Privileged Communications under the Bharatiya Sakshya Adhiniyam, 2023: Sections 127 to 137

A privilege is a rule that keeps relevant evidence out of court. It is therefore an exception to the whole purpose of the law of evidence, and each privilege has to be justified by something the law values more than the information — the independence of the judiciary, the candour of the client with his lawyer, the security of the State, the safety of the informer, the confidence of the marriage. Eleven sections create these exceptions, and the list is shorter than most people expect.

1. The Idea of Privilege

Privilege must be distinguished from two neighbouring ideas with which it is regularly confused.

	Irrelevance	Incompetency	Privilege
The evidence is	Not connected with any fact in issue	Offered by a person who cannot understand or answer	Relevant, and offered by a competent witness
Why it is excluded	It proves nothing	The source is unreliable in a fundamental sense	Some other interest outweighs the value of the information
Who may complain	Any party	Any party	Ordinarily only the holder of the privilege
May it be given up?	Not applicable	Not applicable	Yes, by the holder, in most cases

Two consequences follow from the third and fourth rows. A privilege ordinarily belongs to somebody, and that person may give it up. And a party who is not the holder cannot insist on it — an opponent cannot object that a communication is privileged where the holder is content to disclose it.

The exceptions to this are the privileges held in the public interest rather than by an individual — Sections 127, 129, 130 and 131 — where there is no private holder and the protection is not at anybody's disposal.

2. Section 127 — Judges and Magistrates

Section 127, BSA — Judges and Magistrates

No Judge or Magistrate shall, except upon the special order of some Court to which he is subordinate, be compelled to answer any questions as to his own conduct in Court as such Judge or Magistrate, or as to anything which came to his knowledge in Court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting.

The privilege protects the office rather than the person, and its purpose is the independence of the judicial function. A judge who could be called to explain why he decided as he did, or what he understood a witness to mean, would be exposed to a form of collateral review the appellate process is designed to provide.

Three features define its scope.

It covers his own conduct as a Judge or Magistrate, and anything that came to his knowledge in court as such.
It does not cover other matters occurring in his presence. A judge who witnessed an assault in the courtroom may be examined about it, because he perceived it as a person present and not as an adjudicator.
It yields to the special order of a superior court, which is what permits enquiry where it is genuinely required.

3. Section 128 — Communications During Marriage

Section 128, BSA — Communications during marriage

No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.

This is the most tightly drawn privilege in the chapter and its features repay attention.

3.1 It is both a protection and a prohibition

The spouse is not compellable to disclose, and is not permitted to disclose. The second limb is unusual: most privileges may be given up by the person protected, but here the witness spouse cannot waive it. The privilege belongs to the spouse who made the communication, and only his or her consent unlocks it.

3.2 It survives the marriage

The words are 'is or has been married'. Divorce, annulment or the death of the other spouse does not release the communication. What is protected is the confidence of the marriage as it existed when the communication was made.

3.3 It covers communications, not facts

The section protects what one spouse said to the other. It does not protect what the witness spouse saw, did or knew independently.

⚠ Communication, not observation

This is the distinction that decides most cases under the section. A wife may not disclose that her husband told her he had killed a man. She may perfectly well depose that she saw him return with blood on his clothes, that he burned something in the yard, or that he left the house at a particular hour. Acts and conduct are not communications, and the privilege does not extend to them. Examination-in-chief should be framed to elicit what was perceived rather than what was said.

3.4 Two exceptions

The privilege does not apply in suits between the married persons themselves, nor in proceedings in which one is prosecuted for a crime committed against the other. In both, the relationship is already the subject of the litigation, and a privilege founded on preserving its confidence would defeat the proceeding.

4. Sections 129 to 131 — The Public Interest Privileges

4.1 Section 129 — Affairs of State

Section 129, BSA — Evidence as to affairs of State

No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.

On its face the section leaves the matter to the head of the department. The Supreme Court has held that the last word rests with the court, and this is the most important gloss on any provision in the chapter.

