Report No. 185

Section 126

It reads as follows:

"126. No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of 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 the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment.

Provided that nothing in this Section shall protect from disclosur.- .- (1) Any such communication made in furtherance of any illegal purpose.

(2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any 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.

Explanation: The obligation stated in this Section continues after the employment has ceased."

There are three illustrations below Section 126. Illustration (a) says that when a client tells his attorney that he had committed forgery and seeks his professional help for defence, the communication is protected for a lawyer is bound to defend a man known to be guilty. Illustration (b) refers to a client's statement informing his attorney that he proposes to forge a deed to obtain some property and says, such a communication is not protected as it shows a criminal intent. Illustration (c) refers to a case of a client charged with embezzlement of funds, the attorney observes a new entry in the account book which was not there when he was employed and which appeared to have been interpolated by his client to get out of the charge, the said fact is not protected from disclosure.

We shall entrust the Sections 127, 128 and 129 here.

Section 127: bears the heading 'Section 126 to apply to interpreters etc.' It reads:

"127. The provisions of Section 126 shall apply to interpreters, and the clerks or servants of barristers, pleaders, attorneys and vakils." Section 128: bears the heading 'Privilege not waived by volunteering evidence'. It says:

"128. If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in Section 126; and if any party to a suit or proceeding calls any such barrister, pleader, attorney or vakil as a witness, he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose."

Section 129: bears the heading "Confidential communications with legal advisers". It reads as follows:

"129. No one shall be compelled to disclose to the court any confidential communication which has taken place between him and his legal professional adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others."

It will be noticed that while Section 126 precludes the legal practitioner from disclosing any communication made to him in the course of and for the purpose of his employment as legal practitioner etc., Section 129 is complementary and protects the client from being compelled to disclose any confidential communication between him and his legal professional adviser.

Section 127 refers to non-disclosure by the interpreter or lawyer's clerk, or servant. Section 128 protects any party to a suit from revealing any communications even where he gives evidence, either on his own or otherwise; but the same Section permits disclosure by the legal practitioner if any party to the suit calls his legal practitioner as a witness and questions him in regard to those communications etc.

Now, there will be no difficulty if the words barrister, pleader, attorney and vakil in Section 126, 127, 128 are substituted by the word 'legal practitioner', as suggested in Ch. 68 of the 69th Report. Explanation 2 has been proposed; defining 'legal practitioner'. Section 129 uses the word 'legal professional adviser' and it is left as it is in the 69th Report. It can be left as it is.

The word 'employed' used in Section 126, in the main Section and in the proviso and in illustration (c) can be replaced as stated in 69th Report. The 69th Report suggested a new exception to be incorporated in the proviso to Section 126 to say that the privilege will not apply in an action between the client and the legal practitioner, be it a civil or criminal action. There can be no objection to this recommendation also.

But, certain other aspects which have not been referred to in the 69th Report may have to be referred to because of recent developments in the law. Question arises whether such new developments require any changes in the law or whether the framework of this group of Sections should not be disturbed.

We have seen, right from Section 123 to Section 125 & 162 that wherever a privilege against non disclosure was there in the original Act, an exception has been suggested enabling the Court to order disclosure if 'judicial administration requires such disclosure while balancing it against the public injury that may be caused if the information is disclosed'. Question is as to why the same principle should not be extended to the communication between a legal practitioner and his client and whether the matter should be left to the Court?

At one time in R v. Barton: 1972(2) All ER 1192 and in R v. Ataou 1988(2) All ER 321, it was laid down that if there are documents in the possession or control of a solicitor which, on production, help to further the defence of an accused person, then no privilege is attracted. It was also laid down that the 'balancing of conflicting interest' exercise has to be done by the Court.

But, both these decisions have been overruled recently by the House of Lords in R v. Derbyshire Magistrates Court ex parte B 1995(4) ALL ER 526. In that case, the facts were that in 1978, the applicant was acquitted of murder, having made various statements admitting the killing but later retracting these and instead accusing his step-father of the murder. In 1992, the step-father was charged with murder and at the committal proceedings, the applicant was called as a witness for the Crown. Counsel for the step father sought to cross examine him about instructions he had given to his solicitor in 1978 which were inconsistent with his statement implicating his step father.

The applicant declined to waive his privilege and counsel applied under Sections 4, 5 of the Criminal Procedure Act, 1865 to the magistrates for those instructions to be produced. The magistrate directed the applicant to produce these documents on the ground that they were likely to be material evidence and on the ground of public interest in securing that all relevant information was before the Court. But Lord Taylor held that Section 97 was not affected by the duty of disclosure in the prosecution under R v. Keane 1994(2) All ER 478. The entire history of the privilege of the lawyer was traced.

