Professional communication between a legal adviser and a client is accorded protection under the Indian Evidence Act 1872 (the Act), the Advocates Act 1961 (the Advocates Act) and the Bar Council of India Rules (the BCI Rules).
Sections 126 to 129 of the Act is a codification of the principles of common law on professional communications between attorneys and clients. Any person who seeks advice from a practising advocate, registered under the Advocates Act, would have the benefit of the attorney-client privilege and his or her communication would be protected. Attorneys cannot, without the express consent of the client:
There are certain limitations to the privilege and the law does not protect the following from disclosure:
Further, under section 129 of the Act, no one shall be compelled to disclose to the court any confidential communication that has taken place between him or her and his or her attorney, unless they have offered themselves as a witness, in which case they may be compelled to disclose any communication as may appear to the court necessary to be known in order to explain any evidence that they have given, but no other.
Communications between an attorney and client are privileged even if they contain information from third parties. Prohibition of disclosure also extends to any interpreters, clerks or servants of the attorney. While the attorney-client privilege continues even after the employment has ceased, there is no privilege to communications made before the creation of an attorney-client relationship (Kalikumar Pal v Rajkumar Pal 1931 (58) Cal 1379).
The above prohibitions on disclosure of attorney-client communications are further bolstered by the provisions of the BCI Rules enacted under the Advocates Act, which govern the conduct of advocates in India.
The BCI Rules stipulate certain standards of professional conduct and etiquette for all attorneys. These provide that ‘An advocate shall not, directly or indirectly, commit a breach of the obligations imposed by section 126 of the Act’, thus reiterating the spirit of attorney-client privilege (Rule 17, Chapter II, Part VI).
Further, Rules 7 and 15 of the BCI Rules on An Advocate’s Duty Towards the Client provides as follows:
A breach of the above Rules would subject an advocate to disciplinary proceedings. In view of the above, privileged communication between an attorney and a client are not admissible as evidence.
Since the law on privilege is governed by the Act, one (possibly unintended) consequence is the argument that attorney-client communications are strictly not protected from law enforcement agencies in the course of investigations. Having said that, any privileged material, if produced, may not be admissible as evidence in court proceedings.
In-house and outside counsel
Describe any relevant differences in your jurisdiction between the status of private practitioners and in-house counsel, in terms of protections for attorney-client communications.
The issue regarding the position of an in-house counsel on the question of attorney-client privilege in India is not free from doubt. This question has been the subject matter of judicial interpretation. In this regard, the relevant provisions of law in this regard are as under:
Section 2(a) of the Advocates Act defines advocate as an advocate entered in any roll under the provisions of the Act.
Section 29 of the Advocates Act states that only advocates are entitled to practise the profession of law in India, which has been judicially defined to include:
Rule 49 of the BCI Rules states that an advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, as long as he or she continues to practise and shall, on taking up any such employment, disclose the fact to the Bar Council on whose roll his or her name appears, and shall thereupon cease to practise as an advocate so long as he or she continues in such employment.
It is therefore often argued that an in-house lawyer (ie, one who draws a salary) cannot practise as an advocate until such time that he or she is in full-time employment (Sushma Suri v Government of National Capital Territory of Delhi (1999) 1 SCC 330).
The Supreme Court of India clarified this question of law in Satish Kumar Sharma v Bar Council of Himachal Pradesh (2001) 2 SCC 365. On whether a salaried employee can be an ‘advocate’ under the Advocates Act, the court held:
The test, therefore, is not whether such person is engaged on terms of salary or by payment of remuneration, but whether he is engaged to act or plead on its behalf in a court of law as an advocate. In that event the terms of engagement will not matter at all . . . If the terms of engagement are such that he does not have to act or plead, but does other kinds of work, then he becomes a mere employee of the Government or the body corporate. Therefore, the Bar Council of India has understood the expression advocate as one who is actually practicing before courts which expression would include even those who are law officers appointed as such by the Government or body corporate.
However, the above distinction between lawyers who are engaged to act or plead as advocates and lawyers who are employees does not materially alter the position of law in respect of attorney-client privilege. This has been clarified by the Bombay High Court in the following cases:
It is, thus, clear that, even according to the applicant, in order that an advice given by an internal legal department of the applicant becomes entitled to protection, under Section 129, that advice must be given by a person who is qualified, to give legal advice.
