Annotation
"A privilege may not be a right, but, under the constitution of the country, I do not gather that any broad distinction is drawn between the rights and the privileges that were enjoyed and that were taken away." --Charles Tupper

Abstract
The idea of documents being privileged is common sense when you understand it but takes a little bit of explaining. An email or letter from you to aqualified lawyer (barrister or solicitor) asking for advice, and the written legal advice you receive, are examples of documents which are privileged. The reason why the law does not require such documents to be provided to the other side is obvious: it would give a party an unfair advantage to see advice about the strengths and weaknesses of the other side's case, and if written advice had to be handed over it would lead to people only obtaining advice from a lawyer by word of mouth, and never having anything in writing, with all the risks of forgetting or misunderstanding which that would entail.

The main practical consequence of a document being privileged is that you don't have to show it to the other side at the disclosure of documents stage of litigation because you can claim privilege. You can only use at trial documents you have disclosed so you might choose to waive (abandon) your privilege for a document.

This concept is largely based on effective and fair trial principle and hence ensures individual right seeking act, a generous protection.

Introduction
It has been observed that a sound system of the administration of justice should possess three ingredients, namely:
A well planned body of law based on wise concepts of social justice;
A judicial hierarchy comprised of the Bench and the Bar, learned in the law and inspired by high principles of professional conduct; and
existence of suitable generation to ensure fair trial.[2]

The concept of "privileged documents" is a protection or say immunity awarded to a party to ensure fair trial and compliance with the natural justice principles for non-disclosure of information which forms the nucleus of the case. It is out of regards to the interest of justice, which cannot go on without the aid of men skilled in jurisprudence in the practice of Courts, and in those matters affecting rights and obligations, which form the subject matter of all judicial proceedings. If the privilege did not exist at all, everyone would be thrown upon his own legal resources. Deprived all professional assistance, a man would not venture to consult any skilled person, or would only dare to tell his counsel half his case. The following discussion enumerates and amplifies the laws dealing with privileged documents in India.

Preamble
"To dwelve into the concept of Privileged documents and associations thereof"

2.1 What are Privileged documents?
Privilege is a legal right which allows persons to resist compulsory disclosure of documents and information. The fact that a document is sensitive or confidential is not a bar to disclosure, although privileged documents must be confidential.

Privileged documents are those which need not be disclosed to the other party, neither before nor after the commencement of the trial. Their non-disclosure is allowed by the law itself and the party having such privilege can claim it as a legal right of not disclosing the document containing the concerned information. Such party cannot be forced to present such documents, neither by judicial discretion nor by the opponent party, no matter how crucial information is affixed in such documents.

2.2 Historical legacy of Privileged documents
This concept originated in the English law, wherein they applied certain broad and open ended principles solely on the basis of judicial discretion regarding the voluntary non-disclosure of certain documents in a trial before the other party, which fulfilled the criteria set by the judges.

Later, this principle was included in the laws related to civil cases in England, from which India also adopted the same with a few changes as per the Indian legal context.

2.3 Nature of Privileged documents
They are confidential in nature.
It is assessed as a legal right.
It is a negative right in the coating of a privilege.
It is free from judicial discretion and has the force of the law.
It is an essence of the natural justice principles practiced in the trial process.
All kinds of documents can be privileged which are not mandated by law in any manner.
The party claiming such privilege has to make an express application to the court for getting this relaxation.
It is a means to an end and not an end in itself.

2.4 Scope of Privileged documents
The scope of this privilege is limited to documents of certain nature and hence cannot be applied on all kinds of documents related to a case. This privilege traces the force of codified law and hence cannot override that in any aspect, be it judicial interpretation or any other opposition claim.

2.5 Purpose and object of Privileged documents
To ensure free and fair trial;
To prevent any party from taking unfair advantage of the confidential documents of the other party;
To make available a uniform platform for the independent and uninfluenced arguments from both the sides;
To ensure the substantial delivery of justice.

Privileged Documents
Having said that anything created before litigation has commenced is not privileged and anything created after litigation has commenced is privileged, in fact it is a bit more complicated than that. The actual legal test of whether a document is covered by litigation privilege (as it is called) is whether the main reason why the document was created is in contemplation of the litigation. So if you take a photo because you are thinking of commencing litigation (or because you expect someone else is about to commence litigation against you) that photo will be privileged even if it is several months before litigation actually commences.

