Privilege

Privilege: India

Susmit Pushkar and Susanah Naushad

Khaitan & Co

Scope of the privilege

1. Are communications between an attorney and client protected? Under what circumstances?

India

Professional communications between attorneys and clients are protected in India as privileged communications under the Indian Evidence Act 1972 (IEA). Section 126, IEA prohibits attorneys from disclosing to any third party, except with the express consent of the client, (i) any communication made to them by their client, (ii) the contents of any documents exchanged between them and their clients, and (iii) advice provided by them to their client. Such communication or document exchange should have taken place during the course, and for the purpose, of their engagement. Privilege does not extend to communications made in furtherance of any illegal purpose, or any communication that shows that crime was committed since the commencement of the attorney’s employment.

Section 129 expressly prohibits a court from compelling a client to disclose “any confidential communication” exchanged with its legal adviser, except when the client willingly offers him or herself as a witness.

Section 227 of the Companies Act 2013 (CA 2013) provides that the legal adviser is not bound to disclose any privileged communication made to him or her by the client in that capacity, to the Tribunal or to the central government or to the Registrar or to an inspector appointed by the central government, except as respect the name and address of his or her client.

Answer contributed by Susmit Pushkar and Susanah Naushad

2. Does the privilege only protect legal advice? Does it also protect non-legal communications between an attorney and client, such as business advice?

India

The legal advice is protected by privilege. Communication/ documents prepared in anticipation of litigation could in the circumstances of the case be protected by privilege. In Larsen & Toubro Limited v Prime Displays (P) Ltd (2003) 114 CompCas 141 (Bom), the Bombay High Court held that ‘the privilege that attaches to a document coming into existence in anticipation of litigation is the legal professional privilege’. In Gurunanak Provisions Stores v Dulhonumal Savanmal And Ors, AIR 1994 Guj 31, the Gujarat High Court opined:

 

 [N]o doubt the privilege afforded under the aforesaid provisions to a legal adviser is of a very limited character. It protects only such communications as are made to the legal adviser in confidence in the course and for the purpose of his employment. No doubt, it is true that mere absence of litigation or prospect thereof, at the time the confidential communications are made will not constitute an excuse for its disclosure

 

However, when the advice given by the attorney to the client has no real or substantial connection to any law, the same would be considered non-legal communication. Non-legal communications such as business advice would not be protected as privileged, as it would not be “in the course and for the purpose of his employment” as such attorney. In Municipal Corporation of Greater Bombay v Vijay Metal Works (AIR 1982 Bom 6), the Bombay High Court cautioned that advice that is executive in nature would not be protected.

Answer contributed by Susmit Pushkar and Susanah Naushad

3. Is a distinction made between legal advice related to litigation and other legal advice?

India

Indian law makes no distinction between legal advice related to litigation and other legal advice. Privilege is accorded to legal advice and communication in anticipation of litigation. There are no bright-line tests to determine the earliest time when litigation is anticipated.

Answer contributed by Susmit Pushkar and Susanah Naushad

4. What kinds of documents are protected by the privilege? Does it cover documents that were prepared in anticipation of an attorney–client communication? Does it cover documents prepared during an attorney-led internal investigation?

India

Under section 126 IEA, the following documents or communications would be considered privileged when such communication or document exchange takes place during the course, and for the purpose, of the attorney–client engagement:

  • communication made to the attorney by their client,
  • contents of documents exchanged between attorney and her client, and
  • advice provided by attorney to her client.

Documents prepared in anticipation of a litigation would be protected. In Larsen & Toubro, the Bombay High Court held that document coming into existence in anticipation of litigation is privileged. Documents prepared in anticipation of attorney–client communication ought normally to be covered in that description. Documents prepared during an attorney-led internal investigation, which would normally be in anticipation of litigation and part of communication made to the attorney, should also be privileged.

Answer contributed by Susmit Pushkar and Susanah Naushad

5. To what extent must the communication be confidential? Who can be privy to the communication without breaking privilege?

India

The communication must be confidential, intended for, and given to, the client. India does not have the concept of limited or selective waiver in the context of attorney–client privilege. Privilege can be waived if the client discloses information to third parties. Communication of legal advice to accountants and auditors, for instance, may not be protected by privilege.

 As per section 127 of the IEA, interpreters and clerks or servants of the attorney can be privy to the communication without breaking privilege.

Answer contributed by Susmit Pushkar and Susanah Naushad

6. Is the underlying information privileged if it can be obtained from a non-privileged source?

India

Information obtained from a non-privileged source is not protected by attorney-client privilege, even though the said information could also be part of the attorney-client communication. If the underlying information is available with third parties, such third parties not bound by the attorney-client relationship can be compelled to tender evidence as regards the underlying information.  The communication that has already been disclosed to third parties cannot be protected under privilege under section 126 of the IEA.

Answer contributed by Susmit Pushkar and Susanah Naushad

7. Are there any notable exceptions or caveats to the privilege?

India

As per section 126 of the IEA, the law does not protect any communication made in furtherance of any illegal purpose, or any communication or document that shows that a crime or fraud was committed since the commencement of the attorney’s employment. Companies or individuals cannot normally refuse to supply information to enforcement agencies on the ground of privilege, unless the governing statute provides for it.

