In legal proceedings, truth-finding is the primary goal, and the Law of Evidence plays a crucial role in ensuring that only relevant, reliable and admissible facts reach the court. However, there are certain communications that—even if highly relevant—cannot be forced into court. These protected exchanges are known as privileged communications. The concept is rooted in public policy: some relationships are so vital to society that confidentiality must be preserved, even at the cost of potentially useful evidence.
In India, the concept of privilege is primarily governed by the Indian Evidence Act, 1872, along with judicial interpretations. Privileged communications help maintain trust in essential relationships, uphold constitutional values, and prevent misuse of confidential information.
This essay explores the meaning, types, rationale, and limitations of privileged communications under the Law of Evidence.
Meaning and Importance of Privileged Communications
Privileged communication refers to information exchanged between two parties in a legally recognized confidential relationship, which the law protects from disclosure in court. Even if the information is relevant or material, the party holding the privilege can refuse to disclose it, and the court cannot compel them.
The importance of this privilege lies in:
- Encouraging free, honest communication in sensitive professional relationships
- Protecting privacy and confidentiality
- Upholding public interest
- Maintaining ethical standards in professions such as law, medicine, and journalism
Without such privileges, people would hesitate to share vital information with their lawyers, doctors, spouses, and others whose guidance depends on confidentiality.
Types of Privileged Communications under the Indian Evidence Act
The Indian Evidence Act recognizes several categories of privileged communications, each grounded in public policy.
Communication During Marriage – Sections 122 and 120 IEA
Scope
Section 122 prevents either spouse from giving evidence about any communication made during marriage, unless the communicating spouse consents. This applies whether the marriage continues or is dissolved.
However, spouses are competent witnesses against each other under Section 120, except for protected marital communications.
Rationale
Marriage is a trust-based relationship. If spouses fear that private conversations could be exposed in court, the sanctity of the marital bond would weaken.
Exceptions
- Consent of the communicating spouse
- Legal proceedings between spouses
- Communications not made during marriage but before or after
Professional Communications with Legal Advisors – Sections 126 to 129 IEA
This is the most significant form of privilege in modern legal systems.
Section 126 – Advocate–Client Communications
An advocate cannot disclose:
- Communications between him and his client
- Documents he became acquainted with during employment
- Advices given to the client
This applies even after the employment ends.
Exceptions
- Intent to commit a crime
- Communications relating to an illegal purpose
- Observations made by advocate about crime or fraud committed since the beginning of employment
Section 127 reinforces the above privilege for interpreters, clerks, and assistants of advocates.
Section 128 protects clients from being compelled to disclose such privileged matters unless they offer themselves as witnesses.
Section 129 bars compelling any person to reveal confidential communications with their legal advisor unless they themselves rely on them.
Rationale
The administration of justice depends on the freedom of clients to speak openly with their lawyers.
Communications Made to Public Officers – Section 124 IEA
A public officer is not compelled to disclose communications made to them in official confidence if the disclosure would harm public interest.
Examples:
- Sensitive government reports
- Intelligence communications
- Confidential policy discussions
Rationale
To protect national interest, public safety, and effective administration.
Official Communications – Section 123 IEA
This covers unpublished official records relating to public affairs. The court cannot compel disclosure without permission of the head of the department.
Purpose
To prevent disclosure of documents that might compromise governmental functioning or security.
Privilege Regarding “Source of Information” – Journalistic Privilege
Though not expressly provided in the Evidence Act, courts have recognized a limited privilege for journalists regarding protection of sources. However, this is not absolute and depends on public interest.
Rationale Behind Privileged Communications
The philosophy of privileged communications is anchored in public policy, professional ethics, and privacy rights, which are indirectly supported by Article 21 of the Constitution of India.
Key principles include:
✔ Protection of Confidential Relationships
Certain relationships require absolute trust.
✔ Efficient Justice System
Advocates must know the full truth to represent clients effectively.
✔ Public Interest
Some information—such as state secrets—must remain undisclosed.
✔ Privacy and Autonomy
Citizens have the right to keep personal interactions private.
Limitations and Exceptions to Privilege
Privilege is not absolute. Some important limitations include:
Crime or Fraud Exception
If the communication was made in furtherance of an illegal purpose, privilege cannot be claimed.
Public Interest Override
In issues of national security, the court prioritizes public welfare.
Waiver of Privilege
When the person holding privilege voluntarily discloses part of the communication, the remaining part may lose its privilege.
Privilege Belongs to the Communicating Party
Especially in marital and professional relationships, only the person who made the communication can allow disclosure.
Mnemonic to Remember Privileged Communications
“M-L-O-P-J” → Marriage–Lawyer–Official–Public Officer–Journalist
M – Marriage communications (Sec. 122)
L – Lawyer–client privilege (Sec. 126–129)
O – Official documents (Sec. 123)
P – Public officer confidential info (Sec. 124)
J – Journalist source protection (Judicial recognition)
Mnemonic Sentence:
“My Lawyer Often Protects Justice.”
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