By Sachika Vij
Published on: December 04, 2021 at 16:20 IST
Introduction
Privileged as the name suggests is something having special rights or immunity and so are Privileged Documents under Code of Civil Procedure, 1908. Cases usually require the clients to share a lot of confidential information and documentations to their attorneys for optimum legal assistance and the advice provided by the attorney to the client be it in written or oral forms creates a privileged situation to protect such substance from being shared as the advantages to the opposing party.
As you can claim privilege, you don’t have to show a document to the opposing party during the disclosure of documents stage of litigation. You can only utilise papers that you have disclosed at trial, thus you may choose to waive (abandon) your privilege for a certain document. This notion is mainly founded on the premise of an effective and fair trial, and hence guarantees right-seeking acts are afforded ample protection. People would be deprived of legal aid if privilege did not exist. No one would dare to discuss the specifics of their truth with their legal counsel in complete openness.
Origin of Privileged Documents
Following developments in English law, India acquired the notion of privileged papers. This was in regards to the other party’s voluntary non-disclosure of a few papers before to the start of the trial. These documents have to meet a set of criteria set by the judges. In England, this idea was quickly embraced for civil proceedings. This idea came from English law, where some broad and open-ended concepts were implemented exclusively on the basis of judicial discretion.[i]
Why Privileged Documents Exist?
The Supreme Court said in Maneka Gandhi Vs Rani Jethmalani[ii] that everyone has the right to a fair trial, and that in order to attain such a right, one may require the assistance of an attorney.
To point out that major reasons for the existence of Privileged Documents under Code of Civil Procedure are:
- To prevent confidentiality and exclusiveness of one of the parties getting affected by sharing of said information.
- To protect rights and ensure free and fair trial to the parties.
- To make sure that opposing party doesn’t get any undue or advantageous benefit in the case,
- To assure that the case is solved in lines to natural justice.
What includes Privileged Information?
The Indian Evidence Act of 1972 protects professional communications between attorneys and clients as private communications. Section 126 of the Indian Evidence Act prevents attorneys from revealing information to third parties unless they have the client’s specific permission. Any such contact or document exchange should have occurred within the course of their employment. Such information to the Attorney’s by the client includes:
- Any communication made to them by their client,
- The contents of any documents exchanged between them and their clients, and
- Advice provided by them to their client.
Communications made in furtherance of any criminal purpose, or communications that reveal a crime was committed since the attorney’s employment began, are not protected by the attorney-client privilege.
The Bombay High Court stated in Larsen & Toubro Limited Vs Prime Displays (P) Ltd (2003) that the privilege that attaches to a document created in anticipation of litigation is protected by Privilege. [iii]
The Bombay High Court cautioned in Municipal Corporation of Greater Bombay Vs Vijay Metal Works[iv] that advice that is executive in nature would not be protected, which means that advice given by an attorney to a client that has no real or substantial connection to any law would be considered non-legal communication. Non-legal communications, such as business advice, would not be protected under the privileged communications act as they are out of scope and purpose of Attorney’s profession.
In case of E-mails, the attorney-client privilege ensures the confidentiality of e-mails transmitted by clients to their counsel. In order to gain the claim to privilege, courts have frequently found that attachments to E-mails must fulfil the characteristics of a private document separately. The privilege of that document is forfeited whenever the e-mail communication is forwarded to a third party. To increase the likelihood of acquiring the privilege, the attachment should be labelled “Confidential” or “Protected by Attorney-Client Privilege.” It should also be noted that the attachment is being provided to obtain legal advice and should not be sent to anybody else without the sender’s permission. [v][vi]
Identification of Privileged Documents
The idea of privilege originated and existed in English law, when judicial discretion was used to apply certain broad and open-ended concepts. This was in regards to the other party’s voluntary non-disclosure of a few papers before to the start of the trial. These documents have to meet a set of criteria set by the judges. In England, this idea was quickly embraced for civil proceedings. With a few modifications, India embraced this legal principle as well.