If you have commenced litigation against someone who has damaged your wall, you might instruct a surveyor to write a report on what damage has been caused to the wall and how much it is likely to cost to repair so that you can (if the court/tribunal allows) use that report at trial. That report will be privileged because the surveyor is writing it (creating it) in contemplation of litigation. But if you ask a builder to give you a written quotation for repairing the wall, the quotation will not be privileged because the main reason why the builder has written the quotation is simply because you are a potential customer and they would like the work. So although most documents created after litigation has commenced are privileged it is actually why the creator of a document created it which determines whether it is privileged or not.

Sometimes people seek legal advice just so they know what their rights and duties are, without any litigation being in sight and emails/letters seeking that advice, and the written advice itself, are also privileged. This is known as legal advice privilege.

There are two main types of privilege protection under English and US law. Broadly, these protect communications between lawyer and client (attorney-client privilege under US law and legal advice privilege under English law) and documents prepared for litigation (the work product doctrine under US law and litigation privilege under English law).

There are strict rules for when each of these types of privilege apply.

Legal advice privilege attaches to confidential communications and evidence of those communications, between a client and its lawyers which were created for the purpose of giving or obtaining legal advice. This will include presentational or strategic advice provided that it relates to a client's legal rights and obligations. It will not apply to advice, for example, of a purely strategic or commercial nature. Documents such as internal memoranda prepared by employees or third parties are not protected by legal advice privilege as there is a narrow legal definition of who the 'client' is. It does not apply to communications with third parties.

In India, Sections 126 to 129 of the Indian Evidence Act, 1872 deal with privileged that is attached to professional communication between a legal adviser and the client. Section 126 and 128 mention circumstances under which the legal adviser can give evidence of such professional communication. Section 127 provides that interpreters, clerks or servants of legal adviser are restrained similarly. Section 129 says when a legal adviser can be compelled to disclose the confidential communication which has taken place between him and his client.

Section 126 states that no barrister, attorney, pleader or Vakil shall at any time be permitted to disclose
any communication made to him by or on behalf of his client or
any advice given by him to his client in the course and for the purpose of his employment;
or state the contents or conditions of any document with which he has become acquainted in the course and for the purpose of his employment.

There are certain exceptions to this rule. This Section does not protect from disclosure:
Any communication made in furtherance of any illegal purpose;

Any fact observed in the course of employment showing that any crime or fraud has been committed since the commencement of the employment.

The protection afforded under this Section cannot be availed of against an order to produce documents under Section 91(3) of the Code of Criminal Procedure. The document must be produced, and then, under Section 162(4) of this Act, it will be for the Court, after inspection of the documents, if it deems fit, to consider and decide any objection regarding their production or admissibility.[3]

Under Section 126, it is not that every communication made by a person to his legal adviser is protected from disclosure but only those communications made confidentially with a view to obtain professional advice are privileged. It should also be remembered that the privileged extends only after the creation of pleader-client relationship and not prior to that.[4] Also, communication must be made with the lawyer in his capacity as a professional adviser[5] and not as a friend[6].

Considering the exception to this rule, existence of an illegal purpose will prevent any privilege attaching to any communication. Thus, communications made with a view to carry out a fraud are not privileged.[7]

Litigation privilege attaches to confidential documents that were created for the dominant purpose of actual or pending legal proceedings. It includes documents prepared by employees and third parties.
It is important to understand the distinction between confidential and privileged documents. Not all communications between a client and its lawyers are privileged even if they are of a confidential nature. However, privilege will no longer apply if a document loses its confidential status – this makes it important to maintain confidentiality in all privileged documents.

Because the disclosure obligation also relates to any new document that may be created even after the lists have been exchanged, any internal documents discussing the merits of the litigation should be created with care. If new documents are created in the future, there is a risk that they may be disclosed to the other side unless they are covered by privilege. Care must therefore be taken over what is said in, for example, internal reports, board minutes and emails about the subject matter of the dispute. Reports about the litigation and its merits should therefore be prepared by internal or external lawyers, otherwise such reports should do more than pass on or summarize such legal advice.

