark, coming down the roof of his house and that he went to the Bhusa Kothri and came
out again and had a bath and put on the dhoti again is not inadmissible under Section 122 as
it has reference toacts and conducts of the accused and not to any communication by him to
his wife".

Rumping Director of Public Prosecutions36,

the accused of a murder, wrote a letter to his wife after killing a person, confessing that he
murdered his colleague under certain circumstances. He gave that letter to his friend, and
requested him to hand over the letter to his wife. The friend gave that letter to the police; the
trial court admitted that letter. The Privy Council upheld the decision of the trial court and
also held that the letter written by the accused addressing to his wife would not be protected
under the 'privileged communications' during the marriage.

34
M.C. Verghese v. T.J. Pannan, AIR 1970 SC 1876.
35
Ram Bharosey vs. State of UP, AIR 1954 SC 704.
36
Rumping Director of Public Prosecutions, 1962 (3) All ER 256.

30 | P a g e
CHAPTER - 4

PRIVILEGED COMMUNICATIONS BETWEEN COUNSEL ANDTHE

CORPORATE CLIENT

THE EXTENT OF THE CORPORATE ATTORNEY-CLIENT PRIVILEGE

The attorney-client privilege generally protects from disclosure the substance of confidential
communications made by the client in seeking the advice of legal counsel.' With the
exception of two extraordinary situations in which the privilege cannot be invoked,5 the
client's communications to his lawyer for the purpose of procuring legal advice are
privileged. The attorney's advice to the client, however, is open to disclosure.'

The modern theory of the attorney-client privilege is to promote freedom of consultation with
legal advisors by prohibiting disclosure absent the client's consent.' The application of the
privilege to the inanimate, artificial entity represented by the corporation creates difficulties
in determining
(1) which corporate agents have the power to invoke the privilege and
(2) the scope of the information for which are responsible agent may invoke or waive the
privilege.

IDENTIFICATION OF THE "CLIENT"FOR CORPORATE ATTORNEY-

CLIENTPRIVILEGE
Certain communications between a corporation and its attorney are privileged from
disclosure. This application of the attorney-client privilege to a corporation was not
recognized in the district court decision of Radiant Burners, Inc. v. American Gas Ass'n9
primarily because the court could not identify the nebulous "client" who could act on behalf
of the organization to invoke the privilege." Radiant Burners was
reversed by the Seventh Circuit Court of Appeals which held to the pre existing assumption
that the attorney-client privilege extends to corporations without defining the "client" who
could invoke the privilege on behalf of the entity. The importance of identifying and defining
the client in the corporate setting is crucial because the scope of the attorney-client privilege
is narrow. Any portion of a privileged communication which discloses factual information
furnished by a witness (one other than the client) is not protected. Even though it did not
acknowledge a corporate privilege,

31 | P a g e
the Radiant Burners trial court recognized the identification of the corporate alter ego
problem inherent in the application of the attorney client privilege to a corporation. Courts
have uniformly held that communications made to counsel by a member of top management
who guides and integrates the corporation's several operations, are privileged.
"The difficulty arises when, after the attorney-client relationship has been established by the
top management, communications aremade to counsel by subordinate corporate agents and
employees."'
In United States v. United Shoe Machinery Corp.,15 an early case dealing with the corporate
attorney-client privilege, the court granted a blanket extension of the privilege to all
employees of the corporation without delineating the extent of the privilege among various
classes of employees. This broad shield could theoretically prohibit the divulgence of any
corporate wrongdoing by making corporate counsel a repository for any questionable facts
related to company operations. “United Shoe's blanket extension has been replaced by a
variety of tests developed by the federal courts in subsequent decisions which restrict the
classes of persons within a corporation who can claim or waive the attorney-client privilege
on behalf of the entity.

