Section 126 of the Bharatiya Sakshya Adhiniyam, (BSA), 2023
Section 126 – Professional Communications (Advocate–Client Privilege)
Plain-Language Explanation
Section 126 BSA, 2023 provides that:
An advocate (barrister, pleader or vakil) cannot disclose any communication made to him by his client during the course of his employment.
He also cannot disclose any advice he gives to his client.
Nor can he disclose any document he obtained due to his professional capacity.
This applies:
During the employment AND
Even after termination of the advocate–client relationship.
Exceptions (When Disclosure Is Allowed):
Disclosure is NOT protected if:
Communication was made in furtherance of an illegal purpose.
The lawyer learned of a crime or fraud that the client has committed since the start of the lawyer’s employment.
Who else is protected?
Interpreters, clerks, and other persons assisting the advocate are equally bound by this confidentiality rule.
Purpose of Section 126
Ensure free and honest communication between client and lawyer.
Protect the integrity of the justice system.
Encourage clients to give complete information without fear of disclosure.
Detailed Breakdown
1. “Communication made during the course of employment”
Includes:
Oral statements
Written instructions
Email/SMS/letters
Any meeting discussions
Protected only if the lawyer is acting as a lawyer and the client seeks legal advice.
2. Documents communicated due to professional relation
Protected documents include:
Case papers, drafts, statements
Evidence given by client
Information learned due to representation
But documents not produced by the client (e.g., public records) are not protected.
3. Continuation of privilege even after employment ends
Even after the case ends or the lawyer–client relationship stops, the lawyer cannot reveal past communications.
4. Illegal Purpose Exception
Privilege does not apply when:
Client seeks advice on how to commit a crime
Client tells lawyer to help him conceal evidence
Communication is part of a fraudulent plan
This does not include past wrongdoing—only ongoing or future illegal acts.
Illustrative Examples
✔ Protected
A client tells his lawyer:
“I did not commit theft; I have an alibi.”
“Here are my financial documents.”
These cannot be disclosed.
❌ Not Protected (Exception)
A client tells his lawyer:
“Help me draft a false affidavit.”
“Tell me how to hide the stolen goods so the police won't find them.”
These can be disclosed because they are in furtherance of illegality.
Case Law (Applicable Through Interpretation of Section 126 BSA)
1. Queen v. Murtaza (1869)
Held that communications between an accused and his advocate are privileged and cannot be disclosed except for illegal purposes.
2. Greenough v. Gaskell (1833) (English case applied in India)
Laid foundation for legal professional privilege:
Purpose is to ensure full disclosure by client.
Not for benefit of lawyer, but for administration of justice.
3. Balkrishan v. State (AIR 1954 All 289)
Statements made to a lawyer in confidence cannot be used as evidence at trial.
4. Amit Kumar v. State of Jharkhand (2017 SC)
Reaffirmed that legal privilege is essential for fair trial and promotes trust in the legal system.
5. R v. Cox and Railton (1884)
Applied in India to discuss the fraud/illegal purpose exception:
Communications in furtherance of a crime are not privileged.
6. Satish Kumar Sharma v. Bar Council of Himachal Pradesh (2001 SC)
Emphasized that confidentiality between advocate and client is a core ethical duty under Indian law.
Comparative Note: BSA 2023 vs Indian Evidence Act 1872
Section 126 is substantially identical to the old Section 126.
The purpose remains unchanged:
Protection of confidential lawyer–client communications
Conclusion
Section 126 BSA, 2023:
Creates a strong shield of confidentiality over advocate–client communications.
Contains well-defined exceptions where confidentiality becomes secondary to preventing crime or fraud.
Reinforced by long-standing case law from the Indian Evidence Act era, which remains authoritative because of identical statutory language.
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