Privileged Communication: Section 126 IEA & 132 BSA Explained

The Central Framework: Section 126 IEA / Section 132 BSA

Before proceeding to each problem, a brief recall of the governing provision is essential. Section 126 of the IEA, now re-enacted as Section 132 of the BSA, provides that no advocate shall at any time be permitted, unless with the client's express consent, to disclose any communication made to them in the course and for the purpose of their professional service by or on behalf of the client, or to state the contents of any document acquired during professional service, or to disclose any advice given to the client.

The Explanation to the section makes clear that this obligation continues even after professional service has ceased — the protection is permanent, rooted in the principle that unless a client can speak to their lawyer with complete candour, the very institution of legal representation is undermined.

However, two provisos carve out exceptions:

First, any communication made in furtherance of an illegal purpose is not protected from disclosure.

Second, any fact observed by the advocate in the course of service showing that a crime or fraud has been committed since the commencement of service is not protected from disclosure.

The section then provides three illustrations — which happen to correspond precisely to the three problems in the question. They must be examined with care.

Problem One: The Forged Deed

When A, a client, says to B, an attorney — "I wish to obtain possession of property by the use of a forged deed on which I request you to sue" — the law's answer is clear. This communication is not protected from disclosure.

This is precisely Illustration (b) to Section 126 of the IEA and Section 132 of the BSA. The communication is made in furtherance of a criminal purpose — the client wishes to use a forged document as the basis of a suit, which is not merely unlawful but criminal. The privilege of professional communication was never designed to be a shield for fraud and crime. The principle was expressed with enduring force by Wood, V.C., in Gartside v Outram (1856, 26 LJ Ch. 113), where His Lordship said: "You cannot make me the confidante of a crime or a fraud, or be entitled to close my lips upon any secret which you have the audacity to disclose to me relating to any fraudulent intention on your part — such a confidence cannot exist."

The critical word in the proviso is "furtherance." The communication here is not a disclosure of a past act — it is an instruction to the lawyer to actively use fraud as a weapon. The client is recruiting the advocate as an instrument of criminality. No privilege can stand in such a situation. The Gujarat High Court in Gurunanak Provisions Stores v Dulhonumal Savanmal (AIR 1994 Guj 31) allowed disclosure where a client desired to obtain a decree on the basis of forged promissory notes — the rationale being identical.

It is notable that there is a distinction between Indian and English law on this point. Under English law, the purpose for invoking the exception must be criminal, and not merely illegal. Under the Indian Evidence Act and the BSA, the proviso uses the broader phrase "illegal purpose" — meaning that any unlawful objective, whether or not it is a criminal offence, strips the communication of its protection. The forged deed situation clearly falls within this wider net, since attempting to use a forged deed in a suit is unambiguously both illegal and criminal.

The conclusion therefore is definitive: B can disclose this communication, and if called as a witness, B may be permitted to depose about what A told him. A cannot invoke the privilege as a cloak to conceal his fraudulent design.

Problem Two: The Admission of Forgery and Request for Defence

When A, a client, says to B, an advocate — "I have committed forgery and I wish you to defend me" — the legal position is the precise opposite of Problem One. This communication is fully protected from disclosure.

This is Illustration (a) to Section 126 of the IEA and Section 132 of the BSA. The words of the illustration are emphatic: "As the defence of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure."

Here, the student of law must pause and appreciate one of the most profound principles in criminal jurisprudence. A is confessing to a past act of forgery and seeking legal representation in defence. He is not asking his advocate to commit any fresh crime. He is not inviting the advocate to perpetuate fraud. He is exercising the most fundamental right known to law — the right to a fair trial and the right to be defended. The advocate's function is not to judge the client; it is to ensure that the state proves its case according to law.

As Bar Council of India Rule 15 expressly provides, an advocate shall defend a person accused of a crime regardless of personal opinion as to the guilt of the accused, bearing in mind that loyalty is to the law which requires that no man be convicted without adequate evidence. The Supreme Court of India underscored this in AS Mohammed Rafi v State of Tamil Nadu (AIR 2011 SC 308), where it condemned any Bar Association resolution refusing to defend a particular accused and declared all such resolutions null and void.

The privilege in this case is absolute. A told B about a past act — not a future criminal plan. A seeks to engage B for defence, not for facilitation of further crime. The purpose is entirely lawful. Lord Denning MR captured the essence of the lawyer's role when he said in Rondel v Worsley (1967 1 QB 443) that a barrister owes allegiance to a higher cause — the cause of truth and justice — and he is not the tool of his client to do whatever the client wishes, but equally he is not his client's judge.

The conclusion is clear: B cannot disclose this communication, whether compelled as a witness or otherwise. The protection of Section 126 of the IEA and Section 132 of the BSA is absolute in this situation, unless A himself expressly consents to disclosure, which he would be unlikely to do.