COMMUNICATION WITH THE "RIGHT" LAWYER

The attorney-client privilege will not apply if the corporation has waived the privilege or if
the realities of the situation indicate that the lawyer was not acting as a legal adviser but
merely as a member of the business team. In either case, an individual officer, director or
employee, who may have made communications in reliance on the privilege, will be stripped
of its protection. An individual cannot claim an attorney-client privilege as an officer of a
corporation which has waived the privilege unless the attorney also represented the officer in
an individual capacity. The individual representation must be proven by evidence showing a
personal representation at the time of the communications subject to the attorney-client
privilege. For example, in United States v. Bartlett," an attorney, Parker, attended two of the
company's director meetings at which he was accused by Bartlett, the company president, of
attempting to take over the company. Litigation followed in which Bartlett was charged with
numerous violations of the securities, mail fraud and wire fraud statutes. In response to
Bartlett's claim that the attorney-client privilege attached to information communicated
between Bartlett andParker at these meetings, it was held that no attorney-client relationship
had existed at the time of the disclosure. In the court's view, at the time the alleged
confidential communications were made the relationship established was between the

32 | P a g e
attorney and the corporation. "The fact that Parker may have subsequently represented
Bartlett at some SEC hearings does not establish that Parker was serving as Bartlett’s
attorney at the time here critical. The fact that Bartlett accused Parker of conspiracy to take
over the company goes far to negate any attorney-client relationship then existing. "Because
of limitations on the individual application of the attorney client privilege, counsel for a
corporation has the burden of advising a corporate officer or employee of the problems
associated with confidential communications when the lawyer is representing only the
corporation."8 Since counsel may represent both the corporation and the officer, extensive
plans should be made at the earliest stage of any investigation or inquiry for dual
representation. In this manner, corporate officers, directors and employees will be able to
make a complete disclosure to counsel without loss of the privileged status of the
communication through corporate waiver." The status of an individual attorney within the
corporate enterprise can be as critical as that of an employee asserting the attorney-client
privilege. When the attorney acting as counsel for the corporate client has acquired a
substantial ownership or managerial interest in the corporation, communications between the
attorney and other members of the corporation are divested of the attorney-client privilege.
Federal Savings and Loan Insurance Corp. v. Fielding" indicated that the objectives of the
attorney-client privilege would be thwarted if the privilege was extended to communications
between members of the ownership or Management team: The relationship [between attorney
and client] must be one which supports the reason for the ethical and evidentiary sanctions,
that is, the public policy promoting full disclosure in the interests of obtaining sound and
well-considered legal advice. When the attorney and the client get in bed together as business
partners, their relationship is a business relationship,
not a professional one, and their confidences are business confidences unprotected by a
professional privilege. "Because of the importance of free disclosure in securing legal advice,
it is important for a corporation to offer adequate protection to employees if the corporation
waives the attorney-client privilege. Equally essential is a structuring of situations where the
attorney-client privilege may be asserted in a manner so that little doubt will arise as to the
relevance of communications in procuring legal advice.
WAIVER THROUGH DISCLOSURE OF PRIVILEGED INFORMATION
In United States v. Up johns the court held that an IRS summons to the chief legal officer of
a company was enforceable with respect to files, documents, and communications made to
counsel during the course of an internal investigation of the company. The results of the
investigation had been made known to the SEC on a Form 8-K report. The court found that

33 | P a g e
even if the communications had been privileged when made, the company's disclosure to the
SEC dealt a fatal blow to a subsequent assertion of the privilege: In the present case, the
Company made disclosures to the SEC with respect to the questionable payments in its 8-K
report .
Furthermore, the Company agreed to furnish the SEC with any additional data it might
request with respect to such payments copies of the SEC reports and related data was [sic]
also furnished to the IRS. Having disclosed some data with respect to questionable payments,
it now seeks to hold back other data relating to the same matter. Under the circumstances, the
company should be deemed to have waived the attorney-client privilege with respect to the
same matter, if indeed it ever existed.7 '
The Upjohn court's ruling is a proper application of the general rule concerning waivers of
the privilege through disclosure. A succinct formulation of this rule is that "[once ... [a] party
begins to disclose any confidential communication for a purpose outside the scope of the
privilege, the privilege is lost for all communications relating to the same matter."
The majority rule is that any disclosures before the SEC will effect a Permanent waiver of the
material disclosed."6 This rule applies even when the disclosure is voluntary." During the
SEC investigation of Penn Central, the agency deposed counsel for a group of prospective
underwriters of Penn Central commercial paper. The lawyer-witnesses contacted their
underwriter-clients and advised them that "it might be in [the clients'] best interest to waive
the attorney-client privilege concerning the discussions at a meeting" held in counsel's
office." The attorney then testified before the SEC and produced a memorandum prepared by
counsel.
As a consequence of both the delivery of a memorandum by one of the Lawyer-witnesses at
the time that the underwriting was still in the planning stage and the lawyer's testimony
before the SEC, the court found that the attorney-client privilege had been waived. Thus, in
subsequent litigation against another client of the lawyer's firm the memorandum referred to
above and certain other documents were subject to discovery-the privileged nature thereof
notwithstanding- simply because they had been voluntarily produced to the SEC in another
proceeding.
Diversified Indus., Inc. v. Meredith" further opened the door to future litigation in the SEC
disclosure area by applying a waiver more restrictive than the general rule. In the original
hearing the court determined that the privilege never attached to the communications at issue.
The court was "reluctant to hold that the voluntary surrender of privileged material to a
governmental agency in obedience to an agency subpoena constitutes a waiver of the

