| Introduction | jurisprudence |
| sections | section 122,123,126 |
| Relevant Case laws | M. C. Verghese vs T. J. Ponnan State of UP vs Raj narain |
| present problem | questions related |
| conclusion | decision as per our reasoning |
Privileged communication under the Indian Evidence Act is a critical aspect of the law that protects certain types of confidential communications from being disclosed in court. These protections are essential to ensure that individuals can communicate freely and honestly with certain trusted professionals and advisors without fear of their communications being used against them in legal proceedings.
There are certain conditions to fulfil for information or communication to be regarded as privileged communication in the court of law and those are:
- The communication has to happen only between the individuals who entered in a protected legal relationship and no third party should be involved,
- The communication between the individuals has to happen in a private setting,
- The information communicated between the individuals in a protected legal relationship should not be disclosed to a third party by any of them.
Privileged Communications are made in a private setting and are protected from disclosure to third parties. The rule of privileged communication exists because the privacy of confidential relationships is valued in the society. This is why they are not admissible as evidence.
Section 122 :
Communications During Marriage – Section 122:
Section 122 addresses the protection of communications made during marriage, stating that a married person cannot be compelled to disclose any communication received from their spouse or ex-spouse during the marriage. They are not allowed to reveal such communications without the consent of their spouse or ex-spouse, even if they are willing to do so.
Exception:
- In a suit between married persons.
- In proceedings where a married person is being prosecuted for a criminal act committed against the other.
- If the person who made the communication or their representative gives free consent.
section 123:
Evidence as to affairs of State: No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or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.
This section must be r/w Section 162. Section 162 provides that when a person has been summoned to produce a document he should produce it even if he has any objection to its production and the court shall decide the matter of his objection; the court may inspect the document, unless it refers to matters of state.
section 126:
Professional Communication
The main ingredients of Sec. 126 are:
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 by or on behalf of his client, or any advise given by him to his client in the course and for the purpose of his employment,
State the contents or conditions of any document with which he has become acquainted in the course and for the purpose of his employment.
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 not protect from disclosure:
- any such communication made in furtherance of any illegal purpose
- any fact observed by barrister, etc. in the course of employment
Showing that any crime or fraud has been committed since the Commencement of his employment
Relevant Case laws:
M. C. Verghese vs T. J. Ponnan
facts:
Rathi daughter of M.C. Verghese, was married to T.J. Ponnan. Relation between wife and husband was not good. Wife wanted to take divorce on the ground of impotency of her husband. Ponnan wrote letters from Bombay to Rathi who was then residing with her parents at Trivandrum, Kerala which it was claimed contained defamatory imputations concerningVerghese. She handed over letters to her father.Verghese then filed a complaint in the Court of the District Magistrate, Trivandrum, against Ponnan charging him with offence of defamation.Ponnan submitted an application raising two preliminary contentions:(1) that the letters which formed the sole basis of the complaint were inadmissible in evidence as they were barred by law or expressly prohibited by law from disclosure; and(2) that uttering of a libel by a husband to his wife was not “publication” under the law of India and hence cannot support a charge for defamation, and prayed for an order of discharge. District Magistrate held that a communication by a husband to his wife or by a wife to her husband of a matter defamatory to another person does not amount in law as publication, since the husband and wife are one in the eye of the law. High Court upheld the decision of district magistrate.
issue:
Whether letters can be proved against husband?
Whether subsequent declaration of nullity of marriage will remove the bar against disclosure by wife?
judgement:
Unless there is publication, there will be no offence of defamation committed under Section 499 of the Indian Penal Code.The rule that husband and wife are one in the eye of law has not been adopted in its fullforce under our system of law and certainly not in our criminal jurisprudence.In Queen Empress v. Butch, it was held that there is no presumption of law that the wife and husband constitute one person in India for the purpose of the criminal law.No person who is or has been married, shall be compelled to disclose any communicationmade 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 whomade it, or his representative in interest, consents, except in suits between marriedpersons, or proceedings in which one married person is prosecuted for any crime committed against the other.If Rathi appears in the witness box to give evidence about the communications made toher husband, prima facie the communications may not be permitted to be deposed to ordisclosed unless Ponnan consents. That does not, however, mean that no other evidence which is not barred under s. 122 of the Evidence Act or other provisions of the Act can be given.When the letters were written by Ponnan to Rathi, they were husband and wife. The bar to the admissibility in evidence of communications made during marriage attaches at thetime when the communication is made, and its admissibility will be adjudged in the light of the status at the date and not the status at the date when evidence is sought to be givenin court.If the complainant seeks to support his case only upon the evidence of the wife of the accused, he may be met with the bar of Section 122 of the Indian Evidence Act.