Answer contributed by Susmit Pushkar and Susanah Naushad

8. Are there laws unrelated to privilege that may protect certain communications between attorney and client?

India

There are no laws unrelated to privilege that may protect communications between attorney and client.

Answer contributed by Susmit Pushkar and Susanah Naushad

Protected parties

9. To what extent does the privilege extend to in-house counsel?

India

Privilege does not extend to in-house counsel in relation to his or her communication and advice to other officials of the company. Professional communications between an in-house counsel and officers, directors and employees of a company are also not protected as privileged communications between an attorney and her client.

Answer contributed by Susmit Pushkar and Susanah Naushad

10. Does the privilege protect communications between an attorney and a corporate client’s employees? Under what circumstances? And who possesses the privilege - the corporate client, the employee or both?

India

Communications between an attorney and a corporate client’s employees, communicating on behalf of, and seeking legal advice for, the company, would be protected by privilege. The corporate acts through its employees to seek legal advice, hence the protection of privilege would be available to the corporate and employees designated for the purpose of communicating with, and seeking legal advice from, the attorney. The retainer agreement with attorney must provide for clear lines of communication and adequate safeguards must be in place to maintain confidentiality and privilege with the designated employees too. An in-house attorney’s communication with a corporate client’s employees is not protected by privilege.  

Answer contributed by Susmit Pushkar and Susanah Naushad

11. Does the privilege protect communications between non-lawyer employees of a corporate client if they are acting at the direction of counsel or gathering information to provide to counsel?

India

Communications pursuant to attorney-client engagement between an attorney and non-lawyer employees of a corporate client would be protected by privilege.

Answer contributed by Susmit Pushkar and Susanah Naushad

12. Must the attorney be qualified to practise in your country to invoke the privilege?

India

The attorney must be qualified to practice and enrolled as an advocate under the Indian Advocates Act 1961) to invoke the privilege.

Answer contributed by Susmit Pushkar and Susanah Naushad

13. Does the privilege extend to non-lawyer third parties? In which circumstances does the privilege protect communications with third parties if they are providing advice related to a legal matter? What measures in such circumstances should an attorney take to protect those communications?

India

Privilege is not available to third parties (eg, auditors, accountants, media consultants). Only attorneys qualified to practise law in India can provide advice related to a legal matter.

Answer contributed by Susmit Pushkar and Susanah Naushad

14. Does the privilege apply to communications with potential clients?

India

Privilege would not apply to communications with potential clients, as there would be no attorney–client relationship.

Answer contributed by Susmit Pushkar and Susanah Naushad

Ownership of the privilege

15. Does the attorney or the client hold the privilege? Who has rights under the privilege?

India

The privilege is the privilege of the client and not of the attorney. The attorney is bound by that privilege, unless waived by the client.

Answer contributed by Susmit Pushkar and Susanah Naushad

16. Can the privilege be waived? Who may waive it?

India

Privilege can be waived by the client through express consent. It is not necessary for such express consent to be in writing. Consent can be inferred from the facts and circumstances of each case.

Answer contributed by Susmit Pushkar and Susanah Naushad

17. Is waiver all or nothing? Is it possible to waive the privilege for certain communications but not others?

India

The nature of communications and legal advice would determine the aspect of severability in the context of the purpose of wavier. If the communications are unrelated and severable, it may be possible to waive privilege for certain communications; however, there are no direct judicial precedents on this point.

Answer contributed by Susmit Pushkar and Susanah Naushad

18. If two defendants are mounting a joint defence, can they share privileged information without waiver? What about two parties with a common interest?

India

Under Indian law, two defendants mounting a joint defence would not be able to share privileged information without a waiver. The communications inter se between the defendants mounting a joint defence would not be privileged. Similarly, two parties with a common interest would not be able to share privileged information without a waiver.

Answer contributed by Susmit Pushkar and Susanah Naushad

19. Is it common for attorneys and clients to agree to a confidentiality provision in a contract?

India

Yes, it is common to agree to a confidentiality provision in the contract between attorneys and clients.  

Answer contributed by Susmit Pushkar and Susanah Naushad

Enforcement considerations

20. Describe the legal basis of the rules governing the privilege. Are these rules found in a constitution or statute, or in case law?

India

The rule governing privilege are principally provided under the IEA 1872. The Code of Civil Procedure 1908, the Companies Act 2013 and the Bar Council of India Rules 1975 may have application in a given case. Judicial precedents have interpreted these provisions and are thus binding.

Answer contributed by Susmit Pushkar and Susanah Naushad

21. Is the privilege primarily characterised as a procedural or evidentiary rule, or is it characterised as a substantive right?

India

In India, privilege is considered as an evidentiary rule.

Answer contributed by Susmit Pushkar and Susanah Naushad

22. Describe any differences in how the privilege is applied in the criminal, civil, regulatory or investigatory context.

India

As mentioned above, in India, privilege is characterised as an evidentiary rule. Therefore, there is no difference in how the privilege is applied in criminal, civil, regulatory or investigatory context, as the IEA would apply in all the aforementioned contexts in the same way as far as trial is concerned and therein arises the question of compelling either production of privileged advice or communication or the attorney to testify.

