What is a privilege communication?
There are certain cases wherein the witness cannot be compelled to disclose any fact. And even if he wants to disclose he is not allowed to disclose that fact that communication is privileged communication. Any witness whether husband or wife, and official communication, related to affairs of state or any communication anything any witness will not disclose that communicating even if he wants to disclose because law doesn’t permit it. Privileged communication is given under Section 121-132 of Indian Evidence Act, 1872.
Privilege communications are of various types:
1. Judges and Magistrate:
S.121 talks about the privilege communication of Judges and Magistrates. The bare reading of this section says that no judge or magistrate can be compelled to answer regarding his own conduct in Court while he was acting in the capacity of Judge or Magistrate. Also regarding anything which came in his knowledge while he was performing the role of a judge or Magistrate.
There are two exceptions to the given section:
1. A judge or magistrate can be compelled to answer any question only by special order of superior court.
2. A judge or magistrate can be examined reading other matters which occurred in his presence while he was acting in his official capacity.
Privileges of Judges and magistrate
Judges and Magistrate are competent witness i.e. they may if so like testify. But they are not compellable to answer any questions as to their conduct in Court as such Judges and Magistrate. Judge means any person who has been officially appointed as a Judge. But it also includes any person who is empowered to give judgement in civil or criminal case.
Judge may waive his privilege or be ordered by the Superior Curt to testify.
S.121 is the privilege of a witness i.e of a judge or magistrate who is to be examined. The Judge or Magistrate can voluntarily waive off the privilege granted by law. Furthermore a Judge or magistrate cannot claim any privilege if he has been specifically order by his superior court.
2. Communication between husband and wife
Under Section 122 protects disclosure of communication between husband and wife. The basic purpose of enacting of this section was that if one of the spouses gives admission of such testimony there is high tendency that it will likely disturb the peace of the family. It will lead to domestic fights and damage the mutual trust and confidence of both the spouses against each other.
The section can be divided in two parts. One part says that if a witness doesn’t want to disclose a communication and law declare that the witness cannot be compelled to disclose it. While the second part talks about a situation where the witness wants to disclose the communication but witness cannot disclose it as it is specifically prohibits by except with the permission of the spouse. The section also applies to communication happening between husband and wife during continuance of marriage between them or even after divorce between them.
1. Ram Bharosey v. State A, 954 SC 704
In this case evidence was given by wife that she saw the accused (her husband) on early hours on 27th May 1952 which is the day of murder. She saw that he came down from rooftop then went to bousha kothri and then had a bath there and came out wearing a dhoti.
Whether this communication is privilege U/S 122? The court held that it is merely the acts and not any communication was made by accused to his wife.
Exceptions to S.122:
There are three exceptions to Section 122. These are:-
1. Evidence by third person:
If the communication between the spouses where a third person was present or which he overheard may be proved by him. The section doesn’t prevent a communication being proved by third person.
2. Waive off of privilege
If the person who is communicating himself waives off privilege. This is so he cannot later claim the protection under this section because he has previously waived off his privilege which was given. Privilege can only be waive off by spouse who made that communication or his/her representative with interest. .
In the case of Vishal Kaushik v. Family Court, AIR 2015 Raj.146, it was held that tape recorded communications between husband and wife if they are recorded without the consent of other spouse it will not be admissible in the court of law and be used as evidence. And it will also amount to violation of right of privacy under article 21 of Indian Constitution.
3. Evidence as to affairs of State
Section 123 mainly talks about two things. (a) document is an unpublished official record relating to affairs of state. (b) the officer of head of department may give or deny the permission for giving the evidence derived from it. On the ground of public policy such evidence cannot be given without the prior permission of head of department.
Also court cannot question his decision. Regarding what amounts to unpublished records it means any record which is not available in public domain is an unpublished record.
There are mainly two questions while dealing with this section:
(a) Whether the document in respect of which privilege is claims is really a document which is unpublished relating to any affairs of state?
(b) Whether the disclosure of the contents of the documents will be against public interest Landmark case:
1. Raghunath v. R, A 1946 L 459
In this case it was held that the question regarding publication is relevant and will always remain relevant. Privilege cannot be ascertained unless it has already been ascertained. So unpublished is essential.
S.124 is somewhat similar to S.124 which we have discussed above. The main difference between the two sections is that is that S.123 deals with the privilege that arises in respect of documents. Whereas in S.124 privilege arises in respect of communication and official confidence.
In simple terms no public officer shall be compelled to disclose any communication which is in public interest. This section mainly focuses on two terms:
1. Compelled to disclose communication
It says that no one can compel the public officer, so there is total discretion on the public officer whether to disclose or not. It totally depends upon the will of the public officer. So the word there in this section is “shall not be compelled”.
Communication can be any communication but it should be made in official confidence. It is so official confidence is necessary but he needs to decide that the communication shouldn’t affect public interest.
1. S. v. Appanna 1962, I And WR 256
It was held that opinion of the public officer is conclusive. He will decide whether privilege is to be claimed or not. But he needs to see whether public interest is being suffered or not. It was also said that a report made by one public officer to another while discharge of his duties will come under the ambit of both S.123 and S.124.
The two main questions in the section 124 are:
1. Whether the communication in question was made to public officer in official confidence or not?
It is the court which will decide whether it was made in official confidence or not. Court has power to take documents and other evidences as given U/S162.
2. Whether public interest will suffer by the injury by disclosure?
That question will be decided by the public officer. He is the sole judge to decide upon the same.
Information as to commission of offence
As per S.125, Any Magistrate or police officer cannot be compelled to say from where he got the information relating to commission of offence. In this section the word used is “shall be compelled” so discretion is upon them. The section further says that No revenue officer shall be compelled to disclose any information relating to commission of offence which is totally against public revenue.
Privilege may be waived
The privilege which is granted under this section can only be waived by the person who has got the privileges under this section. The is the sole decider when he wants to waive off his privilege which is granted to him
Limitations of S.125
1. This section only applies to identity of the identity of the informant and not to the content of his statement. In the case of Majju v. Lachman, 46 A 671, it was clearly held by the court that it only applies till identity of informant and not in the contents of his statement. So police, magistrate or revenue officer totally can claim privilege regarding disclosing the name of the informant. If the identity of the informant is already known and there is no reason for concealment then no such privilege will be available.
2. It is the official duty and also the responsibility of the officers to protect the identity so that some evidence must not get tampered or any danger to his life.
Edited by Megha Jain