📖 State of Uttar Pradesh v. Raj Narain, (1975) 4 SCC 428

Held: The foundation of the law behind the provision corresponding to Section 129 is injury to public interest, and that alone. The court is not bound by the statement of the head of the department, and the question whether the disclosure would cause injury to the public interest is for the court to decide.

In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. The responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.

Ratio: The claim is for the department to make but for the court to decide, and the test is injury to the public interest — not the convenience or embarrassment of the executive.

The approach was developed further in S.P. Gupta v. Union of India, 1981 Supp SCC 87, where the Court held that a claim of privilege must be weighed against the public interest in the administration of justice, that the court may inspect the document to decide, and that the class of documents genuinely protected is narrow.

The working position that emerges has four elements.

The claim must be made by the head of the department, ordinarily by affidavit stating the grounds.
The ground must be injury to the public interest, not embarrassment, inconvenience or the fact that the document is confidential.
The court decides, and is not bound by the claim.
The court may inspect the document in order to decide, without disclosing it to the parties.

4.2 Section 130 — Official communications

Section 130, BSA — Official communications

No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.

The section is narrower than Section 129 in its subject and wider in its holder. It covers communications made to a public officer in official confidence, rather than unpublished official records, and the protection is claimed by the officer himself.

Two conditions must both be satisfied: the communication must have been made in official confidence, and the officer must consider that the public interests would suffer by disclosure. As with Section 129, the assertion is examinable, and a bare claim without material to support it is not conclusive.

4.3 Section 131 — Information as to commission of offences

Section 131, BSA — Information as to commission of offences

No Magistrate or police officer shall be compelled to say whence he got any information as to the commission of any offence, and no revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.

Explanation. — 'Revenue officer' means any officer employed in or about the business of any branch of the public revenue.

This is the informer privilege, and its purpose is practical: information about crime would dry up if those who gave it could be identified in the witness box. The protection is for the informer, though it is exercised through the officer.

Two limits define its scope. It protects the source of the information — whence the officer got it — and not the information itself, which the officer may be required to state. And it is confined to information as to the commission of an offence, and for revenue officers to offences against the public revenue.

⚠ The privilege protects the identity, not the facts

An officer may be asked what information he received and what he did about it; he may not be compelled to say from whom it came. Where the defence case requires the informer's identity — because the informer is alleged to be the real culprit, or the information is said to be fabricated — the court retains a discretion to require disclosure in the interests of justice, and the privilege is not absolute in a case where an innocent person's liberty turns on it.

5. Sections 132 to 134 — Legal Professional Privilege

The most extensive privilege in the chapter and the one with the most developed structure. Three sections deal with it from different directions: Section 132 binds the advocate, Section 134 protects the client, and Section 133 governs waiver.

5.1 Section 132 — The advocate's obligation

Section 132, BSA — Professional communications

No advocate shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment.

Provided that nothing shall protect from disclosure — (a) any such communication made in furtherance of any illegal purpose; (b) any fact observed by any advocate in the course of his employment showing that any crime or fraud has been committed since the commencement of his employment.

It is immaterial whether the attention of such advocate was or was not directed to such fact by or on behalf of his client.

The obligation stated in this section continues after the employment has ceased, and applies also to interpreters, and the clerks or servants of advocates.

The closing sub-section carries what was Section 127 of the Indian Evidence Act, which has been folded into this section — one of the two renumbering changes in the chapter.

Four features define the privilege.

It belongs to the client. The advocate is not permitted to disclose except with the client's express consent. He cannot waive it, and he cannot be compelled.
It covers three things — communications made to him, the contents or condition of documents he became acquainted with, and the advice he gave.
It requires the communication to be in the course and for the purpose of the employment. A conversation with an advocate socially, or on a matter unconnected with the retainer, is outside it.
It continues after the employment ceases, and extends to interpreters, clerks and servants.

5.2 The two exceptions

Communications in furtherance of an illegal purpose are not protected. The privilege exists so that a client may obtain advice about his position, not so that he may enlist his advocate in the commission of an offence. The test is the purpose of the communication, and it is not necessary that the advocate knew of it.