Any documents recording discussions between the parties aimed at reaching a compromise or settling the dispute will be 'off the record', in the sense that they may not be used in evidence by either party. Such documents are usually referred to, and labeled, as 'without prejudice' communications.

Why a document which is created is important?
You can see from the above that any document created before you thought of getting legal advice cannot be covered by legal advice privilege and any document created before litigation was contemplated cannot be covered by litigation privilege. However it does not always follow that everything created after you thought of getting legal advice, or after you first contemplated litigation, is privileged - it depends on why the document was created.
For example, suppose someone else is responsible for making your wall collapse. You will have two things on your mind:
a. the practical arrangements you need to make to have the wall rebuilt - so you might go to three builders and ask for quotations for the rebuilding work - you would have done this even if no-one else was responsible for the collapse.
b. the possibility of making a legal claim against the person responsible for the collapse - so you might engage a surveyor to report on the cause of the collapse, and on the likely cost of the work to reinstate it, which is the amount of compensation you will be claiming in the litigation.

Generally the three quotations will not be privileged because, although they happen to be relevant to the litigation, your main reason for asking for them to be produced is simply to deal with the practical problem of a collapsed wall, irrespective of the question of litigation. The surveyor's report, on the other hand, will be privileged because you have commissioned it to prove your case in the litigation.

Of course each situation is different - if the construction and/or location of the wall and/or ground conditions are unusual, you might commission an expert report primarily to deal with the practical problem of rebuilding the wall, rather than because of contemplated litigation, but the above example gives the general idea of the distinction.

Here is another example:
If you have an audio recording (or, indeed a video) of a meeting with the other side (held before litigation was contemplated and so not privileged) which is probative then it - i.e. the MP3 or MP4 file Itself - should be disclosed, but whether a transcript - or a draft of a transcript - of the recording is privileged depends on when and why the transcript was made. If:-
# you produced the transcript as part of preparing your case in this litigation, or
# you produced the transcript because you were contemplating that there might be litigation at some point, or
# you produced the transcript so that you could show it to a barrister or solicitor as part of the process of obtaining legal advice,

the transcript will be aprivilegeddocument. On the other hand if you produced the transcript, or a draft of a transcript, of the meeting, at the time, and as a matter of course to avoid disputes, and not because litigation or legal advice was contemplated, then the transcript is not privileged.

If a copy is taken of an unprivileged document and the copy is then marked up – e.g. with questions or comments – and the marking up is done in order to obtain legal advice, or as part of the process of litigation - then the original document remains unprivileged but the marked up copy is covered by legal advice privilege and/or litigation privilege.

Other types of privilege
Without prejudice correspondence in which settlement offers are made and responded to is also privileged.
As well as documents covered by legal advice privilege or litigation privilege, and without prejudice correspondence, there are some other cases where it may be possible to claim that a document is privileged – for example documents which might expose a party to the risk of criminal prosecution. The legal rules governing these other types of "privilege" are particularly complex and if you think that this might apply then it is particularly important to seek advice from a qualified lawyer.

Where an insurance company is involved in the litigation (e.g. a legal expense insurer or an indemnity insurer) the insurance company may in some cases and in some sense also be a "client" and privilege can arise in some cases in respect of communications with the insurance company. This is a particularly complex and if you think that this might apply then it is particularly important to seek specific advice from a qualified lawyer.

Waiving Privilege
Many privileged documents you will want to keep confidential because, for example, letting other parties see a written advice from a barrister would reveal to them which parts of your case your barrister thinks are the weaker points, and you do not want other parties to see that because it may give them a tactical advantage. However some privileged documents - e.g. photographs taken when litigation was contemplated - you will want to use at trial so you would provide copies of these to the other side. Providing copies means that you are "waiving privilege" so that they are no longer privileged, and allows you to then use them later on at the trial.