In the context of enforcement investigations, corporates may be compelled to provide privileged communication or advice to the investigation agency.

Answer contributed by Susmit Pushkar and Susanah Naushad

23. Are the rules regarding the privilege uniform nationwide or are there regional variations within your country?

India

The rules regarding the privilege are uniform nationwide, as these are governed by central legislation.

Answer contributed by Susmit Pushkar and Susanah Naushad

24. Does a professional organisation enforce the maintenance of the privilege among attorneys? What discipline do attorneys face if they violate privilege rules?

India

The State Bar Council where the attorney is enrolled can take action against him or her for professional misconduct, under section 35 of the Advocates Act 1961, which may include reprimand, suspension, or even removal of the name of the advocate from the state roll of advocates. Professional misconduct includes violation of privilege rules.

Answer contributed by Susmit Pushkar and Susanah Naushad

25. What sanctions do courts impose for violating the attorney–client privilege?

India

If the courts find that a certain document or communication is legally privileged, the court will not admit it in evidence. The appropriate remedy for breach of attorney–client privilege would be to complain to the jurisdictional state bar council or seek independent legal remedy.

Answer contributed by Susmit Pushkar and Susanah Naushad

26. How can parties invoke the privilege during investigations or court proceedings? Can the privilege be invoked on the witness stand?

India

Privilege can be invoked during court proceedings by both attorney and the client. Privilege could be invoked to resist disclosure of documents, appearing as witness and answering questions on the witness stand that could violate attorney–client privilege.

During criminal investigations, under section 91 of the Code of Criminal Procedure, 1973, there is no recognition that privileged advice or communication ought not be produced to the investigation agency seeking production of document. The Companies Act 2013, however, recognises privilege in the context of investigation by the Serious Fraud Investigation Office into offences of corporate fraud. However, it must be mentioned that there is an overarching right against self-incrimination that is a fundamental right under the Constitution of India.

Answer contributed by Susmit Pushkar and Susanah Naushad

27. In disputes relating to privilege, who typically bears the burden of proof?

India

The party who asserts the privilege (ie, the client or attorney) would bear the burden of proof.

Answer contributed by Susmit Pushkar and Susanah Naushad

28. Does the privilege protect against compulsory disclosures such as search warrants or discovery requests? Is there a distinction between documents held by the client and documents held by the attorney?

India

Privilege does not protect against compulsory disclosures, such as search warrants or discovery requests by enforcement agencies, with the exception of the Serious Fraud Investigation Office, as mentioned above. It would be immaterial whether the documents are held by the client or the attorney.

Answer contributed by Susmit Pushkar and Susanah Naushad

29. Describe the choice-of-law rules applied by your courts to determine which country’s privilege laws apply. To what extent does your country recognise the validity of choice-of-law provisions in contracts, particularly as they apply to privilege?

India

The issue of choice-of-law vis-à-vis legal privilege has not been authoritatively settled by Indian courts. As a general matter, privilege, being evidentiary rule under Indian law, the Indian law would apply. The choice-of-law rules are applied to determine the governing law of contracts to determine the substantive rights and obligations of parties.

Answer contributed by Susmit Pushkar and Susanah Naushad

Termination of the privilege

30. Does the privilege terminate on the death of either the attorney or the client?

India

The privilege does not terminate on the death of either the attorney or client.

Answer contributed by Susmit Pushkar and Susanah Naushad

31. Does the privilege terminate on the conclusion of the attorney–client relationship?

India

The obligation of privilege will remain operative even after the employment of the attorney ceases and does not get terminated by the termination of the litigation.

Answer contributed by Susmit Pushkar and Susanah Naushad

32. Is the privilege destroyed if the client communicates information to the attorney to further a crime or perpetuate a fraud?

India

Yes. Privilege does not protect a client’s communications made to the attorney to further any illegal purpose, crime or fraud. In fact, under the general criminal law, the attorney may be obligated to report the intention of the client to commit a crime or perpetuate a fraud.

Answer contributed by Susmit Pushkar and Susanah Naushad

33. Is the privilege terminated if the attorney makes an inadvertent disclosure? If such a disclosure is made, can the attorney retrieve the privileged information or otherwise correct the error?

India

Privilege will not be terminated if the attorney makes an inadvertent disclosure. If an inadvertent disclosure is made, the attorney can request the recipient to delete any copies of the privileged communication inadvertently disclosed to a third party or request return of the privileged material. The attorney can put the third party to notice regarding the privileged and confidential nature of the information and liability in the case of misuse of privileged information.

Answer contributed by Susmit Pushkar and Susanah Naushad

34. Is the privilege terminated if a third party is included in the communication or is subsequently forwarded the communication?

India

If a client discloses otherwise privileged communication or advice to third parties, the privilege will be terminated and the third party can be compelled to testify. When the privileged communication is made known to third parties there is no ‘confidentiality’ for either the client or the advocate claiming privilege.

Answer contributed by Susmit Pushkar and Susanah Naushad

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