Privileged communications

1. Communications during marriage: section 128

Section 128 (old s.122): no person who is or has been married shall be compelled to disclose any communication made to him during marriage by his spouse; nor shall he be permitted to disclose it, unless the person who made it, or his representative in interest, consents. The exceptions are suits between the married persons, and proceedings in which one spouse is prosecuted for a crime committed against the other.

• Only communications are protected, not acts. A wife can testify to what she saw her husband do (that he came home with blood-stained clothes), but not to what he told her about it.
• The communication must be made during a valid marriage. One made before the marriage or after a divorce is not privileged.
• The privilege survives the end of the marriage (“is or has been married”) for communications made while it lasted.
• The privilege belongs to the spouse who made the communication; only his consent can lift the bar on disclosure.
• A third person who overheard the communication may prove it; the section binds only the spouses.

In M.C. Verghese v. T.J. Ponnan, 1968 INSC 300, AIR 1970 SC 1876, a husband wrote letters to his wife defaming her father; the father, after obtaining the letters from her, prosecuted the husband for defamation. The Court held that the letters were communications during marriage within section 122, that the protection continued although the marriage had since been dissolved, and that the wife could not be permitted to disclose them without the husband’s consent.

2. Affairs of State and official communications: sections 129 and 130

Section 129 (old s.123): no one shall be permitted to give evidence derived from unpublished official records relating to affairs of State, except with the permission of the head of the department, who may give or withhold it as he thinks fit. Section 130 (old s.124): no public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interest would suffer.

The Court, not the department, decides whether the document relates to affairs of State. In State of Punjab v. Sodhi Sukhdev Singh, 1960 INSC 200, AIR 1961 SC 493, the Court held that the claim must be made by the head of the department by affidavit, that the Court determines the preliminary question whether the document relates to affairs of State, and that if it does, the head of the department decides whether disclosure would injure the public interest. In State of U.P. v. Raj Narain, 1975 INSC 14, (1975) 4 SCC 428, a claim of privilege was made over the “Blue Book” of rules on the security of the Prime Minister. The Court held that it may inspect the document under section 162 (now 165) to decide whether the claim is sound, and that the foundation of the privilege is the injury disclosure would cause to the public interest, which the Court must weigh against the interest of justice. Section 165(1) proviso keeps a separate absolute bar: no Court can require production of communications between the Ministers and the President.

3. Information as to offences: section 131

Section 131 (old s.125): no Magistrate or police officer can be compelled to say from whom he got information about the commission of an offence, and no revenue officer can be compelled to say from whom he got information about an offence against the public revenue. The purpose is to protect informers, without whom detection would suffer. (The printed text of the Adhiniyam reads “when he got”; the old section said “whence,” meaning from where or from whom, and that is how the privilege is understood.)

4. Advocate and client: sections 132 to 134

Section 132 (old ss.126 and 127) bars an advocate, unless the client expressly consents, from disclosing

• any communication made to him in the course and for the purpose of his service as advocate, by or on behalf of the client;
• the contents or condition of any document he became acquainted with in the course of that service; and
• any advice given by him to the client in that service.

The proviso removes protection from (a) any communication made in furtherance of an illegal purpose, and (b) any fact observed by the advocate in the course of his service showing that a crime or fraud has been committed since the commencement of his service, whether or not his attention was drawn to it (s.132(2)). The obligation continues after the service ends (Explanation). Section 132(3) extends the rule to interpreters, and to clerks and employees of advocates.

The illustrations are the core of every answer:

• A client says “I have committed forgery and wish you to defend me.” Protected: defending a man known to be guilty is not a criminal purpose.
• A client says “I wish to obtain possession of property by a forged deed; please sue on it.” Not protected: made in furtherance of a criminal purpose.
• An advocate defending a client for embezzlement notices a new entry in the account book made after his engagement. Not protected: a fraud committed since the commencement of his service.

Section 133 (old s.128): a party does not waive the privilege by giving evidence himself; if he calls his advocate as a witness, he waives it only if he questions him on matters which the advocate could not otherwise disclose. Section 134 (old s.129): a person cannot be compelled to disclose confidential communications with his legal adviser, unless he offers himself as a witness, and then only so far as necessary to explain evidence he has given. Section 132 binds the advocate; section 134 protects the client.

5. Documents: sections 135 and 136

Section 135 (old s.130): a witness who is not a party cannot be compelled to produce his title-deeds, a document by which he holds property as pledgee or mortgagee, or a document that might criminate him, unless he has agreed in writing to produce them. Section 136 (old s.131): no one can be compelled to produce documents or electronic records that another person would be entitled to refuse to produce if they were in his possession, unless that other person consents. The BSA adds electronic records to this section.

6. Incriminating answers: section 137

Section 137 (old s.132): a witness is not excused from answering a question relevant to the matter in issue on the ground that the answer may criminate him or expose him to a penalty or forfeiture. In return, the proviso gives protection: no answer he is compelled to give shall subject him to arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by that answer. The section applies to witnesses, not to an accused, who is protected by Article 20(3) and cannot be compelled to be a witness against himself.

7. Problems

(a) Sita told Ram in 1988 that she had stolen her neighbour’s ornaments. They married in 1989. In 1992 Sita is prosecuted for the theft and Ram is called as a witness. Can he disclose what she told him?

Issue. Whether section 128 protects the statement. Law. Section 128 protects only communications made during marriage; section 126(2) makes a spouse a competent witness in criminal proceedings. Application. Sita’s statement was made in 1988, before the marriage in 1989. It was not a communication between spouses at all when made, and the later marriage does not turn it into one. Conclusion. Ram is competent and may disclose the statement; the privilege does not apply. It would be different if she had told him after the wedding.

(b) A client tells his advocate B: “I wish to murder C; I request you to defend me afterwards.” Is the communication protected?

Issue. Whether the proviso to section 132(1) applies. Law. Section 132(1) and proviso (a); illustrations (a) and (b). Application. The communication is about a crime yet to be committed, and the client seeks the advocate’s service as part of the plan. That is not a request to defend him for a past act, as in illustration (a), but a communication made in furtherance of a criminal purpose, like illustration (b). Conclusion. It is not protected; B may disclose it, and should, to prevent the crime. Had the client said “I have murdered C, defend me,” it would be protected.

How this is examined

Long answers: “Explain the protection given to communications between husband and wife and between client and advocate” (June 2025), “Some witnesses cannot be compelled to disclose communications. State and explain their privilege” (June 2025, Law of Evidence), and “Scope of privileged communications between advocate and client” (February 2025). Both problems above are set papers. In the long answer go section by section from 128 to 137 and use the illustrations to section 132.