Law of Evidence

By Nizam Azeez Sait,

MODULE No. 3

MEANINGS OF “RELEVANT” AND “RELEVANCY”, DISTINCTION BETWEEN “LOGICAL RELEVANCY AND LEGAL RELEVANCY”, DISTINCTION BETWEEN “RELEVANCY AND ADMISSIBALITY” AND PRIVILLEGED COMMUNICATIONS etc.

In this module, we shall deal with the definition of the term “Relevant” in Section 2 (k), We will see  “Relevancy” as per Section 3 of the Bhartiya Sakshya Adhiniyam (Section 5 of the Evidence Act), Distinction between Logical Relevancy and Legal Relevancy, Distinction between “Relevancy and Admissibility” and certain privileged communications which are debarred/prohibited from disclosure such as (a) Communication between husband and wife during marriage, (b) privilege relating to professional communications between a lawyer and his client, (c) Evidence as to Affairs of State, (d) Immunity of Police Officers from Disclosing the Whereabouts of Information.

MODULE INDEX

1. “Relevant” – Meaning

2. Relevancy under Section 3

3. Difference between Facta Probanda and Facta Probantia

4. Purpose of Relevancy Under Section 3

5. Distinction between Legal Relevancy and Logical Relevancy

6. Distinction between Relevancy and Admissibility

7. Communication during Marriage – Section 128

8. Evidence as to Affairs of State

9. The Court’s Power to Inspect the Documents of which Privilege is claimed to Decide on Such Claim – Section 162 – ‘S.P Gupta Proposition’
I. The Manner of Claiming Privilege
II. Greater Need of Transparency
III. Sealed Cover Jurisprudence

10. Immunity of Police Officers from Disclosing the Whereabouts of Information – Section 131

11. Privilege with Respect to Professional Communications between Lawyer and ClientSections 132 to 134 of the Bhartiya Sakshya Adhiniyam
12. When can the Lawyer of the Opposite Side be Summoned as Witness

13. Is There Any Immunity for The Press/Media from Disclosing the Whereabouts of Information

1. “Relevant” – Meaning

Section 2 (k) of the Bhartiya Sakshya Adhiniyam defines the term “Relevant” as —

“One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.”

In common parlance/ in logic one fact is said to be relevant to another if it has a bearing on another fact and it is a case of logical relevancy. But the Bhartiya Sakshya Adhiniyam specifically provides in sections 4 to 50 (6 to 55 of Evidence Act) as to what facts are made or declared to be relevant and S.3 specifically states that evidence may be given only of facts in issue and facts so declared as relevant.

2. Relevancy under Section 3

Section 3 of the Act along with illustrations reads as follows

“Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.

Explanation. –This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure.

Illustrations (a) A is tried for the murder of B by beating him with a club with the intention of causing his death.

At A’s trial the following facts are in issue: —

A’s beating B with the club;

A’s causing B’s death by such beating;

A’s intention to cause B’s death.

(b) A suitor does not bring with him, and have in readiness for production at the first hearing of the case, a bond on which he relies. This section does not enable him to produce the bond or prove its contents at a subsequent stage of the proceedings, otherwise than in accordance with the conditions prescribed by the Code of Civil Procedure 1908.”

3. Difference between Facta Probanda and Facta Probantia

Now let us see the difference between the phrases Facta Probanda and Facta Probantia

The Material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (evidentiary facts) need not be set out in the pleadings. They are not “facts in issue”, but only relevant facts required to be proved at the trial in order to establish the fact in issue.

Supreme Court in Virendra Nath Gautam v. Satpal Singh reported in AIR 2007 SC 581, observed as follows:

“There is distinction between facta probanda (the facts required to be proved, i.e. material facts) and facta probantia (the facts by means of which they are proved, i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue.”

4. Purpose of Relevancy Under Section 3

Now let us see the Purpose of Section 3 of the Bhartiya Sakshya Adhiniyam

The purpose of the Provision is to restrict the trial to material aspects only and prevent the same from going beyond the relevant premises. Section 3 is a very important/cardinal provision which prohibits the parties from adducing irrelevant evidence which have no bearing on the facts in issue. The provision keeps the proceedings on track and prevents it from derailing on to unnecessary precincts / areas. Sections 4 to 50 of the Bhartiya Sakshya Adhiniyam (6 to 55 of Evidence Act) provides various instances of relevant facts.

Section 141 of the Bhartiya Sakshya Adhiniyam (136 of the Evidence Act) is also significant in this context the relevant portion of which reads as follows:

Judge to decide as to admissibility of evidence. —

“When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.”