As far as identifying such documentation is concerned, any document produced to the attorney before signing and instituting suit may not be a part of Privileged Documentation. However, any documentation or even consultation by the Attorney provided after institution of case can be deemed to part of Privileged Documentation and any claim to maintain confidentiality and secrecy of such document can be instated as fit in the eyes of law. This may vary from case to case depending totally on factual circumstances of the particular case.
In the case of Dr. Veerasekaran Vs State of Tamil Nadu[vii], it was held by the court that a document that was a privileged document between the attorney and his client and therefore it was not admissible in the court.
Exceptions
There are a few instances under which privilege immunity does not apply.
Communication used to aid in the commission of unlawful crimes. Facts such as those noticed that demonstrate the commission of a crime or fraud since the start of employment.
This section’s protection/privilege does not apply to an order to produce documents issued under Section 91(3) of the Code of Civil Procedure, 1908. Documents should be produced under Section 162 of the Indian Evidence Act if such a circumstance arises.
If the document’s secrecy is compromised. Because it only applies to attorney-clients, counsel obtained in the position of a friend will not be protected.
Waiving Of Privilege
In Gurunanak Provisions Stores Vs Dulhonumal Savanmal[viii],Gujarat High Court held that privilege can be abandoned when the client desires it. The Supreme Court in various instances observed that a waiver might be explicit or oblique. As a waiver indicates a desire to give up a right, the person doing the act must be aware of the right in question waived, as well as the consequences of such a decision. As a result, the purpose to waive in the absence of an express waiver can either be inferred from acquiescence or suggested by the person’s actions.
The Indian Evidence Act, Section 126, allows for waiver with the “express consent” of attorney-client privilege within the context of a customer, a phrase that has yet to be defined. The Indian Evidence Act is a statute that governs the admissibility of evidence Furthermore, there is a scarcity of resources. Although in India, there is very limited jurisprudence on this subject.
Conclusion
After learning about all of these facts, it’s easy to see how important the notion of privilege is for conducting a fair and effective trial. If such conversations were not protected, no one would dare to see a professional counsel in order to defend himself or enforce his rights, and no one could safely enter a courtroom to seek redress or defend himself. Even if the non-disclosure of documents owing to privilege obstructs the truth’s operation, it is critical in the legal sector. Article 20 (3) of the Indian Constitution protects a person from self-incrimination. As the spirit is enshrined in our Constitution, it is only reasonable that legal mechanisms supporting this exist.
ABOUT THE AUTHOR
This article is written by Sachika Vij , a student, studying at Dr. Ram Manohar Lohiya National Law University, Lucknow. The Author is in her first year and has recently started her law school journey. She owns a keen interest in understanding and penning down her opinions and has a special interest in getting adept at writing and blogging.
Edited by: Aashima Kakkar, Associate Editor, Law Insider
References
- “Commercial Courts Act, 2015 contd.: Important changes in provisions of Can PC | Indialaw Blog”.
- Understanding claims of privilege and how privilege can be lost
- An analysis – Litigation, Mediation and Arbitration
[i] SAH, A., n.d. Interrogatories and Privileged Documents: A Discovery Device in Civil Suit. (Last visited on 11 November 2021)
[ii] Maneka Gandhi Vs Rani Jethmalani 1979 AIR 468
[iii] Larsen & Toubro Limited Vs Prime Displays (P) Ltd 2002 (5) BomCR 158
[iv] Municipal Corporation of Greater Bombay Vs Vijay Metal Works AIR 1982 Bom 6
[v] Bhardwaj, A., 2020. All you need to know about Privileged documents under CPC – iPleaders. (Last visited on 11 November 2021)
[vi] Legalraj.com. 2018. Privileged Documents Under CPC (Last visited on 11 November 2021)
[vii] Dr. Veerasekaran Vs State of Tamil Nadu CIVIL APPEAL NO.8626 OF 2009
[viii] Gurunanak Provisions Stores Vs Dulhonumal Savanmal And Ors AIR 1994 Guj 31