Privileged Communication under the Bharatiya Sakshya Adhiniyam, 2023

With the advent of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaced the Indian Evidence Act, 1872, the Indian legal system witnessed a substantial transformation in evidentiary laws. Among the various crucial concepts retained and restructured in the new Act, the doctrine of "Privileged Communication" holds a pivotal place. This principle, designed to protect certain communications from disclosure in legal proceedings, is rooted in public interest and the preservation of confidential relationships.

Sections 128 to 134 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) lay down specific provisions relating to privileged communications, setting out clear exceptions to the general rule of disclosure of evidence.

This article explores the scope, rationale, and legal framework surrounding privileged communication under the BSA, while drawing comparisons with its predecessor and analysing relevant judicial interpretations.

Understanding Privileged Communication

Privileged communication refers to those statements or communications made in a legally protected relationship that are exempt from being disclosed as evidence in court proceedings. Such communications are considered "privileged" because they occur within relationships of trust, such as between a lawyer and client, husband and wife, or official and public servant.

Under the BSA, these are not just evidentiary exceptions—they represent essential safeguards that ensure individuals can communicate freely without fear that their disclosures will be used against them in court.

Communications During Marriage (Section 128)

Section 128 of BSA (previously Section 122 of IEA) provides for privileged communications between spouses, recognising the confidentiality of what one spouse communicates to another during the subsistence of their marriage.

• The law prohibits both compulsion and voluntary disclosure of such communications in court.
• The protection continues even after the dissolution of marriage.
• The rationale is to preserve the sanctity and trust of the marital relationship.

Exceptions (When Disclosure Is Allowed):

Consent: If the spouse who made the communication (or their legal representative) consents.

Litigation Between Spouses: In civil suits (like divorce, maintenance, custody) where both spouses are parties.

Criminal Cases Between Spouses: When one spouse is accused of a crime committed against the other (e.g., domestic violence, cruelty, assault).

Evidence as to Affairs of State (Section 129)

Section 129 of BSA (previously Section 123 of IEA) outlines that:

"No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit."

Section 129 deals with privileged official communications and is intended to protect the confidentiality of sensitive State affairs. It places restrictions on disclosing certain types of government records in a court of law.

 Key Elements of Section 129:

Unpublished Official Records:

• The section applies only to unpublished documents, reports, or records held by the government or its departments.
• These are records not available to the public, typically because they involve sensitive, classified, or strategic information.

Affairs of State:

• Refers to matters involving national security, foreign relations, internal policy, intelligence, or other important government functions.
• The intent is to avoid disclosure that may harm the public interest or State integrity.

Permission from Department Head:

• Such records cannot be used as evidence in court without prior approval of the head of the concerned department (e.g., Defence Secretary, Home Secretary).
• The officer has absolute discretion to allow or deny disclosure depending on whether it would be in the public interest.

Protection of Official Communications (Section 130)

No public officer shall be compelled to disclose any communication that was made to him in official confidence, if in his judgment, the disclosure of such communication would be detrimental to public interest. [Section 130 BSA (Previously Section 124 of IEA)]

This provision upholds the confidentiality of information exchanged within the framework of official duties and ensures that sensitive state matters are not exposed merely because they are relevant to a legal proceeding.

Explanation and Scope

• The term "public officer" includes any individual who is in the service of the government or discharging a public function under statutory authority.
• The communication must have been made to the officer in the course of their official duties and under an obligation of confidence, either expressly or impliedly.
• The privilege is not absolute; rather, it is conditional upon the officer’s satisfaction that public interest would be harmed if disclosure is made.
• This section balances two competing interests: the public's right to a fair trial and the state's interest in maintaining confidentiality for administrative efficiency, national security, diplomatic relations, or law enforcement objectives.

Information as to Commission of Offences (Section 131)

This section (previously Section 125 of IEA) protects certain government officers from being forced to disclose sensitive information during legal proceedings.

What the Law Says:

• Magistrates and police officers cannot be forced to tell the court when they received any information about a crime being committed.
• Revenue officers also cannot be compelled to say when they received any information related to an offence involving public revenue, such as tax evasion or fraud.

Who is a Revenue Officer?

According to the explanation given in the section, a revenue officer means any official who works in any department that deals with the government’s income – for example, officers in income tax, customs, GST, or land revenue departments.

Professional Communications (Section 132)

Under Section 132 of the Bharatiya Sakshya Adhiniyam, 2023 (previously Sections 126 and 127 of Indian Evidence Act), the law grants protection to professional communications made between a legal adviser (advocate) and their client. This provision is based on the principle of legal professional privilege, which ensures that clients can communicate freely with their advocates without fear that their disclosures will later be used against them in court.

Main Provision:

No advocate is allowed to disclose any of the following without the express consent of the client:

• Any communication made to him by or on behalf of the client during the course of his professional service.
• The contents or condition of any document he becomes aware of in the course of that service.
• Any legal advice given by him to the client during that period.