Section 3 along with section 141 of the Bhartiya Sakshya Adhiniyam (136 of the Evidence Act) enables the judge to keep the trial within the relevant premises.

5. Distinction between Legal Relevancy and Logical Relevancy

Now let us see the distinction between Legal Relevancy and Logical Relevancy

Legal relevancy means what is legally admissible in evidence within the frame work of sections 4 to 50 of  Bhartiya Sakshya Adhiniyam (Sections 6 to 55 of the Evidence Act).  Therefore, a fact which though appears to be relevant according to our common logic if not covered under any of the provisions from Sections 4 to 50 cannot be proved in a judicial proceeding. In other words what is logically relevant may not be legally relevant. It has to be appreciated that Sections 4 to 50 are very comprehensive and covers almost all perceivable instances of relevancy. Section 3 Bhartiya Sakshya Adhiniyam (Section 5 of the Evidence Act) is designed to prohibit irrelevant facts which have no bearing on the facts in issue from being proved so as to save the loss of precious time of the court. The facts which are expressly declared to be relevant from sections 4 to 50 and of which evidence is permitted may be classified as follows:

Sections 4 to 14 (Sections 6 – 16 of Evidence Act) deal with the relevancy of facts connected with the facts in issue in different ways as enumerated therein, which include-

(a)Facts which are “Res Gestae” ie in section 4 (S.6 of Evidence Act),

(b) Facts which are occasion, cause or effect of relevant facts ie in section 5 (S.7 of Evidence Act),

(c) Facts showing Motive, preparation and previous and subsequent conduct ie in Section 6 (S.8 of Evidence Act),

(d) Facts which are explanatory or introductory of the other relevant facts ie in Section 7 (S.9 of Evidence Act),

(e)Things said or done by conspirators in reference to their common design ie in Section 8 (S. 10 of Evidence Act ),

(f) Facts which are inconsistent / consistent with other relevant facts, ie in Section 9 (S.11 of Evidence Act),

(g) Enabling facts to determine damages ie in Section 10 (S.12 of Evidence Act)

(h) Facts relating to the existence of a right or custom in dispute ie in Section 11 (S.13 of Evidence Act)

(I) Facts showing existence of state of mind, or body or bodily feeling ie in Section 12 (S.14 of Evidence Act)

(J)Facts bearing on question whether act was accidental or intentional ie in Section 13(S.15 of Evidence Act)

(k) When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact. ie in Section 14(S.16 of Evidence Act)

Sections 15 to 25 of the Bhartiya Sakshya Adhiniyam (Sections 17-31 of Evidence Act) deal with the relevancy of admissions and confessions.

Sections 26 and 27 (Sections 32 and 33 of Evidence Act) deal with the relevancy of certain statements made by persons who cannot be called as witnesses, including dying declaration.

Sections 28 to 32 (Sections 34 – 39 of Evidence Act) deal with the relevancy of statements made under certain special circumstances.

Sections 34 to 38 (Sections 40 – 44 of Evidence Act) deal with the relevancy of judgments of the court.

Sections 39 to 45 (Sections 45- 51 of Evidence Act) deal with the relevancy of opinions of witnesses.

Sections 46 to 50 (Sections 52 – 55 of Evidence Act)deal with the relevancy of character evidence.

In the subsequent modules we will deal in detail each of the specific instances of relevancy from Sections 4 to 50 (corresponding to Sections 6 to 55 of the Evidence Act).

6. Distinction between Relevancy and Admissibility

Now we will move on to the Distinction between Relevancy and Admissibility and privileged communications.

The terms Relevancy and Admissibility can be distinguished.

As we have seen, Section 2 (k) of the Bhartiya Sakshya Adhiniyam (Section 3 of the Evidence Act) defines the term “Relevant” as follows— “One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.”

We have also seen that, the of the Bhartiya Sakshya Adhiniyam specifically provides in sections 4 to 50 as to what facts are made or declared to be relevant and S.5 specifically states that evidence may be given only of facts in issue and facts so declared as relevant.

In Ram Bihari Yadav v. State of Bihar and Others, AIR 1998 SC 1850 : 1998 CrL J 2515, the Supreme Court held;

“More often the expressions ‘relevancy and admissibility’ are used as synonyms but their legal implications are distinct and different for more often than not facts which are relevant are not admissible; so also facts which are admissible may not be relevant, for example, questions permitted to be put in cross – examination to test the veracity or impeach the credit of witnesses, though not relevant are admissible. The probative value of the evidence is the weight to be given to it which has to be judged having regard to the facts and circumstances of each case.”