This observation appears to indicate that where the in-house counsel would, save for his or her employment with the concerned litigant, be otherwise qualified to give legal advice, then privilege under sections 126 and 129 of the Act would attach itself to advice given by that in-house counsel. The Court in Larsen & Toubro, however, did not make any finding on this issue, owing to lack of pleadings on the issue. In Larsen & Toubro, the Court also permitted a claim of privilege in the case of certain documents, which included communications between company and in-house counsel, but solely on the ground that the same had been created in anticipation of litigation.
Identify and describe your jurisdiction’s laws, regulations, professional rules and doctrines that provide protection from disclosure of tangible material created in anticipation of litigation.
All materials created (tangible or intangible) and communication exchanged between a client and attorney in anticipation of litigation will be privileged communication (Larsen & Toubro). This includes communication for the purpose of obtaining advice for the litigation; for obtaining or collecting evidence to be used in the litigation; and for obtaining information that will lead to such evidence, drafts of notices, pleadings and so forth exchanged between the attorney and the client.
Information called for by the client and provided by an employee or a third-party agent, on the request of, and for the purpose of submission to, the attorney may also be protected (Woolley v North London Railway (1868-1869) LR 4 CP 602).
However, communication between the employees of the client in the ordinary course of business, which may have utility for anticipated litigation, is not protected. Accordingly, there is no protection accorded to the following:
Recent case law
Identify and summarise recent landmark decisions involving attorney-client communications and work product.
In Vijay Metal Works, the Bombay High Court held that a salaried employee who advises his or her employer on legal questions would be afforded the same privileges and protections under sections 126 and 129 of the Act as afforded to practising advocates.
In Larsen & Toubro, a petition for winding up filed by the respondents against the petitioner company, the Bombay High Court held in favour of the petitioner company that attorney-client work in anticipation of litigation is entitled to protection under sections 126 and 129 of the Act.
The Right to Information Act 2005 (the RTI Act) enables Indian citizens to access information held by public authorities. This has raised interesting questions about attorney-client privilege as grounds for refusing to disclose professedly public information in the hands of public authorities. In Mukesh Agarwal v Public Information Officer, Reserve Bank of India [2012] CIC 11210, the Central Information Commission (CIC) held that while there may be a fiduciary relationship in respect of communication from the client to his or her attorney, there is no fiduciary relationship in respect of communication from the attorney to the client when the client is a public body with public responsibility under the RTI Act. Section 8.1(e) of the RTI Act excludes from disclosure of information available to a person in his or her fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information. The CIC in this case held that there was a larger public interest warranting disclosure, and accordingly ruled in favour of the citizen seeking information.
The same principle was applied by the CIC in 2015, in Alok Srivastava v CPIO, English & Foreign Language University, where the client (being a public university with an aforementioned public responsibility) was directed to disclose material information as there was a public interest that outweighed the protected interest. These CIC cases show that traditional attorney-client privilege does not apply to governmental entities if the exception provided in section 8.1(e) of the RTI Act applies.
In The Superintendent, High Court v The Registrar, Tamil Nadu Information Commission and M Sivaraj, 2010 (5) CTC 238, it was held that even though the office of the public prosecutor is a public authority, the Act only requires the public prosecutor to furnish such information, which is available to him or her and capable of being furnished, subject to section 8(1)(e) of the Act. Here, the public prosecutor, bound by attorney-client privilege to not disclose information provided to it by the State of Tamil Nadu, directed a citizen seeking information to approach the State of Tamil Nadu directly. The Madras High Court, which was approached in this connection, held that:
Instead of asking the [Public Prosecutor], who holds such an information in the capacity of counsel, the petitioner is very well entitled to approach the client, ie, the State of Tamil Nadu directly for getting such information.
In Cecilia Fernandes v State represented by the Director General of Police Goa and Anr, Criminal Miscellaneous Application No. 9 of 2005, the Bombay High Court held that the right to consult a legal practitioner under article 22(1) of the Constitution of India could only be exercised meaningfully in confidence. Thus, a police officer, while entitled to stay within a certain distance of an accused, cannot insist on being within hearing distance so as to prevent an accused from instructing his or her lawyer in confidence.
Attorney-client communications
Describe the elements necessary to confer protection over attorney-client communications.