34 | P a g e
privilege for all purposes." Judge Heaney, in a separate opinion concluded that no waiver
occurred because "[a) waiver of the privilege must occur in the same proceeding in which it
is sought to be invoked."
Upon the subsequent en banc hearing, the court's decision was set-aside, resulting in a
finding that the attorney-client privilege did attach in litigation following compliance with a
government subpoena. As to the waiver issue the court said:
“We finally address the issue of whether diversified waived its attorney-client privilege with
respect to the privileged material by voluntarily surrendering it to the SEC pursuant to an
agency subpoena. As Diversified disclosed these documents in a separate and non-public
SEC investigation, we conclude that only a limited waiver of the privilege occurred. To hold
otherwise may have the effect of thwarting the developing procedure of corporations to
employ independent outside counsel to investigate and advise them in order to protect
stockholders, potential stockholders and customers. While nothing in this language would
indicate that the court established a more restricted waiver than that found in Penn Central,
other factors combine to dictate such a conclusion. The majority en banc opinion was written
by Judge Heaney, who had authored an opinion concurring in part and dissenting in part in
the lower court. His opinion, after declaring the existence of a "limited waiver," cites Bucks
County Bank and Trust Co. v. Storck," which held that a party who waived the privilege to
testify on a motion for the return of property illegally seized by law enforcement officers
could later revive the privilege to squelch testimony in a subsequent civil case. In addition,
Judge Heaney stated,
"I agree with the majority of the court ... that the privileges claimed by Diversified, if
originally extant, were not waived by the voluntary disclosures made by Diversified to the
Securities & Exchange Commission""
In addition to SEC disclosure, there are a number of other areas in which the attorney-client
privilege is considered to be waived through disclosure to a party extant to the attorney-client
relationship.
In Garfinkle v. Arcata National Corp. “the court held that documents developed by counsel
for the defendants in connection with the ultimate issuance of an acquisition opinion letter to
the plaintiffs were subject to discovery and not protected by the attorney-client privilege.
According to Garfinkle, disclosures will be considered to waive the privilege in acquisition
transactions where the opinion of counsel is directed to a no client party to the transaction.
Another type of opinion letter, that issued by counsel to accountants for use in connection
with the preparation of financial reports, is likely to develop into a fertile source of privilege