Some of the provisions of of the Bhartiya Sakshya Adhiniyam /the Evidence Act debar disclosure/reception of certain privileged communications. Therefore some facts which are covered by Sections 4 to 50 may not be admissible in view of such specific prohibition. Hence in that context it is said that ‘all relevant facts are not admissible’. Now we will deal with some of the provisions of such inadmissibility, covered by the Evidence Act such as (a) Communication between husband and wife during marriage, (b) privilege relating to professional communications between a lawyer and his client, (c) Evidence as to Affairs of State, (d) Immunity of Police Officers from Disclosing the Whereabouts of Information.

7. Communication during Marriage – Section 128

Communication between husband and wife are privileged and are strictly prohibited from disclosure. A spouse is not permitted to disclose any information given by the other spouse except when consented. But the rule is not without exception and is not applicable in suits between spouses or in criminal proceedings for crime committed by a spouse against the other. The law in this regard is contained in Section 128 of the Bhartiya Sakshya Adhiniyam (Corresponding to Section 122 of the Evidence Act), which reads as follows:

No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.”

From the above provision it is discernable that:

  • The communication must have been made during the continuance of the marriage. Communications made before legal marriage or after the dissolution of the marriage are not protected but communications made during the marriage are privileged even after dissolution of the marriage.
  • Communications only are protected from disclosure but not the acts or conduct of spouses. For instance, when a husband commits murder in front of his wife, evidence of wife is admissible.
  • The privilege operates only against the husband or wife but not against third persons. For instance a third person who overheard communication between husband and wife can give evidence of what he heard. Likewise a letter written by the husband to her wife and seized by the investigating authority may be put in evidence. But the wife cannot be compelled or permitted to disclose the same in evidence.

In Rambarose v State of UP AIR 1954 SC 704, a 3 judges bench of the Supreme Court, excluded the communication part in the deposition of the wife. The court observed:

“She (wife) was examined on behalf of the prosecution as PW 2, as she deposed as follows. ” I awoke in the morning and saw that my husband was coming down the roof. Thereafter he went inside the Bhusa Kothri. He came out of the Bhusa Kothri and had a bath on the ‘nabdan’ after becoming necked. After this he wore on the same dhoti, which he was wearing before taking his bath. He sat at home after his bath and said to me that he would give me Chail Choori, Laccha Kara and Zangir………. I had asked him where he had gone at about ‘moonhandherey’, and he replied that he had gone to the middle house in order to get cheez.” The middle house referred to in this deposition is the house in which Manna was living. The argument of the appellant is that his statements to PW 2 that he would give her jewels, and that he had gone to the middle house to get them were inadmissible under S.122 of the Evidence Act, being communications made to his wife. This is plainly so, and the Courts below ought not to have taken this evidence into consideration”

In Choudhary S.J v State 1985 CriLJ 622, High court of Delhi admitted communications made after judgment of divorce as they are not privileged and rejected communications made during the subsistence of the marriage. The court observed:

“7.  The prohibition under S.122 of the Evidence Act is based on the ground that the admission of such testimony is likely to disturb the peace of the family and weaken the feeling of mutual confidence. It rests on no technicality that can be waived at will but is founded on a principle of high import which no court is entitled to relax. It is further not confined to cases where communication is of strictly confidential character. In fact, it extends to all communications of whatever nature, which pass between the husband and the wife unless the spouse making the communications consents to its disclosure. (See in this regard Nawab Howladar v. Emperor, 1914 (23) Ind Cas 511 : 15 CriLJ 303 (Cal), Ramchandra Shankarshet v. Emperor, AIR 1933 Bom 153 : 35 CriLJ 747, Bishen Das v. Emperor, 1913 (14) CriLJ 316 (Lah) and Appu v. State, 1971 CriLJ 615 (Mad).

  1. It is also now well settled that if the marriage was subsisting at the time when the communications were made, the bar prescribed by S.122 will operate even after the wife has obtained decree for nullity of her marriage. The bar to the admissibility in evidence of the communications made during marriage attaches at the time when the communication was made, and its admissibility will be adjudged in the light of the status at the date and not the status at the date when evidence is sought to be given in court. See in this regard the decision in M.C. Verghese v. T. J. Ponnan, AIR 1970 SC 1876: 1970 CriLJ 1651.”