Section 126 of the Act prohibits an attorney from disclosing an attorney-client privileged communication. The communication may be of any form and nature, verbal or documentary. It even covers facts observed by an attorney in the course and purpose of the attorney-client relationship. The elements necessary to confer protection are:
Section 129 of the Act provides protection to a client from being compelled to disclose any ‘confidential communication’ with his or her legal professional adviser. The scope of attorney-client privilege under this section extends to all communications, oral or written. Based on observations in case laws on this issue, it appears that for any communication to qualify as being privileged under section 129, there are two tests that have to be satisfied, namely:
To claim privilege, the communication must be of a private and confidential nature, and must have been provided sub sigillo confessionis (ie, in confidence). Where the communication is made in the presence of third parties, the court will examine whether the person intended it to be confidential or not. The position occupied by the third party and whether the third party had the same interests is relevant.
In Bhagwani Choithran v Deoram, AIR 1933 Sind 47, a client made a statement to his attorney in the presence of the client’s friends. The court held that since the friends occupied more or less the same position as the client, and had the same interests, privilege was not destroyed; however, the court held that it could be evidence that communication was not being made in confidence.
In Memon Hajee v Moulvi Abdul (1878) 3 Bom 91, the defendants, in the presence and within the hearing of the plaintiff, had communicated information to their attorney who was at the relevant time also the attorney for the plaintiff. This information was held to be not confidential in light of the conduct of the defendants, and given that the statements were made to the attorney not exclusively in his character as attorney for the defendants but also as attorney for the plaintiffs.
Describe any settings in which the protections for attorney-client communications are not recognised.
Under section 129 of the Act, no one shall be compelled to disclose any confidential communication to the court, which has taken place between a client and his or her attorney, unless the client offers him or herself as a witness in which case he or she may be compelled to disclose any such communication as may appear to the court necessary to be known in order to explain any evidence that he or she has given, but no other.
Any fact observed by any attorney in the course of his or her employment, showing that any crime or fraud has been committed since the start of his or her employment is not accorded protection under the Act. The fact that the attention of the attorney was or was not directed to such fact by or on behalf of his or her client is not material in this regard.
Further, under section 91 of the (Indian) Code of Criminal Procedure, a court can compel the production of any document, and the person in whose possession it is, if the document is necessary or desirable for the purpose of any inquiry, trial or other proceeding. The court in Chandubhai v State, AIR 1962 Guj 290, held that the protection against production or disclosure, however, does not extend to any original document that might have come into the possession of an attorney from his or her client. The attorney is but the agent of the client to hold the document and if the client is compellable to produce the document, there is no reason either on principle or authority on which the attorney can refuse to produce the document. The document handed over to the attorney by the client cannot be said to be privileged under section 120 of the Act unless the document contains any communication made to the attorney by the client in the course and for the purpose of the engagement as an attorney. The letter of which production was sought in the present case from the attorney of the accused was obviously not a letter in respect of which any privilege could be claimed by the attorney of the accused under section 126 of the Act.
Who holds the protection?
In your jurisdiction, do the protections for attorney-client communications belong to the client, or is secrecy a duty incumbent on the attorney?
Section 126 of the Act prohibits an attorney from disclosing attorney-client communications, without the express consent of the client. Therefore, the client may release the attorney from his or her obligation to maintain secrecy. However, in the absence of express consent, the attorney has a duty to maintain secrecy. If the attorney fails in his or her duty and discloses confidential information, that information may be held inadmissible (Bakaulla Mollah v Debiruddi Mollah (1911-1912) 16 CWN 742 (Cal)).
Underlying facts in the communication
To what extent are the facts communicated between an attorney and a client protected, as opposed to the attorney-client communication itself?
The facts between an attorney and a client are privileged as far as they are exchanged after the attorney’s engagement and subject to the exceptions set out above (such as such facts not in relation to an illegal purpose, etc).
In what circumstances do communications with agents of the attorney or agents of the client fall within the scope of the protections for attorney-client communications?
Section 126 of the Act includes communications made to the attorney ‘on behalf of’ the client within the scope of the protection. This will arguably extend protection to communications made by the agent of the client to the attorney on the client’s behalf in relation to legal advice or in anticipation of legal proceedings. Section 127 of the Act extends protection under section 126 to all interpreters and clerks or servants of the attorney.
Corporations claiming protection
Can a corporation avail itself of the protections for attorney-client communications? Who controls the protections on behalf of the corporation?
Yes. The protection is granted for a ‘client’, the meaning of which is not restricted to individuals. Communication between a corporation (through its agents) and external attorney in relation to legal advice or in anticipation of litigation is considered to be privileged communication under sections 126 to 129 of the Act. Such protection is not absolute and subject to limitations as set out in question 1.