35 | P a g e
litigation. One authority despairingly reports, "I express no opinion as to what the law is
when applied to the house counsel's and outside counsel's letters requested by auditors for
financial reports and related matters. This is likely to be growing problem for all of us." In
our judgment an attorney's response to an auditor's inquiry may be exposed to discovery by
the court. There are three counts upon which these letters will fail to qualify as privileged
communications. First, accountants are arguably not identifiable as the "client." While it is
generally true that communications between the agent of the client and the attorney are
privileged, it is difficult to characterize an independent auditor as an agent of the client.
Secondly, the information requested is not "legal advice." Typically, the client does not
intend to take any action in recognition of the letter's contents and the auditor desires the
information merely to calculate its affect on the corporation's financial statement. This brings
us to the third reason these responses will fail to qualify for privilege protection. Attorneys'
responses are requested to assist the auditor in assessing the materiality of such information
for the benefit of readers of the financial statements. If the attorney's response reveals a
significant potential liability the client's financial statements may require a provision for the
contingent liability. If the attorney's response gives the client a clean bill of health or
discusses liabilities deemed too remote to deserve comment in the financial statements, these
facts will be indirectly disclosed by an unqualified opinion. Clearly, confidentiality should
not be contemplated with respect to these responses.
Another area which raises the disclosure question relates to the exchange of papers between
the attorney and client in the procuring of legal advice. In SEC v. Texas International
Airlines, Inc." the court considered whether the privilege covered "trust agreements,
disclosure statements, and press releases ... which were intended to be made public in their
final form, but prior to such publication were to be screened by respondent's attorneys."92
The court felt that a critical element of the inquiry was the role the client intended the
attorney to play. If the attorney's role was "minor or perfunctory or ... intended merely to
immunize the documents from production,""3 the SEC's argument that the required secrecy
was lacking would be correct and the privilege would be unavailable. If, however, the client
intended that the attorney play a major consultative role in determining the final contents of
the documents, then the mere fact that the final product was to be made public would not
strip the documents of the privilege. "When a client sends a draft to an attorney for review,
his intention is to make public only such information as appears appropriate for publication
in the context of and according to the lawyer's advice.

36 | P a g e
CHAPTER - 6

CONCLUSION
The intention behind giving such privilege to some communications is to protect the public.
Be it regarding the safeguarding of their marriage or preventing government information
from getting leaked.

In the absence of this Act, multiple classified information could have been easily leaked in
the name of trial and could have compromised the security of the country.

Also, letting a husband or a wife testify against the other would make people lose trust over
marital bonds and disrupt peace among families. It would start family broils, that could have
the capacity to destroy families.

This Indian Evidence Act, 1872, is a wholesome act and the laws regarding privilege
communications are up to par and have been legislated keeping public welfare in mind.
There are separate provisions for family issues, professional issues, and issues relating to the
state.

Privileged communication refers to confidential interactions between legally protected

people. One such communication is known to a third person; it loses its privilege. According
to the rule of privileged communication, a court of law cannot ask an individual in this
protected relationship to disclose any details of this communication.

The foundation of this principle is to guard the trust that a client re-poses in an attorney,
patient in a doctor and spouses in each other. The law also provides for punishment in case of
its violation. However, this privilege is not absolute as there are certain exceptions as well. It
may be violated in various cases that have either been specified in the statute itself or various
instances by the courts in Indian Jurisprudence.

37 | P a g e
 BIBLOGRAPHY

Books

1. Blackstone, William. Commentaries on the Laws of England. Oxford University Press, 1765-1769.

2. Wigmore, John H. Evidence in Trials at Common Law. Revised by James H. Chadbourn, Little,
Brown and Company, 1974.

Articles

1. Brazier, M. "Patient Confidentiality in Legal Contexts." Journal of Medical Ethics, vol. 18, no. 1,
1992, pp. 27-33.

2. Imwinkelried, Edward J. "The New Wigmore: A Treatise on Evidence - Evidentiary Privileges."

Review of Law and Social Change, vol. 21, no. 3, 1995, pp. 523-530.

3. Rothstein, Paul. "The Expansion of Privileged Communications." Law and Contemporary Problems,
vol. 61, no. 4, 1998, pp. 77-86.

Legislation

1. The Code of Civil Procedure, 1908. Government of India.

2. The Indian Evidence Act, 1872. Government of India.

Reports

1. Law Commission of India. 185th Report on the Indian Evidence Act, 1872. Government of India,
2003.

2. American Bar Association. Report on Attorney-Client Privilege. ABA, 2008.

Websites

1. Cornell Law School Legal Information Institute. "Attorney-Client Privilege." LII / Legal
Information Institute. https://www.law.cornell.edu/wex/attorney-client_privilege

2. American Psychological Association. "Understanding Confidentiality." APA.

https://www.apa.org/ethics/confidentiality

38 | P a g e