Privileged Communication: Meaning and Types

Professional communication between two or more people are usually an open talk and can be shared without any hindrance; but in a legal system, some of the professional relations and their communications are privileged and protected from any discloser.

What is Meaning of Privileged Communication?

Privileged communication usually refers to professional-cum personal conversation, which is (by default) protected by law and cannot be disclosed without the consent of the person who provided the information. For example, attorney-client, doctor-patient, and priest-penitent; the information provided by client to his or her attorney; patient to his or her doctor; or penitent to his or her priest, is privileged. Such information is not admissible in the court of law without the consent of information provider.

The objective of making these communications privileged is to encourage open and honest communication between parties, so that they can obtain necessary information and advice. However, the laws governing privileged communication vary by jurisdiction, but the common principle is that the information will not be disclosed unless required by law or necessary to prevent harm to others.

Illustration

The couple, "T," consisting of the husband and wife, is going through a difficult time. Only "T's" lawyer is aware of his decision to use his will to give all of his possessions to Z (the third party). It is a privileged communication; therefore, the lawyer has no right to reveal it. Only if T gives permission or if T discloses to a third party himself can he divulge the information.

Privileged Communications in Indian Law

The existence of privileged communications in Indian law can be traced in −

Section 126 of the Indian Evidence Act, 1872 states that

“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 in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment.”

Further, Section 129 of the Indian Evidence Act, 1872 states that

“No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others.”

However, in any case, if client shares some illegal information or any future plan, which is illegal in nature, then advocate is not bound to follow this rule rather he or she needs to inform the proper authority to restrain him or her from committing offence.

Types of Privileged Communications

Following are the major types of privileged communications −

Spousal Communication

Communication between a man and his wife is referred to as "spousal communication." Any correspondence among a married couple is regarded as private. Any disclosure of such material to a third party while a marriage is still legally binding is prohibited for either party. This idea has its roots in English common law, which was established in the English Evidence (Amendment) Act of 1853. Conferring to Indian jurisprudence, this idea represents the "expectation" of marital secrecy and the harm that such revelation might do to the family unit.

The Supreme Court has also made it clear that all communications between spouses must be kept private if they took place while the marriage was still in existence. The date of the communication, not the date the communication was requested by the court, must be the deciding factor when assessing whether or not spousal testimony is admissible as evidence. The communication would still be privileged even if it had place while the couple was still married but has since ended. Notably, when a dispute arises between married people, section 122's restrictions do not apply. The parties might be permitted to introduce their correspondence as proof.

Professional Communication

A lawful advisor and his client's communication is referred to as "professional privileged communication. The lawful advisor cannot be forced to disclose material that was discussed among two of these people in furtherance of the adviser's professional employment. As the clause mentions the category of "barrister, counsellor," which in India is a counsellor, the protection beneath this section extends to any person enumerated as a legal expert in India.

A discovery of the threatened statement is also legalized with the direct permission of the party who made it. If a third party is aware of the specifics of that statement, that individual may be required to divulge the material, and the material would then be acceptable as evidence under the Indian Evidence Act. The provisions of Section 127 further extend the applicability of Section 126 to the assistants, servants, and clerks of the attorneys who are mandatory to keep advantaged communications confidential.

State Communication

The Indian Evidence Act, 1872, Section 123, forbids anyone from testifying based on information gleaned from state-related affairs that has not been published. Only if the head of the relevant government department permits disclosure may this be done. By doing this, the state's security and the general welfare are served by doing this. Additionally, if a statement was completed in "authorized assurance" to an official of the Indian government, that statement would also be honored if the official thought disclosing it would be against the benefits of the public. Any data provided to a police officer or revenue officer concerning the command of an offense is also confidential.

Exclusive Communication with Other Nations

Privilege is a fundamental right that is utilized as a safeguard by people and businesses in both the USA and the UK to prevent them from disclosing any privileged communications.

United States of America (USA)

Under the legal professional privilege, three areas of law are protected −

• Rule of Confidentiality − An attorney is not permitted to reveal confidential communications that he had with a client or that client's representative without the client's permission or in accordance with other applicable exceptions.

• Attorney-client privilege − under this rule, intimate communication made in the course of receiving legal services, particularly during judicial proceedings, are not subject to disclosure.

  The work product doctrine guards against the disclosure of information by opposing counsel that has been prepared in advance of a legal dispute.

United Kingdom (UK)

In general, the UK recognizes two categories of privileges to safeguard client-attorney communication −

• Legal advice privilege − This only applies to written or spoken communications that are isolated and confidential between an attorney and a client and that provide, request, or receive legal advice. Tax consultants and accountants are not included in this definition of "lawyer," but in-house counsel is included.

• Litigation privilege encompasses any written or verbal interactions that are private and secret between a lawyer and a client, or between either of them and a third party, that offer, request, or receive legal advice in connection with a case.

Conclusion

Privileged or confidential conversations between people who are legally protected are referred to as "privileged communication." Once a third party learns about one of these communications, it is no longer confidential. A person in this protected relationship cannot be asked to disclose any data about this conversation in court, as per the rule of privileged communication.

This principle's cornerstone is to protect the faith that a client places in an attorney, a patient in a doctor, and spouses in one another. In the event that it is broken, the legislation also specifies penalties. There are a few exceptions, consequently this privilege is not unqualified. It may be broken in a number of situations that are either listed in the act itself or in a number of situations determined by Indian courts.

FAQs

Q1. When can privileged communication be disregarded?

Ans. A conversation between a client and an attorney would be considered privileged communication; nevertheless, if the client and the attorney are both engaged in illegal behavior, the idea of protected communication would still be applicable.

Q2. Do you have proof that your mistress or living partner cohabitates?

Ans. The Court has not yet ruled on the live-in partner issue, but for the mistress, it was decided that the section wouldn't apply and that the evidence could be trusted.