When two people or parties talk or interact with each other privately, who share a protected relationship, it is known as Privileged communication. The communication between them should be confidential, i.e., both the parties are bound not to tell anyone about their communication, which has taken place in private considering their protected relationship. Even the law cannot force both parties to disclose their communication, and if any of the parties reveal, it will come under the legal limitations. Whatever communication has taken place between the two parties will remain between the two of them only, as per privileged communication. The court can compel either of the parties to disclose any communication or ask both parties directly or indirectly related to the communication.
Commonly, different types of relationships where privileged communication exists are-
- Communication between attorney and client;
- Communication between husband and wife;
- The communication of any advice given by a doctor or therapist to his or her patient;
- Communication between priest and parishioner.
The confidentiality of the interaction or the communication is maintained between both the parties who share a protected relationship such as attorney-client, husband-wife, etc., as they enjoy the expectation of privileged communication where no party is allowed to disclose their communication. Still, if they are threatened that some harm will be given to them, then at that time, the exception of this privileged communication protection will disappear.
Protections under Privileged Communication
After the interaction between the attorney and client or other professional relationships like the doctor or patient, the right to protect that communication is on the client. The receiver of that particular communication by the attorney or the doctor in a private place, the obligation lies on the client or the patient to keep that information safe and personal as it is confidential. If they can’t keep that communication protected, they lose their operating license, etc.
The exchange of the information made between two parties that share a protected relationship must be kept controversial even if they exclude some of the case’s relevant facts. In trials, it’s necessary to bring the relevant evidence, but this privileged communication between attorney or client, doctor or patient, or husband-wife is expected. Privileged communication is there to safeguard the privacy clause of some protected relationship.The court cannot compel either spouse to disclose the interaction or exchange of information between them during or in continuation of their legal marriage. These privileged communication rights continue even if the marriage is dissolved to protect the wedding’s general sanctity and the country’s religion. But this protection of privileged communication does not prevent any one party or any spouse from testifying against the other spouse. And now, coming to the doctor-patient relationship, the confidentiality clause between them is that if the patient will not tell accurate or full information about his health, how will the doctor administer his health care properly. So, for that purpose, the communication or the interaction between the patient and doctor is referred to as privileged communication. The relationship between attorney and client is referred to as the same reason as the doctor and the client.
The interaction between the two parties should be made in a private setting to maintain confidentiality between them. The reason to do so is that no other third-person overheard the communication between them. If that particular communication is shared with a third party, then the confidentiality clause will break as the third party does not share any protection with the relationship. However, a person who is an agent of the receiver of the information—an accountant’s secretary, say, or a doctor’s nurse—is generally not considered a third party who jeopardizes the communication’s privileged status.
Condition in which Privileged Communication is not Private
If any one party is causing a threat to another party that they will harm them in the present time or the future, the communication will not be referred to as privileged communication. If there is a lack of protection for children or any other person in spousal communication, the privilege will no longer apply to any threat or harm to the child or spouse. The communication will not be subject to any privilege.
In both the civil and the criminal trial, the admission of the relevant fact is a must. But privileged communication between the two parties is an expectation of that. But in some cases, privileged communication is not good, but it is dangerous because of the following reasons. Privileged communications are not always absolute. For example, in a case, the defendant can use the communication between the accused with his doctor to defend himself in the court proceedings. The court will consider such a request only if the defendant can establish a reasonable probability that important information exists in the communication relevant to the case.
Also, in different jurisdictions, the rules regarding this privileged communication are various, which are also redefined or adjusted in other matters periodically.
Types of Privileged Communication
Privileged communication is of three types:-
- Spousal communication
- Professional communication
- State communication
In the common law, spousal privilege (also called marital privilege or husband-wife privilege) is used in the law of evidence to describe two separate privileges that apply to spouses: the spousal communications privilege and the spousal testimonial privilege.
Spousal communication can be called communication between spouses during their marriage and will be considered privileged communication. Marital communication is the private interaction between a husband and his wife, who is in a protected relationship. Any interaction taken place between married couples is considered a confidential matter, and the court cannot compel them to answer any of their questions about the issue related to their communication. None one of the spouses is allowed to share information related to the subject matter of their communication to any third party, which is made between them within the time of a valid and existing marriage.
