A Case of Privileged Communications

Source: The post “A Case of Privileged Communications” has been created, based on “A Case of Privileged Communications” published in “The Hindu Businessline” on 13 November 2025.

UPSC Syllabus: GS Paper -2- Polity

Context: The Supreme Court on October 31, 2025, reaffirmed the indispensable role of advocates in India’s constitutional democracy. It held that a lawyer cannot be summoned merely to disclose what a client has communicated, except when such legal advice is used to commit or conceal a crime. The verdict arose from a suo motu case concerning a notice issued under Section 179 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

What are Privileged Communications?

1. Privileged communications are confidential exchanges between certain protected relationships — such as attorney-client and spouses — safeguarded from disclosure in court.
2. These are protected under Sections 126–129 of the Indian Evidence Act, 1872 (now reflected in Sections 128–132 of the BNSS, 2023).
3. Purpose: To build trust, professional integrity, and ensure effective legal representation.

Legal Provisions and Scope

1. Section 132 BNSS (earlier Section 126 Evidence Act) prohibits advocates from disclosing communications made in the course of professional engagement, even after the employment ends.
2. Exceptions (where disclosure is permitted):

1. With the client’s consent.
2. If communication is made to commit or conceal a crime.
3. If disclosure is required by law or departmental approval for disciplinary proceedings.

Supreme Court’s Key Observations

1. The Court asserted that compelling a lawyer to disclose client communications violates the citizen’s right to fair trial and legal representation.
2. It held that State intrusion into the lawyer-client relationship endangers the structural integrity of the justice system.
3. Privilege is not a “shield” for lawyers but a safeguard for citizens to ensure effective defence.
4. The privilege “ensures no prejudice is caused to the accused whom the lawyer represents.”

Why Safeguarding this Privilege is Important

1. It upholds the right to equality before law and fair trial under Articles 14 and 21.
2. It prevents the State from coercing confessions indirectly through lawyers.
3. It encourages free and honest communication between lawyers and clients — essential for justice delivery.
4. It also strengthens public trust in the legal system.

Lawyer as a Constitutional Actor

1. The Court recognized advocates as “constitutional actors”, not mere private agents.
2. Their role is central to the constitutional architecture of legal representation and the survival of rule of law.
3. Compelling lawyers to reveal confidential information collapses the distinction between defence and prosecution, violating the principle of fair defence.

Wider Implications

1. The judgment reinforces earlier rulings such as: M.H. Hoskot v. State of Maharashtra (1978) and Hussainara Khatoon v. State of Bihar (1980)
   affirming the right to effective legal representation as part of Article 21.
2. It curtails investigative overreach, where police or agencies summon advocates to “assist” investigations by disclosing client details.

Way Forward

1. Codify clearer safeguards: Amend the BNSS and Bar Council Rules to explicitly reaffirm the inviolability of client-lawyer privilege, defining limited exceptions with judicial oversight.
2. Strengthen awareness among enforcement agencies: Conduct training for police and investigative officers to prevent misuse of Section 179 BNSS and other provisions against advocates.
3. Digital confidentiality norms: Frame data protection and cyber-ethics guidelines to secure electronic client communications in the digital age.
4. Ethics and accountability: Encourage the Bar Council to enforce strict disciplinary action in genuine cases of professional misconduct while upholding the core principle of confidentiality.
5. Judicial vigilance: Courts must continue to scrutinize coercive summons or investigative overreach that threaten the right to fair defence.

Conclusion: The Supreme Court’s judgment strengthens the constitutional protection of lawyer-client confidentiality, affirming it as a pillar of fair trial and rule of law. By positioning the advocate as a constitutional actor, the Court safeguards the citizen’s right to defence, dignity, and privacy, ensuring that justice in India remains independent, impartial, and constitutionally grounded.

Question: Can lawyers break client confidentiality? Discuss in the context of the recent Supreme Court judgment.