Facts observed showing a crime or fraud committed since the commencement of the employment are not protected. This is narrower than it looks and the words matter: the fact must have been observed, and the crime or fraud must have been committed since the employment began. Advice about a crime already committed before the retainer is squarely within the privilege.

The sentence that follows the provisos is important and is often overlooked: it is immaterial whether the advocate's attention was directed to the fact by the client. The exception operates on what he observed, however he came to observe it.

📖 In Re: Summoning Advocates who give legal opinion or represent parties during investigation of cases and related issues (Supreme Court of India, decided 31 October 2025)

Held: An investigating agency, prosecuting authority or police officer cannot directly summon an advocate merely because he has advised or represented a client in his professional capacity. An advocate may be summoned only where one of the statutory exceptions in Section 132 is clearly established.

The privilege is not merely statutory but constitutional in character, flowing from Articles 19(1)(g), 21 and 22(1), and reflecting the client's right to effective legal representation and his right against self-incrimination under Article 20(3).

An advocate may be summoned in a different capacity — as a suspect, or as a witness to facts unconnected with his professional duties. In-house counsel do not enjoy the full privilege, not being advocates within the Advocates Act, 1961; but communications between an in-house counsel, as agent of the company, and the company's external advocate remain privileged.

Ratio: The privilege operates at the investigation stage and not only at trial, and the capacity in which an advocate is summoned is the controlling question.

5.3 Section 133 — Waiver

Section 133, BSA — Privilege not waived by volunteering evidence

If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in Section 132; and if any party to a suit or proceeding calls any such advocate as a witness, he shall be deemed to have consented to such disclosure only if he questions such advocate on matters which, but for such question, he would not be at liberty to disclose.

The section protects the client against an inadvertent waiver. Two propositions.

Giving evidence is not consent. A party who enters the witness box does not thereby open up his communications with his advocate.

Calling the advocate is not consent either — unless the party actually questions him on the protected matters. Waiver occurs at the point of the question, not at the point of the calling.

5.4 Section 134 — The client's side

Section 134, BSA — Confidential communication with legal advisers

No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal adviser, unless he offers himself as a witness, in which case he may be compelled to disclose any such communications as may appear to the Court necessary to be known in order to explain any evidence which he has given, but no others.

Section 132 binds the advocate; Section 134 protects the client from being compelled himself. The two are the mirror of each other, and together they close the circle.

The exception in Section 134 is narrow and should be read against Section 133. A party who offers himself as a witness may be compelled to disclose communications necessary to explain the evidence he has given — and no others. This is not a general waiver; it is a limited power to prevent a party using the privilege to present a misleading account.

6. Sections 135 and 136 — Documents

Sections 135 and 136, BSA

Section 135. No witness who is not a party to a suit shall be compelled to produce his title-deeds to any property, or any document in virtue of which he holds any property as pledgee or mortgagee, or any document the production of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking the production of such deeds or some person through whom he claims.

Section 136. No one shall be compelled to produce documents or electronic records in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession or control, unless such last mentioned person consents to their production.

Section 135 protects a stranger to the litigation. A person who is not a party is not to have his title investigated because somebody else is in dispute, and the section covers his title-deeds, documents of pledge or mortgage, and documents tending to criminate him.

Section 136 is a rule against circumvention. A privilege attaching to a document in the hands of its owner would be worthless if the document could be obtained from whoever happens to be holding it. The section therefore transfers the owner's entitlement to refuse to the person in possession, and only the owner's consent releases it.

The addition of electronic records to Section 136 is new and is one of the two changes in this chapter. It matters a great deal in practice: a privileged communication held on a server, in a cloud account, or on a device in somebody else's custody is within the section, and the custodian may not be compelled to produce what the owner could refuse.

7. Section 137 — Self-Incrimination

Section 137, BSA — Witness not excused from answering on ground that answer will criminate

A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind.

Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.

The section belongs in this chapter but is not a privilege. It removes the privilege a witness might otherwise claim and substitutes a use immunity.