Under Indian law, the board of directors of a corporation, or an authorised representative thereof, are understood to be in control of the corporation. In the case of protection of attorney-client communications, the board of directors, or a duly authorised representative, may be understood to be in control.
Communications between employees and outside counsel
Do the protections for attorney-client communications extend to communications between employees and outside counsel?
Yes, the protection for attorney-client communications will extend to communications in relation to legal advice or in anticipation of litigation between employees (as agents of the corporation) and outside counsel provided. Such protection is not absolute and subject to limitations as set out in question 1.
Communications between employees and in-house counsel
Do the protections for attorney-client communications extend to communications between employees and in-house counsel?
Yes, the protection for attorney-client communications will extend to communications in relation to legal advice or in anticipation of litigation between employees (as agents of the corporation) and outside counsel provided. Such protection is not absolute and subject to limitations as set out in question 1. Further, such protection may not extend to the work undertaken by an in-house legal counsel for his or her employer that is undertaken in another capacity (such as work of an executive nature). Communications exchanged in any other capacity (not legal) would not be subject to legal professional privilege under sections 126 to 129 of the Act (Vijay Metal Works).
Communications between company counsel and ex-employees
To what degree do the protections for attorney-client communications extend to communications between counsel for the company and former employees?
Privilege under section 126 of the Act extends to attorney communication with employees (working in a client corporation) in the course of and for the purpose of their professional employment. Section 126 specifically states that the obligations of such persons continue after the employment has ceased.
Further, section 126 of the Act protects communication between an attorney and a client or on behalf of his or her client. Any communication between a former employee, as an agent of the client with an attorney, can be considered as privileged communication. Such protection is not absolute and subject to limitations as set out in question 1.
Who may waive protection
Who may waive the protections for attorney-client communications?
The privilege accorded under sections 126 to 129 of the Act is established for the protection of the client. Hence, such a privilege can only be waived by the client.
Actions constituting waiver
What actions constitute waiver of the protections for attorney-client communications?
Under section 126 of the Act, a client is required to expressly consent to the waiver of privilege. This need not be in writing necessarily, and could be inferred from the facts and circumstances. Further, under section 128, if a client calls his or her attorney as a witness and, in the course of examination, asks questions that specifically require a disclosure of attorney-client privileged information, then such a client is understood to have waived privilege.
Does accidental disclosure of attorney-client privileged materials waive the privilege?
Waiver of privilege under section 126 of the Act occurs only when the client expressly consents to it, or in the case of section 128, consents to it by implication. While there is no judicial pronouncement by the courts of India on this issue, considering any waiver must be deliberate (indicating consent), accidental disclosure may not be considered as a waiver of privilege.
Sharing communications among employees
Can attorney-client communications be shared among employees of an entity, without waiving the protections? How?
While confidential communications between principal and agent, even if relating to matters in a suit (or other litigation advice or proceedings) are not privileged, attorney-client communications are privileged correspondence. Only the client entity can waive such privilege. Therefore, sharing the attorney-client communication among employees of a client entity does not waive protection.
Describe your jurisdiction’s main exceptions to the protections for attorney-client communications.
Section 126 of the Act lays down two exceptions to attorney-client privilege, namely:
Litigation proceedings overriding the protection
Can the protections for attorney-client communications be overcome by any criminal or civil proceedings where waiver has not otherwise occurred?
Under section 91 of the Code of Criminal Procedure, a court can compel the production of any document, and the person in whose possession it is, if the document is necessary or desirable for the purpose of any inquiry, trial or other proceeding.
The court in Chandubhai held that the protection against production or disclosure, however, does not extend to any original document that might have come into the possession of an attorney from his or her client. The attorney, when holding a document on behalf of a client, is acting as the agent of the client, and if the client is compellable to produce the document, there is no reason based on principle or authority on which the attorney can refuse to produce the document. The document handed over to the attorney by the client cannot be said to be privileged under section 120 of the Act unless the document contains any communication made to the attorney by the client in the course and for the purpose of the engagement as an attorney. The letter requested in Chandubhai from the attorney of the accused was obviously not a letter in respect of which any privilege could have been claimed by the attorney of the accused under section 126 of the Act.
In civil proceedings, under section 30 (Order XI) of the Code of Civil Procedure, a party can seek discovery or summons by issuing interrogatories, demanding production of documents by the other party and so forth. In such circumstances, attorney-client privilege is a ground to object to discovery.
Recognition of foreign protections
In what circumstances are foreign protections for attorney-client communications recognised in your jurisdiction?
