INTRODUCTION
Imagine you’re facing a legal problem and need to confide in a professional. You’re asked to share every detail, no matter how sensitive or embarrassing, to build a strong case. Would you be able to do so honestly if you feared that that information could be used against you later? This is where the concept of privileged communication kicks in. Communications between certain persons, e.g., lawyer and client, clergyman and penitent, husband and wife, doctor and patient, which may not be divulged by testimony upon the trial of an action are referred to as privileged communications. These facts cannot be presented as evidence in court, though they are relevant. They are protected due to the confidential relationships that exist between the parties.
ANALYSIS OF ACTS PROVIDING FOR PRIVILEGED COMMUNICATION:
Under Bharatiya Sakshyam Adhiniyam, 2023 :
It codifies specific privileges that allow witnesses to withhold certain information while testifying in court. Such privileges are stated under sections 128, 129, 132, and 134 of the Bharatiya Sakshya Adhiniyam, 2023, where evidence is prohibited under those sections.
Section 128 of the Bharatiya Sakshya Adhiniyam
Section 128[1] protects private communications exchanged between spouses during their marriage. This privilege, based on the principle of preserving marital trust and harmony, remains intact even after the dissolution of marriage due to divorce or death.
This section contains two parts:
- The privilege of the witness
- The privilege of the spouse of the witness
Exceptions:
- Privilege is not extended in the proceedings where one of the spouses is prosecuted for any crime committed against the state.
- Privilege is inapplicable when either spouse faces prosecution for an offence against the State.
- A spouse obviously cannot be compelled to disclose any communication made to him/her. But if any communication through other means, for example, letters, emails, text messages etc., was made between the spouses, and when the same is produced before the court, it cannot be protected under this section.
- The Supreme Court, in the case of Vibhor Garg vs. Neha[2], held that secretly recorded conversations between spouses are admissible in matrimonial disputes. It clarified that spousal privilege under Section 122 of the Evidence Act[3] (now in sec 128 of BSA, 2023) does not apply when the parties are litigating against each other. The admissibility of evidence depends on the relevance and authenticity of the recording, not the method by which it was obtained. The Court also emphasized that the right to privacy under Article 21 of the Constitution[4] is not absolute and may be outweighed by the right to a fair trial.
Section 129: Evidence Relating To Affairs Of State
Section 129[5], prohibits the disclosure of unpublished official records relating to State affairs, unless permitted by the head of the concerned department. The object of this section is Salus populi est suprema lex (the welfare of the people is the supreme law). This privilege is granted to the state to protect the public interest. The prerequisite conditions to claim this privilege are that the document must be an unpublished official record, and it should relate to the affairs of the state.
Exceptions:
- The officer, as the head of the relevant department, has the “discretionary” authority to permit the production of the document if he deems it appropriate.
- Power of the court: The court can inspect the document in question and can decide whether the particular document can or cannot be produced openly. If the court comes to the opinion that the document in question causes injury to the public if it is produced, then it may give privilege not to produce.
Section 132: Professional Communication
It provides for the privilege of legal advisers. Advocates cannot disclose such communications received during the course of their professional duties, nor can they be compelled to do so, except with the client’s explicit consent. When the same advocate is engaged by two or more persons simultaneously, that advocate cannot disclose the communications without the consent of only one of them. The object of this privilege is to protect the interests of the client. This privilege continues even after the termination of their professional services.
The Supreme Court, in a suo motu case, In Re: Summoning Advocates Who Give Legal Opinion or Represent Parties During Investigation of Cases and Related Issues Vs Respondents[6][7], has observed that summoning of lawyers by the investigating agencies, like the Enforcement Directorate (ED), for giving a legal opinion to the client who was currently being investigated is a violation of this privilege and that this arbitrary summoning of lawyers by investigating agencies could be a grave affront to the sanctity of legal counsel.
Exceptions:
- This privilege is not extended to any communication made to commit fraud or a crime or in furtherance of any illegal purpose.
- If, in the course of professional duties, an advocate becomes aware of any fact indicating that a crime or fraud has been committed after the commencement of their engagement with a client, they are not bound by the obligation of confidentiality for that fact. The key consideration is the nature of the fact itself, and not whether the client disclosed it or attempted to conceal it.
SOME OTHER ANCILLARY PROVISIONS:
Conduct and Etiquette: Rule 7 of Bar Council of India[8]
It states that “An advocate shall not directly or indirectly commit a breach of the obligations imposed by Section 126 of the Indian Evidence Act[9].” This rule ethically binds advocates to uphold the confidentiality of client communications, mirroring the statutory protection under Section 126 of the Indian Evidence Act (now reflected in Sections 132–134 of the Bhartiya Sakshya Adhiniyam, 2023). A breach of this rule can trigger disciplinary proceedings by the Bar Council, including suspension or disbarment.
Section 227 of the Companies Act, 2013[10]
It protects confidential communications during corporate investigations. It states that legal advisers cannot be compelled to disclose privileged client communications, except for the client’s name and address. Similarly, bankers are not required to reveal information about customers who are not the subject of the inquiry. This provision upholds professional confidentiality and safeguards the privacy of third parties.
Section 31 of the Bharatiya Nyaya Sanhita (BNS), 2023[11]
This section deals with “communication made in good faith.” It states that no act is an offense if it is done with a benevolent intention, keeping in mind the best interests of that person, even without that person’s consent, and a communication made in good faith is not an offense because of any harm it may cause to the person to whom it is made. The purpose is to ensure that truthful and well-intentioned speech is not punished, even if it’s painful. For example, a doctor giving a patient a truthful diagnosis that causes distress is protected under this section.
CONCLUSION:
The concept of privileged communications is an important safeguard for confidentiality across personal, professional, and institutional relationships. While the provisions under acts like the Bharatiya Sakshya Adhiniyam, 2023, Companies Act, 2013 etc., provide structured protections, judicial interpretations continue to refine their scope, especially in sensitive domains like matrimonial disputes and legal counsel. With the world shifting towards the digital era, courts are now grappling with questions of admissibility, authenticity, and privacy in technologically mediated exchanges, prompting a re-examination of the traditional concept of privileged communications to ensure they remain relevant and effective in contemporary settings. The judiciary must continue to ensure that the delicate balance between Individual rights, the public interest and procedural fairness is not disturbed.
Author(s) Name: Vaishnavi Jella (PG College of Law, Osmania University, Hyderabad)
References:
[1] The Bharatiya Sakshyam Adhiniyam 2023, s 128
[2] Vibhor Garg v Neha, (2013) 2 SCC 526
[3] The Indian Evidence Act 1872, s 122
[4] Constitution of India 1950, art 21
[5] The Bharatiya Sakshyam Adhiniyam 2023, s 129
[6] In Re: Summoning Advocates Who Give Legal Opinion or Represent Parties During Investigation of Cases and Related Issues, suo moto, (2024) 2 SCC 260
[7] Apurva Vishwanath, ‘ED retreats after uproar, withdraws summons to top advocates’, The Indian Express (EPaper, 21st June 2025) https://indianexpress.com/article/india/ed-retreats-after-uproar-withdraws-summons-to-top-advocates-10079076/ accessed on 11 August 2025
[8] Bar Council of India Rules, Part VI, Chapter II, Rule 7
[9] The Indian Evidence Act 1872, s 126
[10] Companies Act 2013, s 227
[11] Bharatiya Nyaya Sanhita 2023, s 31