If an audio recording is disclosed and its contents need to be referred to at the trial, (and assuming no suitable transcript was made before litigation was contemplated) it is usual for the parties, at some stage well before the trial, e.g. before the exchange-of-witness-statements stage, to agree the wording of a transcript of all or part of the recording to be included in the trial bundle, because reading a transcript at trial is much easier than listening to an audio file. At the time of disclosure of Documents you may only have made a rough transcript (and not had time to play the difficult parts multiple times to try to get the transcript as accurate as you can) and, if so, you do not have to provide the other side with a copy of that recently made rough transcript if it is privileged. But it you happen to be further advanced and have already been able to make an accurate transcript of the entire recording (or of those parts which are relevant) and check it, you canchooseto waive privilege and provide a copy of that transcript as well as the audio file itself.

The same principle applies if a document is disclosed which is difficult to read (e.g. because it is handwritten). To assist the court/tribunal, normally the parties, at some stage well before the trial (e.g. before the exchange of witness statements stage) will agree the wording of a typed transcript to be included in the trial bundle (inserted just after a copy of the difficult-to-read document which should also be included in the trial bundle).
At the time of Disclosure of Documents you may only have made a rough transcript (and not had time to concentrate on the parts which are most difficult to read so that you can get the transcript as accurate as you can) and, if so, you do not have to provide the other side with a copy of that recently made rough transcript, if it is privileged, when you disclose the difficult-to-read document. But it you happen to be further advanced and have already been able to make an accurate transcript of the document and check it, you canchooseto waive privilege and provide a copy of the transcript at the same time as you provide a copy of the difficult-to-read document itself.

Relaxation provided by Privileged Documents
The concept of privileged documents provide the following perks and relaxations to the party applying for it :
# There is an immunity granted for non-disclosure of documents.
# The parties can effectively use the legal confidential documents for the effective presentation of the case on its concerned merits from each side, respectively, without having the consciousness of the fact that the other party may find a pre-counter argument for their affirmations.
# The parties have a choice of either retaining or waiving this privilege.

Judicial scrutiny: Indian perspective
Calcraft v. Guest (1898)1 QB 759
The scope of Sections 126, 27 and 128 is different from that of Section 129. The former Sections prevent a legal adviser from disclosing professional communication. Section 129 applies where a client is interrogated, whether he is a party to a suit or not. Section 129 states that no person shall be compelled to disclose in the Court any communication between him and his legal adviser unless he offers himself as witness. Thus, Section 129 makes a person immune from compulsory process. This immunity may extend to third parties, such as consultant who are recruited to help with the preparation of the case for trial. However, once the material has got out, it should not be kept out of Court on account of its confidential nature any more than would any other confidential matter.

Munchershav Bezanji v. The new Dhurumsey S. & W. Company (188004 Bom 576
If a party becomes a witness of his own accord he shall, if the Court requires, be made to disclose everything necessary to the true comprehension of his testimony.

D. Veeraseharan v. State of Tamil Nadu 1992 Cr. L.J. 2168 (Mad)
In this case, an unsigned and undated letter which was allegedly written by the advocate-accused to his client-terrorist to remain absconding was held to be professional communication and not ‘ abetment’ and thus could not be used against the advocate.

Gurunanak Provisions Stores v. Dalhonumal Savanmal AIR 1994 Guj 31
But in this case, the Gujarat High Court held that disclosure was allowed where the client desired to obtain decree for money on basis of forged promissory note.

Jones v. Great Central Railway 1910 AC 4
The rule is established for the protection of the client, not of the lawyer, and is founded on the impossibility of conducting legal business without professional assistance, and on the necessity, in order to render that assistance effectuated, of serving full and unreserved intercourse between the two.

Rajesh Bhatia And Ors. vs G. Parimala And Anr 2006 (3) ALD 415
In para 69 it is dealt as under:
Although the obligation to produce documents for inspection is coextensive with the obligation to disclose their existence, there are many relevant documents the existence of which must be disclosed in the list of documents but which are nevertheless protected from production. The grounds on which this protection can be claimed can be classified under the following main heads:
(1) legal professional privilege;
(2) that production is contrary to public policy;
(3) that the documents in question may tend to criminate the party or his or her spouse;
(4) that the production is contrary to some statutory provision which imposes secrecy;
(5) that production is contrary to some express or implied agreement between the parties; and
(6) that production would, in the circumstances of the particular case, be oppressive.

