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Attorney Client Privilege under Indian Evidence Act, 1872

Attorney Client Privilege or Lawyer Client Privilege is the name given to the Common Law concept of Legal Professional Privilege in the Law field. Attorney-client privilege is a Client's Right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney.

The Attorney Client Privilege is one of the oldest privileges for confidential communications. The Indian Judiciary System and Indian Court has stated that by assuring confidentiality, the privilege encourages clients to make full and frank disclosures to their attorneys, who are then better able to provide candid advice and effective representation.

Privileged Communication refers to the confidential conversations or interactions between two parties who are in a legally recognized protected relationship. The information cannot be leaked to any third party, not even in the Court. Law can never force an individual or a corporation to disclose the contents of privileged communications.
  • The husband and 'B', the wife are undergoing a rough patch in their matrimonial life.
  • decides to transfer all his property to C via his will and only his lawyer knows about this. If B ever asks A's lawyer to disclose it, the lawyer can't tell as it is a privileged communication.
  • He can tell only if A gives consent to do so or A himself discloses to a third party.
The main aim and objective of introducing and implementing the very well concept of 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.

The attorney client privilege is a crown jewel of the legal profession. 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.

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.

A privileged professional communication is a protection awarded to a communication between the legal adviser and the client. Professional communications and confidential communications with the legal advisors have been accorded protection under The Indian Evidence Act, 1872. If the privilege did not exist at all, everyone would be thrown upon his own legal resources.

Deprived of all professional assistance, a man would not venture to consult any skilled person, or would only dare to tell his counsel half his case. 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.

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. 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 this article I will discuss the Indian law the way it perceives attorney-client privilege.

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 also look into the English decision in matter concerning to the interpretation of Evidence Act. 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.

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.

Privileged Communications

In India, as we know that Sections 126 to 129 of the Indian Evidence Act, 1872 deals with privileged communication that is attached to professional communication between a legal adviser and the client.

Section 126 of the Act provides the scope of privilege attached to professional communications in an attorney-client setting. It restricts attorneys from disclosing any communications exchanged with the client and stating the contents or conditions of documents in possession of the legal advisor in course of and for the latter's employment with the client.

The section also provides certain exceptional grounds on which such privilege shall stand denied, being in furtherance of any illegal purpose or facts coming to the awareness of the attorney showing that either crime or fraud has been committed since the commencement of the attorney's employment on the concerned matter. It is immaterial whether the attention of such Barrister, Pleader, Attorney or Vakil was or was not directed to such fact by or on behalf of his client.

Section 127 extends the privilege provided under section 126 to the interpreters, clerks and servants of the legal adviser.

Section 128 continues to bind the legal adviser from disclosing any information covered under sec 126 unless the client calls the legal adviser as a witness and questions him on the same.

Section 129 lays down that no one shall be compelled to disclose to the court any confidential communication which has taken place between him and his legal professional advisor, unless he offers himself as a witness.

To claim privilege under section 126 of the Act, a communication by a party to his pleader must be of a confidential nature. Also, there is no privilege to communications made before the creation of a relationship of a pleader and client. In India any person who seeks an advice from a practicing advocate, registered under the Advocates Act, would have the benefit of the Attorney Client Privilege and his communication would be protected under Section 126 of the Act. This section would also extend to the Employees of the Advocate / Law Firm which could include Accountants, Paralegals, and such other employees.
  • Memon Hajee Haroon Mohomed v. Abdul Karim
  • Kalikumar Pal v. Rajkumar Pal

The Client's Privilege

Generally, the Attorney Client Privilege applies when:
  • An actual or potential client communicates with a lawyer regarding legal advice.
  • The lawyer is acting in a professional capacity.
  • The client intended the communications to be private and acted accordingly.
  • Lawyers may not reveal oral or written communications with clients that clients reasonably expect to remain private. A lawyer who has received a client's confidences cannot repeat them to anyone outside the legal team without the client's consent. In that sense, the privilege is the client's, not the lawyer's the client can decide to forfeit (or waive) the privilege, but the lawyer cannot.
  • The privilege generally stays in effect even after the attorney-client relationship ends, and even after the client dies. In other words, the lawyer can never divulge the client's secrets without the client's permission, unless some kind of exception applies.

Comparison: The Duty of Confidentiality

The attorney-client privilege is, strictly speaking, a rule of evidence. It prevents lawyers from testifying about, and from being forced to testify about, their clients' statements. Independent of that privilege, lawyers also owe their clients a duty of confidentiality. The duty of confidentiality prevents lawyers from even informally discussing information related to their clients' cases with others. They must keep private almost all information related to representation of the client, even if that information didn't come from the client.

Expecting Confidentiality

Lawyer-client communications are covered by the attorney-client privilege only if the circumstances lend themselves to confidentiality. For example, clients who speak to their lawyers about pending lawsuits in private, with no one else present, can reasonably expect secrecy. If someone were to surreptitiously record the conversation, that recording would probably be inadmissible in court.

But a client who speaks to a lawyer in public wouldn't be able to prevent someone who overheard the conversation from testifying about it. Similarly, a client can forfeit the attorney-client privilege by repeating a conversation with an attorney to someone else, or by having a third person present during a conversation with the lawyer. No matter who hears or learns about a communication, however, the lawyer typically remains obligated not to repeat it.

Professional communication between a lawyer and a client

It is a statutory obligation under Section 126 of the Indian Evidence Act for an advocate to not disclose without the consent of the client any:
  1. Communication to him by the client or vice versa
  2. Contents or Conditions of a document
  3. The advice given to the client, which was obtained or given in the course and for the 'purpose of such employment'.