In Lekshmana ips and another v CBI and Others ILR 2011 (2) Ker. 929: 2011 (3) KLT 75, High Court of Kerala observed as under:

“35. The immunity from disclosure, enshrined in S.122, applies to all communications, confidential or otherwise. That privilege is not to the witness, but to the spouse who made the communication and therefore, the witness cannot waive it at his or her will; nor can the Court permit disclosure even if he or she is willing to do. In terms of S.122, it is imperative that a witness shall not be permitted to disclose any communication covered by the privilege provided for by that provision, unless the person (spouse) who made that communication, or his or her representative in interest, consents to such disclosure. In the setting in which the concept of ‘consent’ is placed in S.122, such consent is not to be implied or drawn as an inference from the conduct of the spouse entitled to the privilege, not objecting to such disclosure.”

 In State of kerala v Jayanandan 2017 CriLJ 2218, a division bench of the High Court of Kerala held:

“To attract S.122, the disclosure should be of a communication. Identification of the signature of the husband by his wife, in a document which is sought to be proved, does not amount to disclosure of a communication within the ambit of S.122 of the Evidence Act. Signature is not a communication.”

8. Evidence as to Affairs of State

Now we will see the privilege associated with the Evidence as to Affairs of State

This is a vexed topic for the Courts and the Supreme Court had been called up on a few times to decide on the legal intricacies regarding this issue.

As per Section 129 of the Bhartiya Sakshya Adhiniyam (Section 123 of the Evidence Act):

No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.”

Section 130 (Section 124 of the Evidence Act) further states that:

“No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.”

The above privilege concerning the records relating to the affairs of State has been provided on the ground of public interest. The implicit principle in the provision is that private interest must yield to public interest. Privileged documents of which the disclosure is likely to impair the public interest are protected by the above provision. The expression ‘records relating to affairs of State’ has not been defined in the Act. The said expression generally includes all documents relating to public activity such as defence, foreign relations etc and not the ones relating to commercial activities of the state/government.

The Supreme Court in State of UP v. Raj Narain, reported in AIR 1975 SC p. 865, observed as under:

“The court will propriomotu exclude evidence the production of which is contrary to public interest. It is in public interest that confidentiality shall be safeguarded. The reason is that such documents become subject to privilege by reason of their contents. Confidentiality is not a head of privilege. It is a consideration to bear in mind. It is not that the contents contain material which it would be damaging to the national interest to divulge but rather that the documents would be of class which demand protection. To illustrate, the class of documents would embrace Cabinet papers, Foreign Office dispatches, papers regarding the security of the State and high level inter departmental minutes. In the ultimate analysis the contents of the document are so described that it could be seen at once that in the public interest the documents are to be withheld.”

9. The Court’s Power to Inspect the Documents of which Privilege is claimed to Decide on Such Claim – Section 162 – ‘S.P Gupta Proposition’

Now let us see the law relating to the Courts Power to Inspect the Documents of which Privilege is claimed to Decide on Such Claim

In the context of the power to inspect the document to decide the claim of privilege under Section 165 of the Bhartiya Sakshya Adhiniyam (Section 162 of the Evidence Act) is significant. The Section reads as under:

  1. (1) A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility: Provided that the validity of any such objection shall be decided on by the Court.

(2) The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.

(3) If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence and, if the interpreter disobeys such direction, he shall be held to have committed an offence under section 198 of the Bharatiya Nyaya Sanhita, 2023:

Provided that no Court shall require any communication between the Ministers and the President of India to be produced before it.

 The proviso is a new addition in the Bhartiya Sakshya Adhiniyam, 2023. The proviso was not there in the Evidence Act 1872. In this era of demand for greater transparency and accountability in government functions this new provision appears to be regressive.

Now let us see the law relating to the Courts Power to Inspect the Documents of which Privilege is claimed to Decide on Such Claim – ‘S.P Gupta Proposition’.

State of Punjab v. Sodhi Sukhdev Singh  AIR 1961 SC 493, a  5 Judges Constitution Bench decision of the Supreme Court was the first important decision which dealt with the issue as to whether the Court is entitled to inspect the document of which privilege on the ground of it being ‘records relating to affairs of State’. On a combined interpretation of Sections 123 and 162 of the Evidence Act (Sections129 and 165 of the Bhartiya Sakshya Adhiniyam), the Supreme Court negative the contention that to determine the issue of privilege U/s 123 (Section 129 of the Bhartiya Sakshya Adhiniyam)the Court can inspect the document and observed as under:

“Thus our conclusion is that reading S.123 and 162 (Sections129 and  165 of the Bhartiya Sakshya Adhiniyam)together the Court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question. That is a matter for the authority concerned to decide; but the Court is competent, and indeed is bound, to hold a preliminary enquiry and determine the validity of the objections to its production, and that necessarily involves an enquiry into the question as to whether the evidence relates to an affair of State under S.123 (Section 129 of the Bhartiya Sakshya Adhiniyam)or not.