The reason given was that once the lawyer is required to disclose, the 'client's confidence is necessarily lost'. That may require every lawyer to accept the engagement subject to being compelled to disclose the communication in certain circumstances and such a qualified engagement of counsel would undermine the principle of confidence. As to the 'public interest' and balancing by court, he stated that merely because it had to be done in other cases, it need not necessarily be extended to the lawyer and the client relationship. Lord Taylor observed:

"As for the analogy with public interest immunity, I accept that the various classes of cases in which relevant evidence is excluded may, as Lord Simon of Glaisdale suggested, be regarded as forming part of a continuous spectrum. But it by no means follows that because a balancing exercise is called for in one class of case, it may also be allowed in another. Legal professional privilege and public interest immunity are as different in their origin as they are in their scope. Putting it another way, if a balancing exercise was ever required in the case of legal professional privilege, it was performed once for all in the sixteenth century, and since then has applied across the board in every case, irrespective of the client's individual merits.

it is not for the sake of the appellant alone that the privilege must be upheld. It is in the wider interests of all those hereafter who might otherwise be deterred from telling the whole truth to their solicitors. For this reason, I am of the opinion that no exception should be allowed to the absolute nature of legal professional privilege, once established."

Lord Taylor called in aid the European Convention on Human Rights to justify the assertion that legal professional privilege is a fundamental condition on which the administration of justice rests.

Lord Nicholls called the balancing exercise a 'will-o'the-wisp'.

But, some commentators (see Steve Uglow, Evidence Text & Materials, 1997 p 207) point out that the very Convention on which Lord Taylor relied says in Article 5 that right to liberty is a fundamental concept. He says that if a person's liberty is dependent upon the disclosure of communication between a third party (client) and his or her lawyer, "it is bizarre" to state that legal professional privilege must 'in all circumstances' outweigh the injury that would occur if an innocent person received a lengthy prison sentence.

The public confidence in the rule of law, and in the criminal justice system, would surely be severely dented, says the author. The author also points out that the law under the Convention on this aspect is different. In AM & S Europe Ltd. v. E.C. Commission 1983(1) All ER 705 (E.C.) Advocate-General Warner referred to the law in the European Community as follows:

"They (The appellant) submitted that the right to confidential communication between lawyer and client was a fundamental human right. I do not think it is. There is. There is no mention of it, as such, in the European Convention....or, seemingly, in the constitution of any member State; and your Lordships have already seen that, in England and in France at least, it is acknowledged to be a right that can be overridden or modified by an appropriately worded statute. In my opinion it is a right that the laws of civilized countries generally recognize, a right not lightly to be denied, but not one so entrenched that, in the Community, the Council could never legislate to override or modify it."

The question before us is whether, we should insert a provision permitting the Court to conduct a balancing exercise?

In this context, we would like to refer to the practical difficulties pointed out in the speech of Lord Nicholas in the Derbyshire Magistrates case of 1995. Let us take a situation where C, an accused wants disclosure of what another co-accused A told A's lawyer B. Then if A had told his lawyer B that A had committed the offence and not C, by directing B to disclose the communication, one would be jeopardizing the case of A. The prosecution can neither ask A or nor his lawyer to produce evidence of A's guilt even if such communication may absolve C of the offence. Lord Nichols observed as follows: (see 1995 (4) All ER at p 545):

"There are real difficulties here. In exercising this discretion the Court would be faced with an essentially impossible task. One man's meat is another man's poison. How does one equate exposure to a comparatively minor civil claim or criminal charge against prejudicing a defence to a serious criminal charge? How does one balance a client's risk of loss of reputation, or exposure to public opprobrium, against prejudicing another person's possible defence to a murder charge?

But the difficulties go much further. Could disclosure also be sought by the prosecution, on the ground that there is a public interest in the guilty being convicted? If not, why not? If so, what about disclosure in support of serious claims in civil proceedings, say, where a defendant is alleged to have defrauded hundreds of people of their pensions or life savings? Or in aid of family proceedings, where the shape of the whole of a child's future may be under consideration?

There is no evident stopping place short of the balancing exercise being potentially available in support of all parties in all forms of court proceedings. This highlights the impossibility of the exercise. What is the measure by which judges are to ascribe an appropriate weigh, on each side of the scale, to the diverse multitude of different claims, civil and criminal, and other interests of the client on the one hand and the person seeking disclosure on the other hand?

In the absence of principled answers to these and similar questions, and I can see none, there is no escaping the conclusion that the prospect of a judicial balancing exercise in this field is illusory, a veritable will-o'-the wisp. That in itself is a sufficient reason for not departing from the established law. Any development in the law needs a sounder base than this."

We are in agreement with the above view that there are very weighty reasons as to why one should not make an encroachment into this branch of the law. Therefore, we agree with the 69th Report that the provision of Section 126 need not be modified so as to include a provison like the one we recommended in Section 123 enabling the court to have the final say on the question of injury to public interest.

