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Attorney client privilege under Section 126 of Indian Evidence Act, 1872

The attorney client privilege is a crown jewel of the legal profession.[1] According to Black law dictionary, attorney client relationship refers to the disclosure of potential sensitive information from clients to their attorney and law requires that an attorney does not reveal or disclose such information or communication between them to any third party.

A sound system of administration of justice should contain three ingredients such as, a well-planned body of law based on the concept of social justice, a judicial hierarchy which is learned in law and inspired by the high principles of professional conduct and a suitable generation for ensuring fair trial.[2] A privileged professional communication refers to the protection awarded between the legal advisor and the client. Legal privilege or attorney client privilege is essentially referring to the rights which are available to the client for the protection of their interest.

It ensures full, frank and complete disclosure of information or communication between the client and lawyers without any fear of disclosure or incrimination. The main intension behind this concept is that people or client must speak candidly or everything to their lawyers so that their interest is completely represented to them.[3]

The principle of attorney client is not a new concept. The origin of this concept can be traced all the way back to the Roman Republic and its use was firmly established in English law as the reign of Elizabeth I in the 16th century.[4] The doctrine of client confidentiality privilege became the integral part of the UK common law and it is accepted whole around the world. Non-attorneys such as accountants, business consultants and other advisors do not come into the scope of this privilege.

In R vs. McClure[5] case, the Canadian Supreme Court has briefly explained about the importance of legal privilege. The Court provided that, this privilege is considered as fundamental to any justice system. The law consists of complex web of interest, relationship and rules. The integrity of the administration of justice depends completely upon the unique role of the solicitor or attorney who provides legal advice to their clients within this complex system. At the heart of this privilege lies the concept that people must be able to speak candidly with their lawyers and so enable their interests to be fully represented.[6] Therefore legal privilege refers to an essential right for the sole benefit of the client. Every developed legal system provides the protection to the communication between an attorney and the client.

Aim(s)
The aim of this project titled Attorney client privilege under Indian Evidence Act 1872, is to understand the concept of attorney client privilege in India. At the same time its main aim is to study how this rule preserves the confidentiality of communication between lawyer and the client.

Objectives
These are some main objectives-
· To understand the concept of attorney client privilege under Section 126 of the Indian Evidence Act, 1872.
· To study the history or origin of the concept of attorney client relationship.
· To study about the scope and element of Section 126 of the Indian Evidence Act, 1872.
· To discuss about the various criticism or limitations of the attorney client privilege that is provided under Section 126 of the Evidence Act.

Attorney client privilege in India

In India law on attorney client privilege is codified under the Indian Evidence Act, 1872 and it has been developed on the basis of the same lines as that of the UK common law. The Indian Evidence Act, 1872 provides protection to the professional communication and confidential communication of a client with their legal advisors. Sir James Fit- James prepared its draft and it was based on the English law of evidence.

Even after independence in 1947, English judgements remained persuasive authority and the courts in India may look into the English decision in matter concerning to the interpretation of Evidence Act.[7] The law in India relating to the privilege communication is very much familiar to the English law and common law lawyers.

In India, the benefit of the privilege communication is enumerated under Section 126 to Section 129 of the Indian Evidence Act, 1872 and provides relationship between the client and attorney or advocate. The attorney or advocate is legally not permitted to disclose any communication or document related to the client without clients express consent. At the same time, a client is also not permitted to disclose to court any confidential information with his advocate unless he offers himself as the witness.[8]

Section 126 and Section 128 deals with the circumstances under which the legal advisors or attorney can give evidence of such professional communication, however, Section 127 provides that interpreters, clerks or servants of the legal advisors are restrained in the same manner. Section 129 enumerates the conditions when legal advisors or attorney is required to disclose the confidential information that has been taken place between him and client. According to Wilden Pump Engineering Co. v. Fusfield[9], a patent agent was not regarded as a variety of lawyer and was held to be outside the common law privilege under English law.

Scope of Section 126 of the Evidence Act

Section 126 of the Indian Evidence Act 1872, provides the scope of the privilege attached to the attorney client relationship. It provides restriction on the barrister, attorney, pleader or vakil to disclose communications made by his client or advice given by him in the course of his employment except if there is an illegal purpose or showing a crime or fraud after commencement of his employment.[10]

In Memon Hajee Haroon Mohomed v. Abdul Karim [11]case, it was provided that in order to claim privilege under Section 126 of the Indian Evidence Act, 1872 a communication made by the party to their advocate must be confidential in nature. Also, no privilege will be given to such communication which is made before the creation of attorney client relationship.[12]

In India any person who seek advice from the advocate or attorney registered under the Advocate Act, would have the benefit of the attorney client privilege and such communication is protected under Section 126 of the Indian Evidence Act, 1872.[13] The scope of this section also extends to the employees of the advocate or law firm which also includes accountants, paralegals and other such employees.

This code of conduct is also applicable to the advocates or legal advisors which are found in the Bar Council of India Rules Part VI, Chapter II, Section II, Rule 17 provides that advocate shall not directly or indirectly commit a breach of obligation imposed under Section 126 of the Indian Evidence Act, 1872, thus protecting the spirit of attorney client relationship and breach of same would lead to the violation of the Bar Council Rules of India.