 In this enquiry the Court has to determine the character or class of the document. If it comes to the conclusion that the document does not relate to affairs of State then it should reject the claim for privilege and direct its production. If it comes to the conclusion that the document relates to the affairs of State it should leave it to the head of the department to decide whether he should permit its production or not.”

But later, a constitutional bench of 7 Judges  in S.P Gupta v. President of India AIR 1982 SC 149, took a different view, the Court held that the court is entitled to inspect the document to decide on its admissibility. The Court would allow the objection to disclosure if it finds that the document relates to affairs of State and its disclosure would be injurious to public interest, but on the other hand, if it reaches the conclusion that the document does not relate to affairs of State or that the public interest does not compel its non-disclosure or that the public interest in the administration of justice in the particular case before it overrides all other aspects of public interest, it will overrule the objection and order disclosure of the document.

In this regard the Court observed as under:

“There is nothing sacrosanct about the immunity which is granted to documents because they belong to a certain class. Class immunity is not absolute or inviolable in all circumstances. It is not a rule of law to be applied mechanically in all cases. The principle upon which class immunity is founded is that it would be contrary to public interest to disclose documents belonging to that class, because such disclosure would impair the proper functioning of the public service and this aspect of public interest which requires that justice shall not be denied to any one by withholding relevant evidence. This is a balancing task which has to be performed by the Court in all cases.”

 “There can therefore, be no doubt that even where a claim for immunity against disclosure of a document is made under S.123 (Section 129 of the Bhartiya Sakshya Adhiniyam), the Court may in an appropriate case inspect the document in order to satisfy itself whether its disclosure would, in the particular case before it, be injurious to public interest and the claim for immunity must therefore be upheld. Of course this power of inspection is a power to be sparingly exercised, only if the Court is in doubt, after considering the affidavit, if any, filed by the minister or the secretary, the issues in the case and the relevance of the document whose disclosure is sought.”

In S p Gupta, the claim of privilege against disclosure of correspondence exchanged between the Chief Justice of the Delhi High Court, Chief Justice of India and the Law Minister of the Union concerning extension of term or appointment of Addl. Judges of the Delhi High Court was rejected and such communications were disclosed.

In R.K Jain v Union of India and Others, 1993 (4) SCC 119; AIR 1993 SC 1769, a 3 judges bench of the Supreme Court dealt with the public Interest Litigation raising challenge against the appointment of the President of the Customs, Excise and Gold Control Appellate Tribunal (CEGAT’). The allegation was that there was some adverse report against the incumbent and on that ground his appointment was challenged. The court observed:

“It is the duty of the Minister to file an affidavit stating the grounds or the reasons in support of the claim from public interest immunity. He takes grave risk on insistence of oath of secrecy to avoid filing an affidavit or production of State documents and the Court may be constrained to draw such inference as are available at law. Accordingly we hold that the oath of office of secrecy adumbrated in Art.75(4) and Schedule III of the Constitution does not absolve the Minister either to State the reasons in support of the public interest immunity to produce the state documents or as to how the matter was dealt with or for their production when discovery order nisi or rule nisi was issued. On the other hand it is his due discharge of the duty as a Minister to obey rule nisi or discovery order nisi and act in aid of the Court.”

Court also held:

“It has been averred that respondent No. 3 had been in the past proposed for appointment as a Judge of the Delhi High Court but his appointment did not materialise due to certain adverse reports. Assuming for the sake of argument that these allegations are factually accurate, this Court cannot sit in judgment over the choice of the person made by the Central Government for appointment as a President if the person chosen is qualified and eligible for appointment under the Rules.”

Upholding the claim of privilege under S.123 of the Evidence Act (Section 129 of the Bhartiya Sakshya Adhiniyam), the court further held that it is not necessary to disclose the contents of the records in the case to the petitioner or his counsel.

i. The Manner of Claiming Privilege

In S.P Gupta v. President of India. AIR 1982 SC 149, the Supreme reiterated the manner of claiming privilege U/s 123 (Section 129 of the Bhartiya Sakshya Adhiniyam)in the following words:

“…..a claim for immunity against disclosure should be made by the minister who is the political head of the department concerned or failing him, by the secretary of the department and the claim should always be made in the form of an affidavit. Where the affidavit is made by the secretary the Court may in an appropriate case require an affidavit of the minister concerned. The affidavit should show that the document in question has been carefully read and considered and the person making the affidavit has formed the view that the document should not be disclosed either because of its actual contents or because of the class of documents to which it belong.”

ii. Greater Need of Transparency

In this Information Technology era there is more demand for transparency in the government/public affairs. The Right to Information Act was also enacted and brought into force in the year 2005.

