Privileged communication of a witness refers to the right of a witness to withhold certain evidence in specific situations. The Indian Evidence Act[1] outlines circumstances where certain individuals cannot be forced to testify or provide evidence. These individuals include:

Judges and Magistrates - Section 121:

Judges or magistrates cannot be compelled to answer questions regarding their own conduct in court or anything they became aware of while acting in their capacity as a judge or magistrate. There is an exception to this rule, and they can be compelled with a special order from the Supreme Court. They may be examined for events that occurred in front of them while performing their official duties.

Examples:

• If a person claims during a trial that the cross-examination was not conducted properly in the presence of the presiding officer, the presiding officer cannot be forced to answer the question unless there is a special order from a Superior Court.
   
• If a person is accused of attempting to murder a court officer during his trial before a Sessions Judge. In this case, the Sessions Judge may be examined as a witness regarding the incident.

Communications During Marriage - Section 122:

Section 122 addresses the protection of communications made during marriage, stating that a married person cannot be compelled to disclose any communication received from their spouse or ex-spouse during the marriage. They are not allowed to reveal such communications without the consent of their spouse or ex-spouse, even if they are willing to do so.

Exception:

1. In a suit between married persons.
2. In proceedings where a married person is being prosecuted for a criminal act committed against the other.
3. If the person who made the communication or their representative gives free consent.

In the case of Nawab Howladar vs. Emperor[2], a widow sought to act as a witness and disclose communications made by her deceased husband. The court ruled that for such communications to be admissible as evidence, the consent for disclosure must be explicitly expressed and cannot be implied. If there is no representative in interest, obtaining consent becomes impossible, rendering such communication entirely inadmissible. The court clarified that a widow is not considered a representative in the interest of a deceased husband and, therefore, cannot give consent. Furthermore, the court emphasized that communications between spouses are protected only if they occurred during the marriage, excluding conversations before or after the dissolution of marriage. Any communication made before marriage or after its dissolution is not covered by this provision. In the case of Vishal Kaushik v. Family Court & Another[3], the court ruled that if one spouse records a conversation with the other without their knowledge, such evidence is inadmissible in court. This act constitutes a breach of privacy under Article 21 of the Indian Constitution, and the recording spouse can be held liable. In Bhalchandra Namdeo Shinde v. The State of Maharashtra[4], the wife was allowed to testify against her husband for alleged murder, focusing on his conduct and actions rather than their communications. However, this privilege doesn't apply in disputes between married couples or when one is prosecuted for a crime against the other. If the party making the communication consents to its disclosure by waiving this privilege, the evidence can be presented in court.

Evidence as to Affairs of State - Section 123:

Under Section 123, a person is prohibited from providing evidence derived from unpublished official records related to affairs of state unless there is permission from the head of the concerned department.

Official Communications - Section 124:

According to Section 124, an officer cannot be compelled to disclose any privileged communication made to him in official confidence if he believes that such disclosure would harm the public interest.

Information as to the Commission of Offenses (Secret Informants) - Section 125:

Section 125 specifies that a magistrate or a police officer cannot be forced to disclose how they obtained information about the commission of a crime. Additionally, it states that a Revenue Officer cannot be compelled to reveal how they received information about the commission of any offense against public revenue.

Professional Communication - Section 126-129:

Section 126 pertains to professional communication and states that no advocate or legal advisor is allowed to disclose any communication made to them in the course and for the purpose of their employment, unless with the express consent of the client. Section 127 extends this provision to interpreters, clerks, and servants of the advocate or vakils. In the case of P R Ramakrishnan v. Subbaramma Sastrigal[5], the court determined that, according to Section 129 of the Evidence Act, both the client and the attorney are not obligated to share privileged communications with any third party. Privileged communication is only recognized if it occurs during the existence of the attorney-client relationship.

This implies that no privilege is extended to communications with an attorney consulted in a personal capacity. The obligation to maintain confidentiality persists even after the termination of the attorney-client relationship. Section 129 also specifies that the attorney cannot disclose the contents of documents learned during employment, ensuring the protection of client information even after the conclusion of the professional engagement.

The privilege granted by Section 126 has certain exceptions, allowing disclosure in the following circumstances:

1. When the communication was made to further an illegal purpose.
2. When the attorney learns of a crime or fraud committed during the course of employment.
3. When the client provides consent.
4. When the information is obtained by a third party.
5. When a lawyer sues the client for professional reasons.

In the case of Karamjit Singh v. State[6], the Court emphasized that seeking disclosure of professional communications and documents between attorney and client is not permissible under the Right to Information.

Other Privileged Communications
Doctors and Psychologists:
All information exchanged between a doctor and a patient, known as doctor-patient confidentiality, is protected. Breaching this confidentiality can lead to the revocation of a doctor's license by the Medical Council of India. Patient information is considered part of the right to privacy under Article 21 of the Indian Constitution, and doctors are not obliged to disclose it to third parties.

Exceptions include court orders or disclosure to public health authorities in cases of highly contagious diseases, where there is a serious risk to the community. The Supreme Court, in Mr. X v. Hospital Z[7], ruled that public interest can override doctor-patient confidentiality in certain cases, such as informing a spouse about the partner's HIV-AIDS status.

Religious and Spiritual Advisers:
Known as priest-penitent privilege, this communication involves a person confessing sins to a priest. In the Roman Catholic Church, priests are prohibited from disclosing confession details. Such communications are considered privileged, and disclosure can lead to consequences for the priest. While recognized in some countries, this privilege is not granted under Indian law.

Journalists:
Also known as Reporters Privilege or Press-Source Protection Privilege, this communication protects journalists from revealing their sources. In India, The Press Council of India Act[8], 1978 covers this privilege. Section 15(2) of the Act ensures that no manager, writer, or news organization can be compelled to disclose the source of any news published in their media.

Conclusion
Privileged communication involves confidential exchanges within legally protected relationships. Once such communication is disclosed to a third party, its privileged status is lost. The principle of privileged communication prohibits a court from compelling individuals in these protected relationships to reveal details of such communication.

This principle is rooted in safeguarding the trust placed by clients in attorneys, patients in doctors, and spouses in each other. Legal provisions outline penalties for violating this privilege. However, it is not absolute, as certain exceptions exist. Violations may occur in cases specified by statutes or through court decisions in Indian jurisprudence.

End-Notes:

• The Indian Evidence Act, 1872, § 121, 122, 123, 124, 125, 126, 127, 129.
• Nawab Howladar v Emperor (1913) ILR 40 Cal 891
• Vishal Kaushik v Family Court & Another Civil Writ Petition No.17485/2012
• Bhalchandra Namdeo Shinde v The State of Maharashtra, 2003 (2) ALD Cri 84; 2003 BomCR Cri; 2003 (2) MhLj 580
• P R Ramakrishnan v. Subbaramma Sastrigal AIR 1988 KERALA 18
• Karamjit Singh v. State
• Mr. X v. Hospital Z
• The Press Council of India Act, 1978, § 15(2) (India)