Problem Three: The Lawyer Who Refuses and Threatens to Depose

The third problem is the most complex and legally significant of the three, raising a question that sits at the intersection of privilege, ethics, and the prerequisites for the lawyer-client relationship itself.

A went to lawyer B and stated that he had committed the murder of C and wanted to engage B as his defence lawyer. B replied that he did not defend actual murderers and would instead give evidence against A.

The legal question is: Can B be permitted to depose against A?

The answer demands careful unpacking, but the conclusion is — No, B cannot be permitted to depose against A on the basis of this communication.

The Moment the Relationship Begins

The privilege under Section 126 of the IEA and Section 132 of the BSA is triggered from the moment a person approaches an advocate with a view to obtaining professional service. The relationship of advocate and client need not be formally constituted by a fee payment or a retainer. The moment A approached B, disclosed the facts, and sought to engage B as his defence advocate, a professional relationship had begun — or at least, A had approached B in the course and for the purpose of obtaining professional service. The communication was made precisely in that context.

The section requires that the communication be made "in the course and for the purpose of" professional service. When a person walks into a lawyer's office, narrates their case, and seeks engagement, the communication is being made for the purpose of obtaining professional assistance. It does not matter that B subsequently refused to accept the brief. The protection is not contingent on the advocate actually taking up the case. What matters is the purpose for which A made the communication — which was undeniably to obtain a lawyer's professional assistance.

B's Refusal Does Not Destroy the Privilege

The privilege is not the advocate's own right to assert or waive. As Section 126 itself makes plain, no advocate shall be permitted to disclose — the prohibition runs against the advocate, not as a personal right of the advocate, but as a protection for the client. The client A is the holder of the privilege. B's refusal to take the case and his unilateral declaration that he would instead testify against A is not legally effective to strip the communication of its privileged character. B cannot unilaterally extinguish a protection that belongs to A.

The explanation to Section 126 reinforces this further — the obligation continues after the professional service has ceased. If the privilege survives even after the professional relationship formally ends, it would be manifestly unjust to deny it protection merely because the relationship never formally commenced due to the advocate's own refusal.

Does the "Illegal Purpose" Exception Apply?

One might argue that A's disclosure of a murder could be treated differently — that it is a communication about a criminal act. But here the analysis must be sharp. A was disclosing a past act. He was not requesting B to commit any crime or fraud in the future. He was not asking B to help him commit a murder, or to conceal evidence of a murder in a manner constituting a fresh offence. A's request was for a lawful object — representation in his defence. A disclosed a past crime to a lawyer in order to get legal assistance. This is precisely what Illustration (a) to Section 126 of the IEA covers — the disclosure of a past criminal act for the purpose of seeking defence. The fact that the crime disclosed was murder rather than forgery does not alter the legal analysis.

Disclosure is not the same as furtherance. A murder already committed cannot be "furthered" by legal representation — defending a murderer in a court of law is not, in any imaginable sense, an "illegal purpose."

The Second Exception: Observed Facts

The second proviso is also inapplicable here. That proviso covers facts observed by the advocate in the course of service — such as the situation in Illustration (c) to Section 126, where B, while defending an accused for embezzlement, notices that a fresh entry has been tampered with in the account book after the commencement of service. That is direct observation of a fresh crime committed after engagement. In Problem Three, B has heard a confession of a past act from A — there is no observation of any fresh crime during the service. The proviso simply does not apply.

A Note on Ethics and the Law

B's conduct in this case raises serious professional ethics concerns quite apart from the privilege issue. An advocate's personal distaste for a client — even one who confesses to murder — cannot justify refusing to maintain the confidentiality of what that person disclosed while seeking professional help. As the Bar Council of India rules emphasise, the decision not to take up a case is a matter of professional discretion; but having received the communication, the advocate becomes bound by the obligation of professional secrecy. B cannot weaponise A's candour against him. To permit B to testify against A on the basis of a communication made by A in the course of seeking legal assistance would be to strike at the root of the entire institution of the lawyer-client relationship. No citizen would dare speak frankly to a lawyer if they knew that the lawyer's personal moral judgment could result in their words being handed over to the prosecution.

The conclusion is therefore that B cannot be allowed to depose against A. The court should refuse to permit B to testify about what A told him when he came seeking professional assistance. The privilege, though the relationship was never formally constituted by an accepted retainer, protects A from disclosure of communications made in the context of seeking legal service.

The Underlying Principle

What emerges from these three problems, read together, is a picture of the law in its most nuanced form. The privilege protects the innocent and the guilty alike in seeking legal assistance for their defence of past acts. It does not protect those who seek to use a lawyer as a co-conspirator in a future crime. And the moment the seeker of legal advice communicates to an advocate for professional help, the seal of secrecy descends — the advocate's personal judgment as to the client's guilt or the nature of the crime committed does not lift it. The law, in this domain, is wiser than any individual conscience. It knows that justice requires representation, that representation requires candour, and that candour requires absolute protection.