In Chief Information Commissioner v. State of Manipur, 2011 (15) SCC 1 Supreme Court had occasion to observe the object and purpose behind the enactment of the Right to Information Act in the following terms:

“The preamble (of the Right to Information Act, 2005) would obviously show that the Act is based on the concept of an open society. As its preamble shows, the Act was enacted to promote transparency and accountability in the working of every public authority in order to strengthen the core constitutional values of a democratic republic. It is clear that the Parliament enacted the said Act keeping in mind the rights of an informed citizenry in which transparency of information is vital in curbing corruption and making the Government and its instrumentalities accountable. The Act is meant to harmonise the conflicting interests of Government to preserve the confidentiality of sensitive information with the right of citizens to know the functioning of the governmental process in such a way as to preserve the paramountcy of the democratic ideal.”

In Yashvant Sinha and Others v Central Bureau of Investigation AIR 2019 SC 1802: 2019 (6) SCC 1,

“. S.162 (Section  165 of the Bhartiya Sakshya Adhiniyam)deals with the aspect of inspection of documents covered by privilege. In England, the law relating to privilege has been entirely court made. It cannot be in dispute that the claim for privilege under S.123 of the Indian Evidence Act (Section 129 of the Bhartiya Sakshya Adhiniyam)being based on public policy cannot be waived (see in this regard judgment of this Court in M/s. Doypack Systems Pvt. Ltd. v. Union of India and Others, 1988 (2) SCC 299 at page 327). The basis for the claim of privilege is and can only be public interest.”

iii. Sealed Cover Jurisprudence – Deprecated

In a few cases the Supreme Court has deprecated what is called the Sealed cover Procedure/Jurisprudence.

In Nisha Priya Bhatia v Ajit Seth and Others AIR 2016 SC 2319: 2016 (12) SCC 451, The appellant had complained of sexual harassment by her senior a Joint Secretary in the department. There was departmental enquiry. The government refused to furnish the copy of the enquiry report and filed the same in a sealed cover before the Supreme Court, claiming privilege under S. 123 of the Evidence act (Section 129 of the Bhartiya Sakshya Adhiniyam). The Supreme Court directed to furnish copy to the Appellant and observed as under:

“ With respect to furnishing the Report dated 23rd January, 2009 an affidavit has been filed on behalf of the Union of India claiming privilege under S.123 and S.124 of the Evidence Act (Sections 129 and  130 of the Bhartiya Sakshya Adhiniyam). We have been taken through the affidavit dated 22nd July, 2010 and all that the affidavit says is that disclosure of the contents of the Report would be against national interest and would compromise national security. Apparently, this is only because the appellant happens to belong to the highly sensitive organization which is entrusted with the delicate job of collecting and analyzing intelligence inputs necessary to maintain the unity, integrity and sovereignty of the country.

 Both the Reports and the accompanying documents have been filed by the Union of India in a sealed cover in this Court.

 We have gone through both the Reports and the accompanying documents and find absolutely nothing therein which could suggest that there is any threat to the integrity of the country or anything contained therein would be detrimental to the interests of the country. We had also specifically asked the learned Additional Solicitor General to tell us exactly what portion of the Reports and the documents would be detrimental to the interests of the country but nothing could be pointed out during the hearing.”

 We find it very odd that in a matter of an enquiry in respect of an allegation of sexual harassment, the Union of India should claim privilege under S.123 and S.124 of the Evidence Act (Sections 129 and  130 of the Bhartiya Sakshya Adhiniyam). The contents of Reports alleging sexual harassment can hardly relate to affairs of State or anything concerning national security. In any event, absolutely nothing has been shown to us to warrant withholding the Reports and the documents from the appellant in relation to the enquiry of allegations of sexual harassment made by the appellant.”

Recently, in Cdr Amit Kumar Sharma etc V. Union of India & Ors etc, the Supreme Court again deprecated the indiscriminate practice of the Executive of submission of facts in Sealed Covers. The Court observed:

“The elementary principle of law is that all material which is relied upon by either party in the course of a judicial proceeding must be disclosed. Even if the adjudicating authority does not rely on the material while arriving at a finding, information that is relevant to the dispute, which would with ‘reasonable probability’ influence the decision of the authority must be disclosed. A one-sided submission of material which forms the subject matter of adjudication to the exclusion of the other party causes a serious violation of natural justice. In the present case, this has resulted in grave prejudice to officers whose careers are directly affected as a consequence.