Concluding Remarks
It is evident from the facts and circumstances stated above that the concept of privileged documents is very vital for the effective disposal of the dispute. A lawyer is under a moral obligation to respect the confidence reposed in him and not to disclose communications which have been made to him in professional confidence i.e. in the course and for the purpose of his employment, by or on behalf of his client, or to State the contents or conditions of documents with which he has become acquainted in the course of his professional employment, without consent of his client.

If such communications were not protected, no man would dare to consult a professional adviser, with a view to his defence, or to the enforcement of his rights, and no man could safely come into a Court, either to obtain redress, or to defend himself.

The rigid enforcement of this rule occasionally operates to the exclusion of truth; but if any law reformer feels inclined to condemn the rule on this ground, he will do well to reflect on the eloquent language of the late Knight Bruce, LJ, who observed[8]:
"Truth, like all other good things, may be loved unwisely, - may be pursued too keenly, - may cost too much. And surely the meanness and the mischief of prying into the man’s confidential consultation with his legal advisers, the general evil of infusing reverse and dissimulation, uneasiness, suspicion and fear, into those communication which must take place, and which, unless in the condition of perfect security, must take place uselessly or worse, are too great a price to pay for the truth itself."


Bibliography
Books
# Justice Takwani, C. K., "Civil Procedure with Limitation Act, 1963", 8th Edn.(2017), Eastern Book Company.
# Jain, M. P., "The Code of Civil Procedure ", 3rd Edn.(2011), Lexis Nexis Butterworths Wadhwa Publications.
# Ray, Sukumar., "The textbook on The Code of Civil Procedure ", 3rd Edn.(2015), Universal Law Publications.
# Dr. Myneni, S. R., "Code of Civil Procedure and Limitation Act", 3rd Edn.(2016), Asia Law House Publications.
# Sir Dinshaw Fardunji Mulla, "The Code of Civil Procedure", 19th Edn(2017), Lexis Nexis Publications.
# C.L. Anand, "General Principles of Legal Ethics", (1965), pg. 39.

Articles
# John Antell, "Disclosure : What are Privileged documents", (2015), available at http://www.johnantell.co.uk/what-are-privileged-documents
# Gauri Kulkarni, "Priviliged legal communications",(2016), available at http://www.legalserviceindia.com/articles/pc.htm
# Paul R. Richet, "ATTORNEY-CLIENT PRIVILEGE: THE ERODING CONCEPT OF CONFIDENTIALITY SHOULD BE ABOLISHED", Vol.47, No. 5(1998), Duke Law Journal.

Acts
Civil Procedure Code, 1908

Table of Cases
# Calcraft v. Guest (1898)1 QB 759
# D. Veeraseharan v. State of Tamil Nadu 1992 Cr. L.J. 2168 (Mad)
# Ganga Ram v. Habib Ullah (1935)58 All 364
# Gurunanak Provisions Stores v. Dalhonumal Savanmal AIR 1994 Guj 31
# Jones v. Great Central Railway 1910 AC 4
# Kalikumar Pal v. Rajkumar Pal (1931)58 Cal 1379
# Munchershav Bezanji v. The new Dhurumsey S. & W. Company (188004 Bom 576
# O’Rourke v. Darbishire (1920) AC 581
# Pearse v. Pearse 1846, 16 LJCh 153
# Rajesh Bhatia And Ors. vs G. Parimala And Anr 2006 (3) ALD 415
# Smith v. Duniell 44LJCh 189
# Wallace v. Jefferson 2B 452

[1] *Author is the student of BA.LLB.(Hons.) of 6th semester, Alliance School of Law.
[2] C.L. Anand, General Principles of Legal Ethics, pg. 39
[3] Ganga Ram v. Habib Ullah (1935)58 All 364
[4] Kalikumar Pal v. Rajkumar Pal (1931)58 Cal 1379
[5] Wallace v. Jefferson 2B 452
[6] Smith v. Duniell 44LJCh 189
[7] O’Rourke v. Darbishire (1920) AC 581
[8] Pearse v. Pearse 1846, 16 LJCh 153