Legal privilege refers to the legal protection given to communications, documents and advice exchanged between a party and his / her legal professional adviser from being disclosed to court or other persons. In an article published on Live Law - a popular legal forum - our Senior Associate, Rushad Irani, sheds some light on which kind of legally privileged information can be disclosed, and not.
What is Privileged Information?
Privileged information may be construed to be any documents or communication disclosed to a legal professional in his / her professional capacity. This is in alignment with the law governing privilege mentioned under Sections 126 to 129 of the Indian Evidence Act, 1872 ("Evidence Act").
Bar on disclosure of privileged information
The Evidence Act places a strict bar on two types of disclosure of privileged information:
1. By an attorney disclosing any privileged information made to him during the course of his engagement; and
2. By any person from being forced to disclose any privileged information exchanged between such a person and their legal advisor.
The Bombay High Court has held that, Sections 126 and 129 of the Evidence Act protect all communication that takes place between the lawyer and the Client during the engagement of the lawyer.
What comes under Privilege?
There is currently considerable debate as to whether anything prepared by or communicated to an in-house lawyer, general counsel or legal advisor would also be protected as privileged.
The Bombay High Court mentions its decision in 1981 that was taken ahead by the Supreme Court of India in 2001. Read more to find out here.
What are the exceptions to Privilege?
The general rule of privilege has certain exceptions to it as well which include,
1. Under Section 126, such communication or document has been made in furtherance of any illegal purpose and;
2. Fact observed by the lawyer, in the course of his engagement which would show that a crime or fraud has been committed since the commencement of his engagement.
3. Under Section 129 of the Evidence Act, if the person who claims privilege, i.e. the client offers himself as a witness, he may be compelled by the Court to produce and disclose such documents /records, although only for the limited extent to explain any evidence that he has given.