Supreme Court Reaffirms Attorney–Client Privilege as a Pillar of Fair Trial

Context:

• On October 31, the Supreme Court of India delivered a significant ruling reaffirming attorney–client confidentiality as essential to a constitutional democracy.

• The judgment arose from a notice issued to an advocate under Section 179 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), seeking disclosure of client communications.

Key Highlights:

Core Ruling

• Lawyers cannot be compelled to disclose client communications unless:

  • The legal advice was used to commit or conceal a crime, or

  • The advocate observed criminal activity during the course of professional engagement.

• The Court held that compelling disclosure would undermine fair trial guarantees.

Statutory Framework (Bharatiya Sakshya Adhiniyam, BSA)

• Section 132 (BSA):

  • Prohibits advocates from revealing professional communications.

  • Exceptions: client consent; communications for illegal purposes; facts observed indicating a crime.

• Section 128 (BSA): Protects marital communications.

• Section 129 (BSA): Bars disclosure of unpublished official records relating to State affairs.

Constitutional Linkages

• The Court constitutionalised professional privilege by linking Section 132 (BSA) with:

  • Article 20(3): Protection against self-incrimination.

• It further strengthened:

  • Article 21: Right to fair procedure and effective legal representation.

  • Article 22(1): Right to consult and be defended by a legal practitioner of one’s choice.

Advocate as a ‘Constitutional Actor’

• The judgment positions the advocate as integral to the constitutional architecture:

  • Safeguards citizens against state overreach.

  • Ensures no prejudice to the accused.

• Investigative power, the Court held, is not unbounded and stops at the lawyer’s door when professional confidence is at stake.

Ethical & Systemic Rationale

• Privileged communications promote:

  • Honesty and trust between lawyer and client.

  • Ethical responsibility in legal advice.

• Weakening privilege would chill candid disclosure, impairing justice delivery.

Key Concepts Involved:

• Privileged Communication: Legally protected confidential exchanges (e.g., attorney–client).

• Self-Incrimination: Protection against being compelled to testify against oneself.

• Rule of Law: Supremacy of law with checks on state power.

• Effective Legal Representation: Core to a fair criminal justice system.

UPSC Relevance (GS-wise):

GS 2 – Polity

• Fundamental Rights: Articles 20(3), 21, 22(1)

• Separation of powers; limits on investigative authority

GS 2 – Governance

• Due process and accountability of investigative agencies

• Institutional safeguards against coercive state action

Ethics (GS 4)

• Professional ethics of advocates

• Balancing truth-seeking with rights protection

Prelims Focus:

• Scope and exceptions to attorney–client privilege

• Statutory protections under BSA

• Constitutional safeguards against self-incrimination

Mains Enrichment:

• Discuss how attorney–client privilege strengthens fair trial without shielding criminality.

• Examine the balance between investigative needs and constitutional liberties.