This privilege is essential for maintaining confidentiality and trust between a client and their legal representative.

Exceptions:

However, this protection does not extend to the following:

(a) Any communication made in furtherance of an illegal purpose.

(b) Any fact observed by the advocate in the course of professional service that indicates the commission of a crime or fraud after the professional relationship began.

Importantly, it does not matter whether the client pointed out that fact or not—if the advocate comes to know of such a fact on their own, it is not protected.

Explanation:

The duty of confidentiality imposed on the advocate continues even after the professional relationship ends. This means that the advocate is bound to maintain secrecy even after the case is over or the client stops taking legal advice from them.

Illustration:

(a) A, a client, says to B, an advocate—"I have committed forgery, and I wish you to defend me". As the defence of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure.

Privilege Not Waived by Volunteering Evidence (Section 133)

If any party to a suit gives evidence in the case, whether on their own initiative or otherwise, it shall not be considered that the party has thereby consented to the disclosure of any privileged communication as referred to in Section 132.

Furthermore, if a party to a suit or proceeding calls their advocate as a witness, the party shall be deemed to have consented to such disclosure only if they question the advocate on matters that the advocate would otherwise not be permitted to disclose. 

Section 133 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), closely mirrors the provisions of Section 128 of the Indian Evidence Act, 1872 (IEA)

Confidential Communication with Legal Advisers (Section 134)

The law recognises the sanctity of confidential communications between a person and their legal adviser. Accordingly, no individual can be compelled to disclose in a court of law any confidential exchanges that have taken place between them and their advocate or legal adviser. This protection upholds the principle that full and honest disclosure between a client and their counsel is essential for effective legal representation.

However, this privilege is not absolute. If the person voluntarily appears as a witness in the case, they may be required to disclose such confidential communications—but only to the extent that the court deems it necessary for a proper understanding of the evidence they have given.

The court cannot compel disclosure of any other confidential communications that are not directly relevant to the testimony already presented.

In essence, while the privilege protects the confidentiality of legal advice, it may be partially waived when the individual chooses to testify, but only in so far as is necessary to ensure clarity and truth in the judicial process.

Section 134 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), closely mirrors the provisions of Section 129 of the Indian Evidence Act, 1872 (IEA).

Case Laws

[1] Ram Bharosey v. State of Uttar Pradesh (1954)

In Ram Bharosey v. State of Uttar Pradesh, the Supreme Court upheld the conviction and death sentence of the appellant for the murder of his father and stepmother based entirely on circumstantial evidence. The appellant was last seen near the scene of the crime, was found with blood-stained clothes, and led the police to recover blood-stained ornaments and a weapon (gandasa) from his house shortly after the incident.

The Court excluded inadmissible spousal communications under Section 122 of the Evidence Act (now Section 128 of Bharatiya Sakshya Adhiniyam, 2023 (BSA)] but held that the remaining evidence—motive due to prior family disputes, timing of disappearance, and the condition of the recovered items—was sufficient to prove guilt beyond reasonable doubt. The appeal was dismissed, and the conviction under Section 302 IPC (Section 103 BNS) was affirmed.

[2] Union of India & Ors. v. Sudhir Kumar Roy & Ors.(1963)

In this case, the Orissa High Court dismissed the Union of India's claims of privilege under Sections 123 and 124 of the Indian Evidence Act, 1872 (now Sections 129 and 130 of BSA), over certain official communications sought by the plaintiff in a suit challenging his reversion from a central government post to a lower state post.

The Court held that privilege under Section 123 can only be claimed by the "Head of Department," which, as per Supreme Court precedent, refers to a Minister or the Secretary of a Department, not subordinate officers like the National Savings Commissioner or the Collector.

It further ruled that once documents have been shown or copies given to a party, they lose their "unpublished" or "undisclosed" status, nullifying the privilege. The revisions were thus dismissed, affirming the trial court’s order for disclosure.

Conclusion

Privileged communication under the Bharatiya Sakshya Adhiniyam, 2023, upholds the foundational principle that certain relationships, such as between advocates and clients or public officers and the state, require confidentiality to function effectively. By shielding specific communications from disclosure in legal proceedings, the law protects individual rights, fosters trust in professional relationships, and ensures the integrity of legal advice and public administration.

At the same time, it carefully balances this privilege with the interests of justice by carving out clear exceptions, especially in cases involving illegal acts or fraud. As the legal landscape evolves, especially in the digital era, the doctrine of privileged communication remains a cornerstone of procedural fairness and ethical legal practice in India.

References

1. Bharatiya Sakshya Adhiniyam, 2023 
2. Indian Evidence Act, 1872
3. Ram Bharosey v. State of Uttar Pradesh, AIR 1954 SC 704
4.  Union of India & Ors. v. Sudhir Kumar Roy & Ors., AIR 1963 Ori 111