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Privileged Communication - to say or not to say!

Post by on Thursday, February 24, 2022

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In todays fast-moving world, where the distances are growing smaller due to advances in the travel and communication industry, true relationships are growing more and more scarce as the hustle and bustle to make ends meet on a daily basis keeps us away from fostering lasting bonds with people who matter. One of the biggest shortcomings of this lack of bonding in our day to day lives is the increased cases of depression and feeling of loneliness among people. 


The reasons why most of the people today have stopped opening up about their personal or business-related problems is also because they have, to a certain extent lost faith in others and hence they always fear that their secrets might be laid out in the open for all to see and their weakness might be exploited by their adversaries in the future. 


??Keep you secret and its your slave... 

??Tell it and its your master... 


This sayings still holds strong in todays world. Privileged communication is one such communication that protects a person against the fear of being misused and exploited in the future.

What is Privileged Communication? 

When two individuals enter into a legally recognized relationship, all communication that takes place between them is protected. This communication is known as privileged communication. It is called so because whatever information that is disclosed in this kind of setting is protected i.e. the courts cannot force the individual to disclose the details of such communication. 


Prerequisites of Privileged Communication 

To be termed as privileged communication, there are certain conditions that need to be fulfilled. These are:

1. The communication should take place between individuals who are in a protected relationship.

2. The communication should happen in a private setting. 

3. The information communicated should not be disclosed to a third party.

Privileged Communications are made in a private setting and are protected from disclosure to third parties. The rule of privileged communication exists because privacy of confidential relationships is valued in the society. This is why they are not admissible as evidence.


Types of Privileged Communication

All communication that takes place between an attorney and his client comes under the ambit of privileged communication. The same is also called as the client-attorney privilege and is governed by various provisions under the Indian Law like The India Evidence Act, 1872, The bar Council of India Rules, and The Advocates Act, 1961.

The Indian Evidence Act deals with privileged communication associated with all types of communication that is exchanged during the course of professional relationship between an advocate and his client. This is imperative as if all the information is not communicated by the client to his attorney due to his being under the fear of disclosure then the attorney will not be able to defend his client properly in the courts of law. The Indian Evidence act also forbids the attorney or a legal advisor from disclosing confidential information disclosed by his client or the advise that was given by him during the course of professional interaction. The ban on disclosure also includes any documents that the attorney may have come across or became familiar with during his discourse with his client. The said embargo will also exist even if the contract of the attorney with his client has got terminated/expired.


Exception to the client attorney privilege as per law 

There are certain exceptions to the above stated rule. These are: 

a) Any communication which takes place in furtherance of any illegal purpose;

Illustration: “A”, a lawyer has been asked by his client, “B” to forge some documents so that he can be granted possession of a property. This communication is made in furtherance of an illegal purpose, and thus is not protected from disclosure. 

b) Any fact observed by a lawyer in the course of his employment, showing that any crime or fraud has been committed by the client since the commencement of his employment. 

c) Express consent of the client. If the client himself gives permission to the lawyer to disclose the information, then that information will not be protected from disclosure. 

Only those communications which are made with the purpose of getting professional advice from the lawyer are considered as protected. This privilege exists only when both are in a confidential relationship and not before that. Apart from The Indian Evidence Act, The Bar Council of India Rules also talk about an Advocate’s duty towards his client and the same are mentioned in The Rules on Professional Standards, Part VI, Chapter II, Rule 7 & 15 of the Bar Council of India Rules. 

While Rule 7 states that no Advocate will disclose, directly or indirectly, any communication which took place between him and his client, Rule 15 states that the Advocate should not take advantage of the confidence that his client has reposed on him. 

When is the privilege lost?

There are certain circumstances where claim on the privilege is lost. These are: 

a) If the communication is made to further an illegal purpose.

b) If the plaintiff himself waives his right.

c) If the information is disclosed to a third party. In this case, a third party is a person who is not a part of the protected relationship. Thus, third party does not include the helpers or clerks of the lawyer. 

There are also certain privileges that accrue due to certain other relationships. These may be categorized as:

1. Communication between married persons: 

Marriage being a protected relationship, all communication that takes place between a husband and a wife is said to be privileged. The protection will survive even if the marriage between them dissolves. The court or any other authority cannot compel a husband or a wife to disclose any information that was exchanged during the subsistence of marriage. The law also states that a husband and a wife cannot be compelled to testify against each other. The said communication has been protected vide sec 122 of The Indian Evidence Act. However like all other privileges, this too comes with certain exception, namely:

a) When the dispute is between the married parties.

b) When the married person or his representative gives his consent to disclose the information. 

2. Communication by Religious and spiritual Advisors:

This type of communication is also called as priest-penitent privilege and the main purpose of the same is to protect the religious disclosures or confessions made to a priest or a religious advisor of a person. The same has been granted so that a person can unburden himself freely before his religious advisor or any priest without fearing the repercussions.

3. Doctor-patient privilege:

This privilege is used to protect the relation between a doctor and his patient. In fact, the Medical Council of India can revoke the license of the doctor who breaches the confidentiality. There are however, exceptions to this privilege too, namely:

a) A medical professional is allowed to disclose information about a patient on the order of a judge.

b) In cases where there is a risk to the patient himself or to the society at large.

c) In cases of a notifiable disease.


4. Communication by Informers:

The Indian Evidence Act also protects the communication by an informer to any magistrate or a police officer. 

5. Journalists’ privilege

Journalists are also protected under Reporter’s Privilege or Press-Source Privilege. This privilege protects the journalists from revealing their sources and the same is protected under The Press Council of India Act, 1978.

To conclude, we can also say that there are various protected relationships wherein communication can be made without the fear of disclosure. The same is protected as the person concerned has to place his full faith and confidence on the other party and disclose certain information that may be damaging to him or his cause in the future. In the absence of the rule of privileged communication, a client would always be worried about his lawyer disclosing information against him, or a patient would be worried about his doctor disclosing his medical details. A husband will be mindful of what he shares with his wife and vice-versa. In fact, no one would dare to ask for professional advice and no man could safely go to court, to find redressal or to defend himself

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