Section 128: Privilege Not Applicable to Criminal Purpose

Overview

Section 128 of the Bhartiya Sakshya Bill, 2023, deals with a crucial exception to the rule protecting confidential conversations between a lawyer and their client. Generally, these conversations are private and can’t be used as evidence in court. However, this section states that if a client tells their lawyer about a planned crime, or seeks legal advice *to help commit* a crime, that communication loses its protection and can be revealed as evidence.

Key Principles / Ingredients

• Type of Evidence: This section primarily concerns oral communications, but also extends to documentary and electronic evidence if the communication itself (e.g., an email or letter) details the criminal purpose.
• Conditions for Admissibility/Relevancy: The communication must be directly linked to furthering an *illegal or criminal purpose*. Simply discussing past crimes isn’t enough; it must relate to a plan to commit a future crime or ongoing criminal activity. The communication becomes relevant and admissible *because* of its connection to the crime.
• Burden of Proof Implications: The prosecution (the side bringing the case) has the burden of proving that the communication between the lawyer and client was, in fact, made in furtherance of an illegal or criminal purpose. They must demonstrate this connection to the court. The privilege isn’t automatically lost; it must be *shown* to be misused.

How Courts Use this Provision

Judges carefully scrutinize situations where this section is invoked. They will first determine if a lawyer-client relationship existed. Then, they’ll examine the content of the communication to see if it directly relates to a planned or ongoing crime. The court will consider the context of the conversation and whether the legal advice was sought to facilitate illegal activity. The judge will likely hold a hearing (often *in camera* – meaning in private) to review the communication and determine its admissibility.

Illustrations and Examples

• Example 1 – Simple Situation: A client tells their lawyer, “I plan to rob a bank tomorrow. Can you advise me on how to avoid getting caught?” This communication is not privileged and can be disclosed.
• Example 2 – More Complex Situation: A client tells their lawyer, “I was involved in a car accident and I think the other driver was at fault, but I didn’t have insurance. I want to know how to avoid being sued.” While the client is discussing a potentially problematic situation, it doesn’t directly indicate a *future* criminal act. The court would need more evidence to determine if the advice sought was to commit perjury or obstruct justice.

Important Provisos / Explanations

The section doesn’t contain specific provisos or explanations. However, the interpretation relies heavily on establishing a clear link between the communication and the criminal purpose. The focus is on preventing the legal system from being used to aid criminal activity.

Difference from Old Evidence Act (if applicable)

The Bhartiya Sakshya Bill, 2023, largely retains the principles established in Section 126 of the Indian Evidence Act, 1872, regarding lawyer-client privilege. However, the new Bill aims for greater clarity and precision in defining the scope of the privilege and its exceptions. The emphasis on ‘furtherance of an illegal or criminal purpose’ is consistent with the previous Act’s intent but is presented in a more direct manner.

Key Takeaways

• Lawyer-client privilege isn’t absolute.
• Communications related to *future* crimes lose their protection.
• The prosecution must prove the link to criminal activity.
• The purpose of the communication is key – was it to seek advice *about* committing a crime?