The Code of Civil Procedure 1908 stipulates that the court may, either of its own motion or on the application of any party, order the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence. Further, a party to a suit may serve a notice on the other party to produce documents referenced in the other party’s pleadings or affidavits for inspection. Where such an order for inspection is made, and privilege is claimed in respect of the documents sought, the court will be entitled to inspect the documents to decide the validity of the claim of privilege.

Similarly, the Code of Criminal Procedure 1973 empowers the court or an officer in charge of a police station to issue a summons for the production of documents or any other thing in the power or possession of the person to whom the summons is issued. Privileged communications are not expressly exempted from the scope of this provision, and the dominant view is that privilege is a rule of evidence and becomes relevant only at trial. At trial, the court may be petitioned to exclude it from evidence.

The definition of “court” under the Indian Evidence Act 1872 includes all judges and magistrates, and all persons, except arbitrators, legally authorized to take evidence. As a result, in addition to the regular civil and criminal courts in India, certain tribunals and adjudicating bodies established under statute, such as the National Company Law Tribunal, the Debt Recovery Tribunal, the various fora established under the Consumer Protection Act 2019, etc., have the same power as civil courts under the Code of Civil Procedure 1908 to call for disclosure and discovery of documents or other material that may be produced as evidence.

Yes, India recognizes the concept of attorney-client privilege, which protects professional communications as well as work product created in anticipation of litigation. Professional communications between a client and their advocate are protected under the Indian Evidence Act 1872, the Advocates Act 1961 and the Bar Council of India Rules. The Indian Evidence Act 1872 provides that an obligation of confidentiality rests upon certain categories of legal practitioners, i.e., barristers, attorneys, pleaders or vakils. Vakil is an Urdu word for an advocate, pleader, counsel or attorney. At the time of British rule in India, the term was used to describe a pleader of Indian origin. Subsequent to the enactment of the Advocates Act 1961, a single category of legal practitioners was created, i.e., advocates, and the use of the term vakil was done away with. However, the term still appears in earlier legislation.

Legal practitioners that are subject to an obligation of confidentiality are not permitted to:

• Disclose any communication made to them in the course of and for the purpose of their employment, by or on behalf of the client
• State the contents or condition of any document with which they have become acquainted in the course and for the purpose of their professional employment
• Disclose any advice given by them to their client in the course and for the purpose of such employment

However, privilege does not extend to circumstances where:

• The client has expressly consented to disclosure of the privileged information
• The communication has been made in furtherance of any illegal purpose
• The barrister, pleader, attorney or vakil, in the course of their employment, observes that any crime or fraud has been committed since the commencement of their employment

Under the Indian Evidence Act 1872, a person cannot be compelled to disclose any confidential communication between themselves and their legal professional adviser. The only exception is where a person offers themselves as a witness, and the court compels them to disclose communications necessary to explain the evidence they have given.

The protection of privilege extends to all the work products and communication exchanged between a client and attorney in anticipation of litigation. This includes communication to:

• Obtain advice for the litigation
• Obtain or collect evidence to be used in the litigation
• Obtain information that will lead to such evidence, drafts of notices, pleadings and so forth exchanged between the attorney and the client

Indian law follows the English position concerning work product. The work product must be prepared by counsel or the request of counsel in anticipation of litigation to confer protection.

The privilege accorded under sections 126 to 129 of the Indian Evidence Act 1872 can only be waived by the client. Under section 126, a client is required to expressly consent to the waiver of privilege. This need not be in writing necessarily and could be inferred from the facts and circumstances of the case. Further, under section 128, if a client calls their attorney as a witness and, in the course of an examination, asks questions that specifically require disclosure of attorney-client privileged information, then such client is understood to have waived privilege.

Sections 126 to 129 do not contemplate limited waiver or sharing of attorney-client communications or work product among persons with a common interest without waiving protections. As per the language of section 126, a client may waive privilege entirely or not at all. However, where the disclosure is forced by a government authority (e.g., as a part of documents seized), such disclosure may be attempted to be made without waiving protections.

If a document has not passed directly between the legal adviser and the client, but is of such a nature as to make it quite clear that it was obtained confidentially for the purpose of being used in litigation and with a view to being submitted to legal advisers, then the court may not compel the production of such document (Vishnu Yeshawant Wagh v. New York Life Insurance Co.).

However, courts have held that for privilege to be claimed, the document or information should be confidential. Therefore, once a document has been obtained, it is imperative that it is kept confidential and not disclosed for any purposes except in the course of litigation or preparation for litigation. In Diljeet Titus and Ors. v. Alfred A Adebare and Ors., the court held that if an associate or advocate works for another advocate and their clients, they owe an obligation not only to maintain the confidentiality between the client and their advocate, but also not to surreptitiously take away what is the final product of the effort put in, to which they may also be a party.

Yes, government regulators may require a privileged document to be provided to them. The term “government regulator” has a very broad definition and includes within its ambit courts, tribunals and other adjudicating bodies established under statute, which usually are accorded powers identical to a civil court regarding discovery and disclosure as provided under the Code of Civil Procedure 1908 and the Indian Evidence Act 1872. In Re: Matter of Great Public Importance Touching Upon The Independence of Judiciary, the Supreme Court reaffirmed that without production of the information, the court cannot be prevented from inspecting a document even though such document is claimed to be privileged.

The Right to Information Act 2005 (“RTI Act“) was enacted to secure access to information in the possession of public authorities. Under the RTI Act, citizens may require certain information in the possession of public authorities to be furnished to them. However, the RTI Act sets out certain exceptional circumstances wherein such information need not be disclosed. One such exception is where information is held by a public authority by virtue of a fiduciary relationship between the authority and the person providing the information, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information.

In The Superintendent, High Court v. The Registrar, Tamil Nadu Information Commission and M. Sivaraj, the issuance of a summons by the Tamil Nadu Information Commission to the Public Prosecutor’s office to disclose certain records under the RTI Act was challenged. It was contended on behalf of the Tamil Nadu Information Commission that a public authority may be required to disclose documents in its possession, even where such documents were exempted from disclosure under the RTI Act, where the public interest in disclosure outweighed the harm to the protected interests. However, the court ruled that the documents sought to be disclosed were protected under the provisions of the Indian Evidence Act 1872, and thus disclosure was not required, especially since it was prohibited under statute and disclosure would have resulted in consequences for counsel.

Further, in Mukesh Agrawal v. Public Information Officer, RBI, the public information officer of the Reserve Bank of India contended that advice provided by a lawyer is held by the client in a fiduciary relationship and hence is exempt under Section 8(1)(e) of the RTI Act. The Central Information Commission, while rejecting this contention, held that although communications of a client with a lawyer are held in a fiduciary capacity by the lawyer, a client does not hold communications from a lawyer in a fiduciary capacity.

In Alok Srivastava v. CPIO, English and Foreign Language University, the Central Information Commission evaluated the issue of whether the advice given by standing counsel to the client university would be considered to be given in a fiduciary relationship. It concluded that in the circumstances of that case, public interest outweighed the protected interest, and ordered disclosure of the legal opinion.