In order to determine the scope of attorney client privilege under Section 126 of the act, it is very important to treat an attorneys position separate from that of the client. The level of protection that should be provided to a communication depends on whether the information or document is sought to extracted from an advocate or from his client. Section 126 provides protection against disclosure of any communication by an advocate.

However, there are some exceptions to this rule, such as this Section does not provide protection when any communication is made in furtherance of any illegal purpose or any fact which is observed in the course of employment showing that any crime or fraud has been committed during the commencement of employment.[14] The communication made to an advocate must be made confidentially in order to maintain the attorney client relationship.

The privilege under Section 126 of the Act also extends even after the attorneys or advocate engagement has comes to an end however, it does not provide protection to the communication or advice received after the end of the employment. This rule is also extends to the interpreters or agents of the attorneys who are under the same prohibition and they are also entitled to the same immunity as the advocate engaged in the matter.[15] However, such privileged communication or documents can be disclosed by the advocate only when an express consent is provided by the client.

Also, client can disclose such document or information when he voluntary give evidence as a witness to Court, which according to the Courts opinion is necessary to explain the evidence that the client has already given to an attorney but for no other purposes. Section 23 of the Indian Evidence Act, 1872 provides that in civil case no such admission is considered as relevant which is made upon an express condition that evidence of it is not to be given or under circumstances when the court can infer that the parties agreed together that evidence of it should not be given.

This provision is explained as nothing in this section shall be taken to exempt any attorney or advocate or vakil from giving evidence in any matter of which he may be compelled to give under Section 126 of the Indian Evidence Act, 1872. Attorney client relationship in India is limited to the information, communication, documents or advice shared between client and advocates and their agents, and provision is made for the communication or documents made by the parties or their attorneys to the third party in case of pending or contemplated litigation. Neither the advocate nor the client is under obligation to spell it to some other third party.[16]

Critical analysis of attorney client privilege under Indian Evidence Act

Attorney client relationship is established as legal doctrine which protects the confidential communication between the client and their advocate, although its application is not absolute. There are some grey areas in Section 126 of the Evidence Act.

The Scope of Section 126 is limited only to the barristers or attorney; it does not confer privileges to the in house lawyers.[17] In house lawyers may not practise as advocates or attorney during the period of their employment and they clearly fall outside the ambit of the Section 126 of the Act.

The Supreme Court in Satish Kumar Sharma v. Bar Council of Himachal[18] case provided that if a full time employee is not pleading on behalf of his employer, or the term of the employment is such that he can do other functions or is not required to plead then such employee is mere a employee of the government or body corporate. The judgement also referred to the Part VI, Chapter II, Section VII, Rule 49 of the Bar Council of India Rules, and sated that an advocate cannot be a full time salaried employee of any person, government, firm or corporate body as long as long as he practices.[19]

Also, patent agents are not getting privilege under Section 126 of the Act. In Municipal Corporation of Greater Bombay v. Vijay Metal Works[20] the court provided that the salaried employees who advices their employers on legal matters would get the same protection as the lawyers or advocates under Section 126 and Section 129 of the Indian Evidence Act provided that the communication made between them is not made in furtherance of any illegal purpose.[21]

Although, in the Azko Nobel judgement, the ECJ appears to have taken a contrary view. Section 129 of the Act provides that legal professional advisors may not include patent agent and hence the provision restricts privilege to the clients only. Another major limitation of Section 126 of the Act is that the communication or information between the third parties or client and between the lawyers and third parties such as technical experts or expert witnesses is protected under Section 126 of the Indian Evidence Act, 1872. There should be a distinction between the legal advice privilege or litigation privilege.

In India under the Evidence Act, the communication made for the purpose of obtaining the advice from the lawyer is not protected while only such communication is privileged which occur subsequent to the decision to commence litigation. Under RTI Act, an attorney or advocate cannot hold the personal information, communication or document ahead or such communication is not entitled to be disclosed. In Karamjit Singh vs. State[22] it was held that any information or communication given by client is not entitled for access.

The rule relating to the attorney client relationship under Indian Evidence Act is not adequate. It may sometime happen this provision protect the criminals or the offenders. It is said that that œonce a privilege is always a privilege, it means that once a communication or information made by a client to his attorney during the course of his employment is always protected even when such employment comes to an end. However, Section 126 plays a major role in various cases such as rape, murder, crime related to POCSO Act etc.

For instance, if a person has committed an offence of rape, and during the trial period it is his responsibility to provide all the necessary information or communication or documents to his advocate or attorney regarding such crime, in these circumstances his advocate shall not discloses his entire clients secret or personal information to anyone or to the Court.

If an attorney does not keep secret or discloses the aforesaid communication to the court or police, it would be against his professional ethics. Hence, Section 126 provides privilege to such criminals who may be punished under Indian Penal Code of India but are protected under attorney client privilege under the Evidence Act. Section 126 provides privilege only to the client not to the legal advisors or attorneys and only client can waive it.