The letters were in appellant’s possession and were available for being tendered in evidence, and he could prove the letters in any other manner. Therefore, the accused (first respondent) should not have been discharged.
State of Uttar Pradesh vs Raj Narain
facts:
Raj Narain filed ‘Election Petition’ challenging election of Smt. Indira Gandhi. He alleged misuse of public funds by a political party that fraudulently used the finances to re-elect the Prime Minister of India. The petition was filed before the Allahabad High Court. The petitioner Raj Narain asked the Government of U.P. to produce the Blue Book, which contained the guidelines for the safety of the Prime Minister when he/she travels. The High Court of Allahabad ruled that the Blue Book did not certify the conditions underlying Section 123 of the Indian Evidence Act, 1872, which states that no one can give any singular evidence which derives from unpublished sensitive official records which relate to the affairs of the State. The High Court of Allahabad ordered that the Blue Book need to be produced, as the non- production of the document will jeopardize public interest, and gave the verdict in favor of Mr. Raj Narain. Decision of Allahabad High Court was challenged before Supreme Court.
issue:
Whether the Blue Book was an unpublished government record within the meaning of Section 123 of the Evidence Act?
judgement:
A witness, though competent generally to give evidence, may in certain cases claim privilege as a ground for refusing to disclose matter which are relevant to the issue.Secrets of State, State papers, confidential official documents and communications between the government and its officers or between such officers are privileged fromproduction on the ground of public policy or as being detrimental to the public interest orservice.The principle behind Section 123 of the Evidence Act is the overriding and paramount character of public interest.In Sukhdev Singh case this Court said that the first limb of Section 162 required awitness to produce a document to bring it to the Court and then raise an objection against its production or its admissibility. The second limb refers to the objectionboth as to production and admissibility. Matters of State in the second limb ofSection 162 were said by this Court in Sukhdev Singh case to be identical with theexpression “affairs of State” in Section 123.Objection as to production as well as admissibility contemplated in Section 162 of theEvidence Act is decided by the Court rather than State in the enquiry.The several decisions to which reference has already been made establish that thefoundation of the law behind Sections 123 and 162 of the Evidence Act is the same as inEnglish law. It is that injury to public interest is the reason for the exclusion from disclosure of documents whose contents if disclosed would injure public and nationalinterest.Public interest which demands that evidence be withheld is to be weighed against the public interest in the administration of justice that courts should have the fullest possibleaccess to all relevant materials.The Court will disallow the objection if it comes to the conclusion that the documentdoes not relate to affairs of State or that the public interest does not compel its non-disclosure or that the public interest served by the administration of justice in a particularcase overrides all other aspects of public interest.An overriding power in express terms is conferred on the Court under Section 162 todecide finally on the validity of the objection.
In the present case, it cannot be said that the Blue Book is a published document. Any publication of parts of the Blue Book which may be described as innocuous part of the document will not render the entire document a published one. Decision of High Court was set aside in this case.
Present Problems:
Whether the following communication is protected from disclosure? 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.”
Answer: This statement cannot be protected from disclosure as per illustration of section 126 because it is a communication made in furtherance of illegal purpose.
X, the husband wrote a letter of Y, his wife on 21.2.2018, which was defamatory against Y’s father. Y obtained decree of divorce against X on the ground of impotency on 15.12.2018. Discuss the admissibility of letter written by X to Y in a case of defamation filed by father against X on 25.1.2019.
Answer: Letter will not be admissible as it is a communication between spouse and prohibited to disclose as per section 122.( Verghese vs Ponnan)
In a writ proceeding, the Petitioner seeks the disclosure of a file of the Home Department of the respondent State. The Home Secretary files an affidavit in the High Court claiming privilege under section 123 of the Indian Evidence Act, 1872 submitting, the disclosure of the said file, which according to her, relates to the matter of State, will injure public interest that outweighs the private interest of the Petitioner. The Home Secretary also submits, that the High Court, as per the law of evidence, cannot compel the production of the said file for inspection. Discuss the tenability of the above submissions in light of the provisions and case law applicable.
Answer: The High Court is not barred from compelling the production of the file for inspection merely because the Home Secretary claims privilege. The court has the authority to examine the validity of the privilege claim.
If the court deems it necessary, it can inspect the file in camera to ensure that the claim of privilege is justified and that non-disclosure is indeed in the public interest.
