The concept of privileged communication is a cornerstone of evidentiary law, ensuring that certain relationships and communications remain protected from compelled disclosure in judicial proceedings. While the law generally seeks to uncover the truth, it recognizes that unrestricted disclosure could undermine essential relationships of trust—such as those between spouses, clients and lawyers, or citizens and the State.
The Bharatiya Sakshya Adhiniyam, 2023 (BSA), which has replaced the colonial-era Indian Evidence Act, 1872, codifies these protections under Sections 127 to 134. These provisions correspond to the earlier Sections 121 to 129 of the Evidence Act, but with refinements to align with modern legal needs.
This article explores the scope, significance, and exceptions of privileged communications under the BSA, supported by case law and doctrinal analysis.
What is Privileged Communication?
Privileged communication refers to information shared in confidence within certain protected relationships that the law shields from compelled disclosure in court. A person may otherwise be a competent witness, but privilege acts as an exception, recognizing that the free flow of confidential communication outweighs the truth-finding objective in such contexts.
Key Types of Privilege under BSA, 2023
1. Judicial Privilege (Section 127, BSA)
Judges and Magistrates cannot be compelled to testify regarding:
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Their conduct in proceedings over which they presided, or
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Facts that came to their knowledge during judicial functions.
This privilege ensures judicial independence. It may only be set aside through special authorization by a higher court.
Case Reference:
In R v. Elliott (1890), courts emphasized that judicial officers cannot be cross-examined about their conduct in a case, reinforcing the principle of judicial dignity.
2. Marital Communications (Section 128, BSA)
Spouses are prohibited from disclosing communications made to each other during the subsistence of marriage. This privilege remains intact even if one spouse wishes to testify.
However, exceptions exist where:
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One spouse is prosecuted for an offence against the other, or
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The dispute is directly between husband and wife.
Case Reference:
In M.C. Verghese v. T.J. Ponnan (1970), the Supreme Court underscored that the privilege applies strictly to “communications” and not to independent facts observed by a spouse.
3. Evidence Relating to State Affairs (Section 129, BSA)
No person may produce evidence derived from unpublished official records relating to State affairs without the prior permission of the department head. Such permission can be refused if disclosure is detrimental to public interest.
This balances transparency with national security and executive privilege.
4. Official Communications (Section 130, BSA)
Public officers may withhold official communications made in confidence if disclosure is deemed harmful to public interest.
Importantly, this privilege is discretionary:
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The officer may waive it.
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Once waived, the communication becomes admissible.
5. Source of Information about Commission of Offences (Section 131, BSA)
Magistrates, police officers, and revenue officials cannot be compelled to disclose the identity of informants.
This protection encourages citizens to report crimes without fear of exposure or retaliation.
6. Professional Communications (Section 132, BSA)
Perhaps the most crucial, this section protects communications between a client and their legal adviser. Advocates cannot disclose such communications without the client’s consent.
Exceptions:
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Communications made in furtherance of an illegal purpose.
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Facts observed by the lawyer that indicate a crime or fraud.
Case Reference:
In B. Sunitha v. State of Telangana (2017), the Supreme Court reiterated the importance of confidentiality between lawyer and client as an ethical duty beyond mere statutory protection.
7. Privilege Not Waived by Volunteering Evidence (Section 133, BSA)
When a party voluntarily gives evidence, it does not amount to a waiver of privilege. The witness is only bound to answer what is specifically asked, not to disclose all confidential communications.
8. Confidential Communications with Legal Advisers (Section 134, BSA)
This section further reinforces client-lawyer confidentiality, ensuring individuals cannot be compelled to disclose confidential communications with legal advisers, unless voluntarily necessary to clarify their own testimony.
Importance of Privileged Communication
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Preserves Trust: Ensures spouses, clients, and citizens can confide freely without fear of later exposure.
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Strengthens Institutions: Protects judicial independence, executive confidentiality, and professional ethics.
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Encourages Honesty: Especially in the lawyer-client context, privilege ensures full disclosure necessary for effective defense.
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Balances Interests: Recognizes that absolute truth-seeking must yield where greater social interestssuch as trust, confidentiality, and State security are at stake.
Exceptions: When Privilege Does Not Apply
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Marital Privilege: Not applicable in cases involving offences by one spouse against the other.
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Professional Privilege: Communications made for illegal purposes or facts indicating fraud/crime are not protected.
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State Affairs: Confidential records may be disclosed if public interest requires it.
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Judicial Privilege: Judges may be questioned on facts observed as witnesses, but not on their judicial conduct.
Conclusion
Privileged communications under the Bharatiya Sakshya Adhiniyam, 2023 are not mere technicalities but essential safeguards for justice. They protect confidentiality in relationships where disclosure would undermine trust, professional ethics, or public interest. By codifying these protections under Sections 127-134, the law balances the pursuit of truth with the preservation of higher values such as privacy, independence, and security.
In today’s legal system, where transparency and accountability are constantly weighed against confidentiality, privileged communication serves as a reminder that justice is not only about what is revealed but also about what must remain protected.