This concept is called an expectation of secrecy between husband and wife to maintain the confidentiality of the communication taking place between them.
There are two types of spousal privilege:
Marital Communication privilege:-
The right is given to husband and wife to refuse to testify in a trial about confidential statements made to each other in the marriage relationship.
The Marital Communication privilege, also known as a husband-wife privilege, protects and ensures husband and wife’s privacy in court; it is the right that only the legally married people have. This privilege allows them to refuse to testify any conversation or letter any information that may or can be used against the accused, any spouses in court. The marital privilege is an exception to the general rule that all applicable proof is permissible at trial.
Privileged communication cannot be taken in the trial as relevant evidence to maintain confidentiality. With the marital privilege, the goal is to be free and open with each other. They can share anything they want, which is accepted to strengthen and further the marital relationship.
The essential condition for its use is a legal marriage. Courts will not permit its use by partners who merely live together or by those who have a common-law marriage or a sham, or false marriage—additionally, the communication more likely than not occurred while the marriage existed, not after a divorce. For the most part, the assurance of whether a marriage is lawful relies upon state law.
Testimonial privilege means a right to testify founded on a claim of privilege. Testimonial privilege overrules an observer’s obligation to reveal matters inside the witness’s information, whether at trial or by deposition.
The purpose of the testimonial privilege is to encourage domestic harmony and prevent discord. The privilege also reflects the normal offensiveness of having one spouse testify against the other, and keeps the affirming life partner from picking between perjury, contempt of court, or jeopardizing the marriage.
Unlike the marital communications privilege, the testimonial privilege lasts only as long as a couple is married. An ex-spouse can testify against a previous life partner in a criminal or grand jury proceeding. At the point when the benefit applies, it keeps one life partner from being constrained to testify against the other companion in a criminal case. Either spouse can invoke the privilege to prevent the testimony.
Under Section 126 of the Indian Evidence Act, no barrister, attorney, pleader, or vakil shall be permitted unless, with his client’s express consent, to disclose any communication made to him in the course. And for his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course. And for his professional employment, or to disclose any advice given to his client in the course and for such employment.
Provided that nothing in this section shall protect from disclosure, any such communication is made in furtherance of [illegal] purpose.
Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment, showing crime or fraud has been committed since the commencement of his employment. 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.
Illustrations- A client says to B, an attorney-“I have committed forgery, and I wish you to defend me.” As the defense of a man known to be guilty is not an illegal purpose, this communication is protected from disclosure.
Types of professional communication:- All these communication methods can be grouped into three key categories:
- Verbal / oral communication
- Written communication
- Non-verbal communications
What qualifies as Privileged Communication?
For qualifying as a privileged communication, some conditions need to be fulfilled to make an interaction between two-persons:-
- The interaction should take place between two parties who are in a protected relationship;
- The communication should occur in a private setting or a close space;
- The data conveyed ought not to be revealed to an outsider.
Privileges associated with Legal Advice or Current or Contemplated Litigation
All communications that take place between an attorney and his client comes under the ambit of privileged communication.
The Attorney-Client privilege in India is governed by provisions under,
- Bar Council of India Rules;
- Advocates Act, 1961;
- The Evidence Act, 1872.
There are some relationships which are deemed as protected. They are protected because a person has to place his full confidence on the other and disclose some information which may be damaging to him and his reputation. This is why the rule of privileged communication is necessary as without this rule, a client would always be worried about his lawyer disclosing information against him, or a patient would be worried about his doctor disclosing his medical details. No one would dare to ask for professional advice and no man could safely go to court, to find redressal or to defend himself.
 Privileged Communication-Further Readings, available at https://law.jrank.org/pages/9428/Privileged-Communication.html (Last visited on November 9th, 2020).
 Will Kenton, Privileged Communication, 2nd August, 2020, available at https://www.investopedia.com/terms/p/privileged-communication.asp (Last visited on November 9th, 2020).
 Supra note 1.
BY AKSHITA BANSAL | UPES , DEHRADUN