The exchange is deliberate. The court gets the evidence it needs; the witness is protected against the consequences of having been compelled to give it. The immunity is wide — no arrest, no prosecution, and no use of the answer in any criminal proceeding — and narrow in one respect only: it does not protect him from a prosecution for giving false evidence by that very answer.

Article 20(3) is not engaged, for the reason that a witness in another's proceeding is not a person accused of an offence. An accused person is a different matter: he is not a compellable witness at all, and Section 137 does not make him one.

8. What Is Not Privileged

The list of privileges is closed, and a great deal that is confidential in ordinary life carries no protection in court. This is as important as the list itself.

Relationship	Privileged?	Position
Advocate and client	Yes	Sections 132 to 134
Spouses	Yes, as to communications during the marriage	Section 128
Doctor and patient	No	There is no medical privilege in Indian law. A doctor may be compelled to disclose what a patient told him, subject to professional obligations which do not create a privilege in court
Priest and penitent	No	No provision creates such a privilege, and a confession to a religious adviser is not protected
Journalist and source	No	There is no statutory privilege for journalistic sources in India; the position is governed by the court's discretion rather than by any provision of the Adhiniyam
Accountant, banker, agent and client	No	Ordinary professional confidence does not create a privilege; disclosure is governed by any special statute and by the court's process
Mediator and parties	Not under the Adhiniyam	Confidentiality in mediation rests on the statute governing mediation, not on this chapter

⚠ Confidentiality is not privilege

A professional obligation not to disclose — of a doctor, a banker, an accountant, a counsellor — is enforceable in its own field and says nothing about what a court may require. Privilege is a rule about compellability in court, and it exists only where the Adhiniyam or another statute creates it. A witness who declines to answer on the ground that the information is confidential has raised something that is not a legal objection, and the court may require the answer.

9. Raising and Resisting a Claim of Privilege

Identify the section. A claim of privilege that does not rest on a provision is not a claim of privilege.
Identify the holder, and establish whether he has consented. A privilege belonging to a client or a spouse is unlocked only by that person.
For Section 128, separate communication from observation. The privilege covers what was said, not what was seen or done.
For Section 132, establish that the communication was in the course and for the purpose of the employment, and consider whether either proviso applies.
For Section 133, note that waiver occurs at the question, not at the calling of the advocate.
For Section 129, require the claim to be made by the head of the department with material, and remember that the court decides — Raj Narain and S.P. Gupta.
For Section 131, distinguish the source from the information, and consider whether the interests of justice require disclosure.
For Section 136, ask whose entitlement to refuse is being asserted, and whether that person has consented.

10. The Position Stated Shortly

A privilege excludes relevant evidence, and each is justified by an interest the law values more than the information.
Most privileges belong to somebody and may be given up by that person; those held in the public interest have no private holder.
Section 128 protects communications, not observations, and survives the end of the marriage.
Under Section 129 the claim is for the department but the decision is for the court, and the test is injury to the public interest — Raj Narain.
Section 131 protects the source of information about an offence, not the information itself.
Legal professional privilege belongs to the client, continues after the employment ceases, and extends to interpreters, clerks and servants.
Waiver under Section 133 occurs when the advocate is questioned on protected matters, not when he is called.
Section 137 is a use immunity, not a privilege, and there is no medical, priestly or journalistic privilege in Indian law.

11. Related Topics and Provisions

Topic or provision	Connection
Competency and Privilege of Witnesses — Sections 124 to 139	The chapter as a whole
Examination of Witnesses — Sections 140 to 168	How objections are taken and questions put
Confession and Article 20(3)	The constitutional protection, and why Section 137 does not offend it
Public Documents — Sections 74 to 77	Official records, and the route by which they are proved when not privileged
Notice to Produce a Document — Section 64	Production of documents, and the limits in Sections 135 and 136
Cloud-Stored Data as Evidence	Section 136 as extended to electronic records held by a third party
Sections 127 to 137, BSA	The eleven privilege provisions