Different Types of Privileged Communication

Communication takes place when some information is exchanged between two or more individuals. When a person communicates with another with the intention of keeping the exchanged information private, itis a confidential communication. People involved in this communication, trust each other to keep the communication private and in confidence. The Indian law protects some types of confidential communication.

Meaning of Privileged Communication

Privileged communication is communication protected by law between entities that cannot be forced to be divulged or used as evidence in court. ¹ Communication is considered privileged only when:

• The relationship between the parties is legally recognized.
• The communication has taken in a private place, where only the parties to the communication are present.

Privileged Communication under the Law

No witness can be compelled to disclose any conversation involved in privileged ² communication. Different types of privileged communication are protected under the law.

1. Communication during marriage.
   Any communication that takes place between a husband and wife is protected as privileged communication. ³The communication between a wife and husband is not protected when the marriage is dissolved. ⁴This is not an absolute privilege. The communication between the husband and wife will be considered as evidence if it relates to a criminal act. ⁵The communication between the wife and husband is protected when it is confidential or sensitive. ⁶The communication is protected even if it is not sensitive or confidential. Where the husband was accused of murder, the wife was called in to give a testimony against the husband, the testimony can relate to the act and conduct of the accused (husband).⁷
2. Affairs of the State
   No information can be disclosed from the unpublished official records which relate to state affairs. ⁸To do so, the permission of the relevant department head is necessary. A privilege is claimed on the documents and other communication by public officials relating to affairs of the state. The privilege should be claimed either by the minister, or his secretary, or by the head of the department. The usual method of claiming the privilege is by filing an affidavit. Where the non-disclosure of certain information has a greater adverse impact on the public interest than its revelation, such communication may not be protected by state privileges.⁹
3. Official communications
   When any communication takes place in the official confidence, the public officer is not compelled to share the same. ¹⁰When a court requires the disclosure of service records of a public official suspected of wrongdoing, the state cannot claim such privileges.¹¹
4. Information as to commission of offences
   No revenue officer or magistrate can be compelled to share any information, which is about the commission of crime.¹²
5. Professional communications
   A pleader, barrister, attorney or vakil are prohibited from disclosing any information shared with them by a client. ¹³Privileged communication between alegal advisor and client shall not be compelled to be disclosed in court. ¹⁴The relationship between a lawyer and client is considered a professional relationship and the communication during this time is privileged. Such communication should have taken place during the course of employment. The communication can only be disclosed when the client gives an express consent for the same. A legal professional is also prohibited from sharing any information contained in any documents.¹⁵
   There are two exemptions made under this provision. The communication can be disclosed:
   • If the intention is of committing an activity which is illegal.
   • If a fraud or crime is committed. This should have occurred in the course of employment.
   The privilege is not waived until the client calls their legal representative totestify. This will entail that the client has agreed to disclose the details of a privileged communication.¹⁶
6. Privileged communication between doctor and patients
   Information given to a doctor remains protected communication, especially when relating to sensitive illnesses. This privilege, however, could be waived if the patient's health is in jeopardy and/or the information is thought to be crucial to the case. The privilege also does not stand when the health condition of the patient affects someone else. For example, the HIV+ diagnosis of a person is important to be brought to the knowledge of their possible future spouse.¹⁷

Exceptions to Privileged Communication

Privileged communication is not absolute. There are certain exceptions to privileged communication. The disclosure can be compelled in the following scenarios:

1. In case of a fraud or crime¹⁸
   When the privileged communication takes place with the intention to commit a fraud or crime in the future, it cannot be protected. If a client seeks legal advice with the aim to commit fraud or to carry out an unlawful act, then it cannot be protected. A lawyer can also not protect a disclosure made by their clients which results in a fraud or a crime.
2. In the case of patient’s health
   A doctor can be compelled by the court in the cases when it is vital to disclose the necessary information. If the patient’s mental state or his health is in question, then the privileged communication between the patient and the doctor will not apply. The case should be directly impactedby the information provided by the doctor and the patient’s health. Such communication is also not protected by law when made to a future possible spouse about diagnosis of HIV+.¹⁹
3. In the case of waiver
   When someone abandons the right of privileged communication, it is called a waiver. This is a voluntary act. When any party to the privileged communication, themselves agree to disclose the information, the court allows the same.²⁰ No objection can be raised in the later stage, after the information is introduced.

Conclusion

Only certain relationships are deemed privileged. They are protected because one must place complete trust in the other and provide facts that could be detrimental to them as well as their reputation. The foundation of this idea is to protect the trust that a client has in a legal professional, a patient in a medical professional, and spouses in one another, and so on and so forth. This provision is critical for maintaining confidentiality among particular relationships and cultivating an environment of trust and honesty.

Article is authored by Shreya Patel, B.A.LL.B (Hons).