  1. The non-disclosure of relevant material to the affected party and its disclosure in a sealed-cover to the adjudicating authority (in this case the AFT) sets a dangerous precedent. The disclosure of relevant material to the adjudicating authority in a sealed cover makes the process of adjudication vague and opaque. The disclosure in a sealed cover perpetuates two problems. Firstly, it denies the aggrieved party their legal right to effectively challenge an order since the adjudication of issues has proceeded on the basis of unshared material provided in a sealed cover. The adjudicating authority while relying on material furnished in the sealed cover arrives at a finding which is then effectively placed beyond the reach of challenge. Secondly, it perpetuates a culture of opaqueness and secrecy. It bestows absolute power in the hands of the adjudicating authority. It also tilts the balance of power in a litigation in favour of a dominant party which has control over information. Most often than not this is the state. A judicial order accompanied by reasons is the hallmark of the justice system. It espouses the rule of law. However, the sealed cover practice places the process by which the decision is arrived beyond scrutiny. The sealed cover procedure affects the functioning of the justice delivery system both at an individual case- to case level and at an institutional level. However, this is not to say that all information must be disclosed in the public. Illustratively, sensitive information affecting the privacy of individuals such as the identity of a sexual harassment victim cannot be disclosed. The measure of nondisclosure of sensitive information in exceptional circumstances must be proportionate to the purpose that the non-disclosure seeks to serve. The exceptions should not, however, become the norm.

10. Immunity of Police Officers from Disclosing the Whereabouts of Information – Section 131

Now we will go through the provision relating to the Immunity of Police Officers from Disclosing the Whereabouts of Information

Section 131 of the Bhartiya Sakshya Adhiniyam (Section 125 of the Evidence Act) specifically states that “No Magistrate or police-officer shall be compelled to say whence he got any information as to the commission of any offence, and no revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.

Explanation. -“Revenue-officer” in this section means any officer employed in or about the business of any branch of the public revenue.”

The provision is very clear and it is obvious that while under examination before a court a police officer cannot be asked to disclose his source of information relating to the offence.

11. Privilege with Respect to Professional Communications between Lawyer and Client Sections 132 to 134 of the Bhartiya Sakshya Adhiniyam

Now we will move on to the Privilege with Respect to Professional Communications between Lawyer and Client.

Sections 132 to 134 of the Bhartiya Sakshya Adhiniyam (Sections 126 to 129 of the Evidence Act) deal with the privilege relating to professional communications between a lawyer and his client. Under Sections 132 (Ss.126 and 127 of the Evidence Act) no advocate shall be permitted to disclose any communication made to him in the course of and for the purpose of his duties as an advocate, unless his client expressly consents so to do. Nor can an advocate be compelled to state the contents of any document which he became acquainted with in the course of his professional employment.

In other words, when an advocate is professionally engaged by a client, all communications which pass between them in the course of and for the purpose of the service are privileged and the advocate cannot be permitted to disclose them. Such a statement, even if volunteered by the counsel, is inadmissible in evidence.

For the legal assistance of a professional lawyer to be effective there must be free and frank disclosure of every critical information from the side of the client. Section 132 (Section 126  of the Evidence Act)lends assurance to the client that such communications would be privileged and cannot be disclosed.

It has to be noted that this protection will not extend to communications made in furtherance of any illegal purpose and to facts observed by lawyer during his employment evidencing the commission of any crime or fraud.

Provisos and illustrations (b) and (c) deal with these aspects.

Section 132 reads as under:

  1. (1) No advocate, 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 service as such advocate, 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 service, or to disclose any advice given by him to his client in the course and for the purpose of such service:

Provided that nothing in this section shall protect from disclosure of—

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

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

(2) It is immaterial whether the attention of such advocate referred to in the proviso to sub-section (1), 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 profession By virtue of Section 129, the privilege, extents to communications with professional legal advisers also.

al service has ceased.

Illustrations.

(a) A, a client, says to B, an advocate—”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, an advocate—”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, an advocate, to defend him. In the course of the 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 service. This being a fact observed by B in the course of his service, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure.

(3) The provisions of this section shall apply to interpreters, and the clerks or employees of advocates.

In Section 132 of the Bhartiya Sakshya Adhiniyam 2 Sections of the Indian Evidence Act Sections 126 and 127 are integrated into one Section. Above Subclause (3) corresponds to S. 127 of the Evidence Act.

In the Bhartiya Sakshya Adhiniyam, the words ‘barrister, attorney, pleader or vakil’ are replaced by the single word ‘Advocate’.

The word ‘employment’ is replaced by ‘Service’.

Section 133 (Section 128 of Evidence Act), provides that:

“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 132; and, if any party to a suit or proceeding calls any such advocate, as a witness, he shall be deemed to have consented to such disclosure only if he questions such advocate, on matters which, but for such question, he would not be at liberty to disclose.”