It is also true that if privilege is not granted to the professional communication then no one will come to the lawyers. But we can see that there a big loophole in this rule such as in one hand it protects the clients secret while on the other hand it may protects criminals.

Conclusion
It is very evident that attorney client relationship is considered as a privilege document is very vital for the effective disposal of the dispute. A lawyer or attorney is under a moral well as the statutory obligation to respect the confidence reposed in him and not to disclose his clients personal information, communication or documents to anyone in the course or purpose of the employment. If such communication would not be protected, then no one will consult an advocate or attorney for his defence or to the enforcement of his rights and hence no man would come to court either to redress or to defend himself.

The rule relating to the attorney client relationship in India is almost more than a century old rule but still it is very inadequate to provide a level of protection that is ordinarily be expected in this modern relationship with the attorney. There are many limitations and drawbacks of this rule such as the wordings related to the in-house lawyers should be made clear and they should be covered under the ambit of this rule. Also, there is complete absence of protection to the communication made to any third party. This rule is considered as very rigid in nature and it may occasionally operate to the exclusion of the truth.

Knight Bruce LJ observed that[23] Truth is like all other good things, that may be loved unwisely, it may be pursued too keenly, and it may cost too much. And surely the meanness and the mischief of prying into the mans confidential consultation with his legal advisers or attorneys, the general evil of infusing reverse and dissimulation, uneasiness, suspicion and fear, into those communication which must take place, and which, unless in the condition of perfect security, must take place uselessly or worse, are too great a price to pay for the truth itself.

However, due to its rigidity, it may also provide protection to the criminals who have committed crime and approached to court for redressal. In such circumstances Section 126 of the Evidence Act provides protection to the client and it should be the moral as well professional ethics of an advocate to not disclose any communication made by his client during the course of employment. Therefore, it is concluded that as the time is growing, the complexity in legal proceedings is also growing at a very fast rate so it is very necessary to change or modify certain wordings of this provision in order to bring same under the ambit of attorney client relationship.

End-Notes:

  1. John M. Barkett, Attorney Client Privilege (January 01, 2019 ), AMERICAN BAR ASSOCIATION, https://www.americanbar.org/groups/litigation/publications/litigation_journal/2018-19/winter/attorneyclient-privilege/ , accessed 10th October, 2019.
  2. Gauri Kulkarni, Privileged Legal Communication, http://www.legalserviceindia.com/articles/pc.htm, accessed 10th October, 2019.
  3. Abhay Tiwari,Legal professional privileges in India, www.academia.edu.com, accessed 10th October, 2019.
  4. Stephen Forte, What the Attorney Client Privilege Really Means, https://www.sgrlaw.com/ttl-articles/916/, accessed 10th October, 2019.
  5. Nishith Desai Associates, Client Confidentiality Privilege: Only for Lawyers and Not for Accountants,http://www.nishithdesai.com/information/research-and-articles/nda-hotline/nda-hotline-single-view/article/client-confidentiality-privilege-only-for-lawyers-and-not-for-accountants.html, accessed 10th October, 2019.
    [7] Abhay Tiwari,Legal professional privileges in India, www.academia.edu.com, accessed 11th October, 2019.
  6. Nishith Desai Associates, Client Confidentiality Privilege: Only for Lawyers and Not for Accountants,http://www.nishithdesai.com/information/research-and-articles/nda-hotline/nda-hotline-single-view/article/client-confidentiality-privilege-only-for-lawyers-and-not-for-accountants.html, accessed 10th October, 2019.
  7. [1985] FSR 159
  8. Section 126 of the Indian Evidence Act, 1872
  9. [1878] 3 Bom. 91
  10. Kalikumar Pal v. RajkumarPal 1931 (58) Cal 1379, Para 5)
  11. D.H. Law Associate, Attorney Client Privilege in India, www.manupatrafast.in, Newslex September 2012, accessed 12th October, 2019.
  12. Gauri Kulkarni, Privileged Legal Communication, http://www.legalserviceindia.com/articles/pc.htm, accessed 12th October, 2019.
  13. Section 127 of the Indian Evidence Act, 1872.
  14. PR Ramakrishnan vs. Subbaramma Sastrigal, 1988 CrLJ 124.
  15. Sonia Chan, An in-house lawyers right to legal privilege Asia Law May 2008, https://www.lw.com/upload/pubcontent/_pdf/pub2251_1.pdf accessed on 12th October, 2019.
  16. (AIR 2001 SC 509)
  17. D.H. Law Associate, Attorney Client Privilege in India, www.manupatrafast.in, Newslex September 2012, accessed 13th October, 2019.
  18. (AIR 1982 Bom 6)
  19. Sonia Chan, An in-house lawyers right to legal privilege Asia Law May 2008, https://www.lw.com/upload/pubcontent/_pdf/pub2251_1.pdf accessed on 12th October, 2019
  20. AIR 2010 (NOC) 699 (P&H)
  21. Gauri Kulkarni, Privileged Legal Communication, http://www.legalserviceindia.com/articles/pc.htm, accessed 12th October, 2019.

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