This is not a settled question of law in India. In a given case, the question of whether foreign protections for attorney-client privilege exist or not would be a question of foreign law. Under Indian law, questions of foreign law are treated as questions of fact. Therefore, foreign protections for attorney-client communications will be recognised if the same is proven as a fact before an Indian court.
Best practice to maintain protection
Describe the best practices in your jurisdiction that aim to ensure that protections for attorney-client communications are maintained.
There are no prescribed best practices in India to maintain protections for attorney-client communications. It is advisable to mention the words ‘privileged and confidential’ in attorney-client correspondence.
Work product
Describe the elements necessary to confer protection over work product.
Indian law follows the English position in relation to work product. The work product must be prepared by counsel or at the request of counsel in anticipation of litigation to confer protection.
Describe any settings in which the protections for work product are not recognised.
Who holds the protection
Who holds the protections for work product?
Types of work product
Is greater protection given to certain types of work product?
No, different levels of protection are not granted to work product depending on their nature. If the elements necessary to confer protection over work product are satisfied, the work product will be protected.
In-house counsel work product
Is work product created by, or at the direction of, in-house counsel protected?
Yes, work product created by or at the direction of in-house counsel in anticipation of litigation will be protected. However, such protection may not extend to the work undertaken by an in-house legal counsel for his or her employer that is in another capacity (such as work of an executive nature).
Work product of agents
In what circumstances do materials created by others, at the direction of an attorney or at the direction of a client, fall within the scope of the protections for work product?
Third parties overcoming the protection
Can a third party overcome the protections for work product? How?
No, protection for work product can only be overcome when the client waives privilege; a third party cannot overcome the protections.
Who may waive work-product protection
Who may waive the protections for work product?
See question 14.
Actions constituting waiver
What actions constitute waiver of the protections for work product?
See question 15.
Client access to attorney files
May clients demand their attorney’s files relating to their representation? Does that waive the protections for work product?
Yes, clients may demand their attorney’s files relating to their representation. The mere demand of files will not amount to waiver, as it does not amount to express consent on the part of the clients, to release the attorney from the duty of privilege.
Accidental disclosure of work product
Does accidental disclosure of work-product protected materials waive the protection?
See question 16.
Describe your jurisdiction’s main exceptions to the protections for work product.
See question 18.
Litigation proceedings overriding the protections
Can the protections for work product be overcome by any criminal or civil proceedings where waiver has not otherwise occurred?
See question 19.
Recognition of foreign protection
In what circumstances are foreign protections for work product recognised in your jurisdiction?
See question 20.
Other issues
Who determines what is protected
Who determines whether attorney-client communications or work product are protected from disclosure?
Whether communications or work products are protected under attorney-client privilege is a determination made by the courts in India. In civil proceedings (see question 19), under the Code of Civil Procedure, when an opposite party makes an application for discovery, a party can resist production on the grounds of attorney-client privilege. The civil court is entitled to decide whether the documents or communications in question are privileged or not.
If a court issues a summons in a criminal proceeding under section 91 of the Code of Criminal Procedure, then attorney-client privilege over documents or communications cannot prevent a court from examining the same. It cannot be argued that the section 91 order is illegal simply because it overrides the privilege conferred under section 126 of the Act. The power to issue notice under section 91 is not limited by section 126. The court in the appropriate cases can make an order under section 91 that would override the provisions of section 126 of the Act.
The issuance of summons is a discretion exercised by the court and the possibility of the court not to make an order that violates the privilege conferred under section 126, in the exercise of its discretion, cannot be ruled out.
Can attorney-client communications or work product be shared among clients with a common interest who are represented by separate attorneys, without waiving the protections? How may the protections be preserved or waived?
Section 126 of the Act does not contemplate sharing of attorney-client communications or work product among persons with a common interest without waiving protections. As per the language of section 126, a client may waive privilege entirely or not at all.
Can attorney-client communications or work product be disclosed to government authorities without waiving the protections? How?
Sections 126 to 129 of the Act do not contemplate limited waiver. As per the language of section 126, a client may waive privilege entirely or not at all.
Other privileges or protections
Are there other recognised privileges or protections in your jurisdiction that permit attorneys and clients to maintain the confidentiality of communications or work product?
Apart from sections 126 to 129 of the Act and Rule 17, Chapter II, Part VI of the BCI Rules, there are no formal recognised privileges or protections. Attorneys and clients may in their contract enter into arrangements to maintain confidentiality of communications or work product. This will be capable of protection under (Indian) contract law.
