Section 129 of the Bharatiya Sakshya Adhiniyam, (BSA), 2023

11 Jun 2025 --
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✅ Section 129 — Confidential Communications with Legal Advisers (BSA, 2023)

Corresponding Provision: Section 129 of the Indian Evidence Act, 1872

🔵 Text of Section 129 (Paraphrased for Clarity)

Section 129 states in essence that:

A person cannot be compelled to disclose confidential communications made between him and his legal professional adviser.

Exception: If the person offers himself as a witness, he may be compelled to disclose such communications only if the court considers them necessary to explain any evidence that he has already given.

🔍 Detailed Explanation

1. Purpose of Section 129

The section aims to protect the freedom of consultation between a client and their legal adviser.
A client must be able to discuss their case freely, honestly, and without fear that these communications might later be exposed in court.

This protection promotes:

Fair trial

Proper legal representation

Trust within the attorney–client relationship

2. What Is "Legal Professional Adviser"?

Under the law, this refers to:

Advocates

Legal practitioners

Attorneys engaged for legal advice

The privilege applies:

Whether or not the adviser is actually appearing in court

Even to advice sought outside formal legal proceedings

3. What Communications Are Protected?

✔ Protected:

Oral or written communications made in confidence

Professional advice obtained from the advocate

Information shared for the purpose of receiving legal guidance

❌ Not protected:

Communications made in furtherance of an illegal purpose

Facts an advocate becomes aware of by himself, not through the client

Non-confidential exchanges

Observations like a lawyer seeing wounds, physical condition, etc.

4. Who Holds the Privilege?

The client, not the lawyer, holds the privilege.
Therefore:

Only the client can waive it.

A lawyer cannot disclose communications unless the client permits.

5. Exception — When the Client Becomes a Witness

If the client:

voluntarily steps into the witness box, and

gives evidence that cannot be understood without revealing confidential communications,

the court may compel disclosure only to the extent necessary to clarify the testimony.

This is a narrow exception meant to prevent misuse of privilege.

⚖️ Key Case Law (Indian Courts)

1. R. v. Cox & Railton (1884)

Though an English case, frequently cited in India.
Principle: Communications made to an advocate in furtherance of a crime or fraud are not protected.
Relevance: Indian courts apply this to deny privilege when advice is sought for illegal purposes.

2. Muller v. Linsley (1858)

Also cited in Indian jurisprudence.
Principle: The protection applies even after the case concludes or the relationship ends.
Relevance: Client privilege under Section 129 survives indefinitely.

3. Bharat Singh v. Bhagirathi (1966 SC)

Although primarily on admissibility of evidence, the Supreme Court emphasized the importance of statutory privileges and the need for strict interpretation.
Relevance: Supports the view that Section 129 must be applied strictly and not diluted.

4. M. Yovon v. S. Siva (Madras HC, 2014)

Held:

A litigant cannot force an advocate to disclose confidential communication with the opposite party.

Privilege belongs to the client; the advocate cannot waive it.
Relevance: Reinforces Section 129’s framework.

5. Satish Kumar Sharma v. Bar Council of Himachal Pradesh (2001 SC)

Held that:

Advocates are bound by professional secrecy.

Disclosure can result in professional misconduct.
Relevance: Ties Section 129 privilege to ethical duties under the Advocates Act.

6. R.M. Malkani v. State of Maharashtra (1973 SC)

Held:

Illegally obtained evidence is not automatically excluded unless it violates constitutional rights.
Relevance: If privileged communication is illegally intercepted, the court will carefully examine admissibility because it violates the statutory privilege under Section 129.