By virtue of Section 134 (Section 129 of the Evidence Act), the privilege, extents to communications with professional legal advisers also.

Section 134 reads as:

No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal 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.

12. When can the Lawyer of the Opposite Side be Summoned as Witness

There is no direct statutory bar or legal disability in summoning the counsel of the opposite party as a witness. But such practice is generally discouraged by the courts unless the evidence sought to be elicited from the counsel is very material for the case. When a lawyer is so summoned he has to relinquish his vakalath.

In this regard, in Yovas v. Immanueal AIR 1996 Ker 1, a Division bench of the High Court of Kerala speaking through (Justice) K. T. Thomas.J, observed as follows:

“There are some inhibitions to be observed when a counsel of one of the parties is to become a witness in a case. One such inhibition is that the counsel cannot be permitted to divulge anything which he gathered from his client in view of the interdict contained in S.126 of the Evidence Act. He is debarred from 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 the counsel is made a witness. Then he would normally be obliged to relinquish his engagement in the case. This was earlier a norm of professional ethics and now this has been transformed into a rule ofconduct under R.13 of Chapter II of Part VI of the Bar Council of India Rules. It reads thus:

“An advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact he should not continue to appear as an advocate if he can retire without jeopardising his client’s interest”.

Here, of course, the test is whether the advocate concerned would be “a witness on a material question of fact”….

…..If the court or the authority concerned, after enquiry finds that an examination of the advocate as a witness is indispensable and hence the disengagement of the advocate from the case would not jeopardise the interest of the party for which he appears, then the court or the authority concerned can ask the advocate to relinquish the vakalath.”

13. Is There Any Immunity For The Press/Media From Disclosing The Whereabouts Of Information

There is no specific provision in the Evidence Act dealing with the privilege or immunity of the Press from disclosure of its source of information. In Javed Akther v. Lana Publishing Company Private Limited and Others, AIR 1987 Bom. 339, Bombay High Court through Justice Sujata Manohar, J. surveyed through various precedents in UK and USA and laid down the law on the point. The Court observed as under:

“It is undoubtedly true that a disclosure of a newspaper source of information should not be ordered if such disclosure would be injurious to public interest. Freedom of the media to investigate and report on matters which are of public interest is essential to a free society. As a result, information which would otherwise not be available is made available to the public. If the name of a person who gives confidential information to a newspaper is required to be disclosed by the newspaper, it is possible that a newspaper’s sources of information may dry up and the public would not have the benefit of disclosure of matters which are of public importance. But this protection can be extended only when the information or material published is of public importance, as for example, if the information relates to malpractices in a governmental organisation. Even information relating to the private life of a public figure may be of public importance if such information has a bearing on the manner in which the public figure discharges his duties or if such information reflects on the suitability of such a public figure to hold the office that he occupies. But, unless it can be shown that the information is such as needs disclosure and publicity in public interest, there is no reason for extending any special protection, to the source of everything which may be published in a newspaper, periodical, journal or any other publication.”

About the case in hand the court permitted disclosure of alleged informants upon interrogatory and held:

“18. In the present case the article does not disclose any information which can be said to be of public importance or public interest. The article merely comments on the private life of a film script writer and his actress wife. It has no bearing on any matter of public importance. The disclosure of names asked for is directly material to the plaintiffs case. It is not a case where any special protection needs to be given to the third defendant. There is no investigative journalism involved here, which may be of value to an open and free society. It is merely muckraking.”

With that we come to the close of this Module on the subject ‘Law of Evidence’. Hope you enjoyed and found it useful.

See you again in the next module with another interesting topic on the ‘Law of Evidence

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Exercise Questions

  1. What is the meaning of “Relevant” and “Relevancy” in the context of the Bhartiya Sakshya Adhiniyam /Evidence Act? What is the purpose of “Relevancy” under Section 3 of the Bhartiya Sakshya Adhiniyam ?
  2. What is Logically Relevant may not be Legally Relevant. Elucidate.
  3. Distinguish Facta Probanda and Facta Probantia.
  4. What is Relevant may not be legally Admissible. Elucidate
  5. Communication between husband and wife are privileged. Explain the scope of prohibition from disclosure of such communication.
  6. Explain the scope of Privilege associated with the Evidence as to Affairs of State. Elucidate the powers of the court to inspect the document of which privilege is claimed?
  7. Explain the scope of Privilege with Respect to Professional Communications between a Lawyer and Client.
  8. Is there any Immunity for the Press/Media from disclosing the whereabouts of information?