This phrase means that no privilege attaches to communication to an attorney consulted as a friend. This obligation continues even after employment has ceased. This encapsulates the rule of once privileged always privileged�.

The privilege under Section 126 is subject to certain exceptions i.e. under the following conditions communication can be disclosed:

  1. When the communication was made in furtherance of an illegal purpose
  2. When the attorney gets to know that a crime or fraud has been committed since employment began
  3. When the client gives consent
  4. When the information falls into the hands of a third party
  5. When a lawyer sues the client for professional purpose.

Section 127 of the Evidence Act states that Section 126 applies to:

  • Interpreters
  • Clerks or servants of barristers
  • Pleaders
  • Attorneys
  • Vakils
In the case of Court in its own motion vs. State, Delhi High Court answered the question, whether a child victim should be permitted to waive the privilege of the counsellor? Court held that it can be done if the child does it knowingly and voluntarily and waiver is in the interest of the child provided the reasons for a waiver should be recorded in writing in the order.

In the case of Karamjit Singh v. State, the Court held that one cannot ask for disclosure of any professional communication and documents of attorney and client under the Right to Information.

In the case of Board Of Directors, Y.M.C.A. and v. R.H. Niblett, the Court observed that in a defamation case where the evidence in question is proved to be privileged then the burden to prove not just normal malice but express malice lies on the plaintiff. The Court stated that if the occasion is privileged then the publication by a person 'exercising the privilege to third persons' if it is reasonable and in the ordinary course of business, where communication wasn't possible except in the presence of uninterested people, it is protected. The privilege can't be destroyed merely because third-persons (clerks, typists or copyists, etc.) do not have a legitimate interest in the subject matter.

Privilege cannot be waived by voluntary evidence

Section 128 states that if the client himself presents some evidence regarding privileged communication, it doesn't amount to a waiver of privilege. Summoning the lawyer as a witness by the client doesn't amount to consent to disclose but when the client himself asks questions pertaining to the confidential communication then it amounts to an implied waiver of privilege.

Confidential communications with legal advisers

This section states that no one can be compelled to disclose privileged communication between a client and an attorney. If a client offers to be a witness then the Court can extract from him any communication as it deems necessary. Section 129 prohibits the client from disclosing, unlike Section 126 which prohibits a lawyer. It lifts the restrictions imposed under Section126 partially; it acts as a counterpart of Section126 of the Evidence Act.

Court held in the case of P R Ramakrishnan v. Subbaramma Sastrigal that as per Section129 of the Evidence Act both the clients as well as the attorney aren't under any obligation to spell the privilege communication to any third person.

Stands of Bar Council of India

The Bar Council of India Rules (BCIR) stipulates for all advocates (legal advisers) certain standards of professional conduct and etiquette. Part VI, Chapter II, Section II, Rule 17 of BCIR stipulates that:
An advocate shall not, directly or indirectly, commit a breach of the obligations imposed by Section 126 of the Indian Evidence Act thus reiterating the spirit of Attorney Client Privilege, breach of which will also lead to violation of the Bar Council Rules.

Moreover, laws like Rule 7 and 15 of the BCI Rules on Professional Standards for attorneys and Rule 4.14 and 4.17 of The Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002 for medical practitioners bars the disclosure of privileged communication. Violation of any of these laws is an automatic violation of the right to privacy under Article 21 of the Indian Constitution.

Right to privacy and Privileged Communication

Article 21 of the Constitution of India states, No person shall be deprived of his life or personal liberty except according to the procedure established by law�, it has an encyclopedic ambit. It covers all aspects of life, one of which is Privacy. Right to privacy isn't expressly written in the Indian Constitution but overtime judicial proceedings have shown that it comes under the ambit of Article 21.

The law safeguards the right to privacy by protecting from the disclosure of privileged communication. It takes away the evidentiary value of confidential communication.

Section 122 of the Indian Evidence Act interdicts married couples from disclosing any confidential communication which happens during the marriage. Similarly, sections 126 to 129 of the Evidence Act deal with attorney-client privilege. The concept of privileged communication strengthens the fundamental right to privacy.

In the case of Vishal Kaushik v. Family Court, the Court held that if the conversation between two spouses is recorded by one of the spouses without the knowledge of the other spouse, that evidence will not be admissible in the Court. In fact, this act will amount to a breach of privacy under Article 21 of the Indian Constitution and the spouse who has recorded will be held liable.

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. 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.

Thus, in India, communications between clients and in-house lawyers would generally have to be tested whether the in-house counsel is a full time salaried employee as contemplated under Part VI, Chapter II, Section VII, Rule 49 of BCIR. Further, distinction may have to be made whether the advice sought is in legal or executive capacity.

The Supreme Court in Satish Kumar Sharma v. Bar Council of Himachal 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.

Also, patent agents are not getting privilege under Section 126 of the Act. In Municipal Corporation of Greater Bombay v. Vijay Metal Works 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.

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 and 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 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 once 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 client's 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.

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.

In Memon Hajee Haroon Mohomed v. Abdul Karim 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.

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. 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 attorney's 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 extract 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. 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. 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.

Various legislations oblige the parties of a protected relationship (attorney-client, doctor-patient, husband-wife) to adhere to the rule of privileged communication. The foundation of this is to guard the trust that a client re-poses in an attorney, patient in a doctor and spouses in each other. However, the privilege is not absolute in nature, it is subjected to certain exceptions. The law also provides for punishment in case of its violation.

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.

Written By: Bhaswat Prakash, Student at Ajeenkya DY Patil University, Pune

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