Before we proceed to the recommendations, we shall briefly refer to some of the Court decisions since 1977 when the 69th Report was given. In P.R. Ramakrishnan v. Subbaramma Sastrigal: AIR 1988 Kerala 18, it was stated that the interdict provided in Sections 126 and 127 and the protection of the communication embodied in Section 129 are intended to keep the communications confidential as between the advocate and his client.

In N. Yovas v. Immanueal Jose: AIR 1996 Kerala 1, it was stated that counsel is debarred, in view of Section 126, from divulging anything gathered from his client or stating the contents of any document with which he has become acquainted in the course of his professional employment. Nor could he disclose any advice which he gave to his client. Outside the parameters of such inhibitions, what is the use of his testimony?

There is a practical consequence when counsel is made a witness. Then he would be obliged to relinquish his engagement in the case. This was an earlier norm of professional ethics and now has been transformed into a rule of conduct under Rule 13 of Chapter II of Part VI of the Bar Council of India Rules.

In Mandesan v. State of Kerala: 1995 Crl LJ 61 (Ker) it was held that the privilege embodied in Section 126 in favour of the client cannot be melted down on the ground of waiver or acquiescence of the client. A failure on the part of the client to claim privilege cannot be stretched to the extent of amounting to "express consent" envisaged by Section 126.

In V. Ravi v. State of Kerala, 1994 Crl LJ 162 (Ker) it was held that the evidence of a practicing lawyer that he was residing half a kilometer away from the place of occurrence and that the accused alone came to his house on the intervening night, does not fall under Section 126.

An advocate summoned to prove the sending of a notice to the defendant cannot claim privilege under Section 126. There is nothing confidential in the contents of a notice which was communicated to the other side (P.G. Anantasayanam v. Miriyala Sathiraju AIR 1998 AP 336; P. Rajamma v. Chintaiah 1997(2) An WR 253 (see Sarkar 15th Ed., 1999, page 2035). What is stated in a reply notice by a lawyer is evidently what he has disclosed to others and more particularly to the opponent's lawyer and so it cannot continue to have the protection of Section 126: Rev. Fr Bernard Thattil v. Ramachandran Pillai : 1987 Crl LJ 740 (Ker).

A register maintained by a lawyer containing instructions given by the client for the purpose of cross examination is a privileged document and the lawyer is entitled to refuse to show that register to the Court (Supdt. & Remembrancer of Legal Affairs, W.B. v. Satyen Bhowmick: AIR 1981 SC 917.

In one case, in respect of a Motor Accident, there was an attempt to compromise the matter with the Insurance Company. The file of the company relating to the compromise, the Delhi High Court held, could not be ordered to be produced because the communication between counsel for the claimant and the Insurance Company is also privileged. (R. Ramalingam v. P.R. Thakur AIR 1982 Del 486).

We agree with the limited changes suggested in para 68.37 of the 69th Report. We recommend that Section 126 be revised as follows:

"126. Professional communications.- No legal practitioner shall, at any time, be permitted, except with his client's express consent, to disclose any communication made to him in the course of and for the purpose of his professional engagement, 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 of and for the purpose of such engagement, or to disclose any advice given by him to his client in the course of and for the purpose of such engagement:

Provided that nothing in this Section shall protect from disclosur.-

(a) any such communication made in furtherance of any illegal purpose;

(b) any fact observed by any legal practitioner in the course of his engagement as such, showing that any crime or fraud has been committed since the commencement of his engagement.

(c) any such communication when required to be disclosed in a suit between the legal practitioner and the client arising out of the professional engagement or in any proceeding in which the client is prosecuted for an offence against the legal practitioner or the legal practitioner is prosecuted for an offence against the client, arising out of the professional engagement.

Explanation 1:- The obligation stated in the Section continues after the engagement has ceased.

Explanation 2:- In this Section and in Sections 127 to 129, the expression 'legal practitioner' or 'legal professional adviser' includes any person who, by law, is empowered to appear on behalf of any other person before any judicial or administrative authority; and the expression 'client' shall be construed accordingly.

Explanation 3:- For the purpose of clause (b) of the proviso to this Section, it is immaterial whether the attention of such legal practitioner was or was not directed to such fact by or on behalf of his client.

Illustrations.

(a) A, a client, says to B, a legal practitione.- "I have committed forgery, and I wish you to defend me."

As the defence of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure.

(b) A, a client, says to B, a legal practitione.- "I wish to obtain possession of property by the use of a forged deed on which I request you to sue."

This communication being made in furtherance of a criminal purpose, is not protected from disclosure.

(c) A, being charged with embezzlement, retains B, a legal practitioner to defend him. In the course of proceedings, B observes that an entry has been made in A's account book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his professional engagement.

This being a fact observed by B in the course of his engagement, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure."

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