Section 129: Waiver of Privilege

Overview

Section 129 of the Bhartiya Sakshya Bill, 2023, deals with a situation where a person chooses to give up their right to keep confidential their conversations with their lawyer. Generally, these conversations are protected – meaning they can’t be used as evidence in court. However, a client *can* allow the court to see and hear these communications. This section clarifies how that permission, or ‘waiver’, must be given.

Key Principles / Ingredients

• Type of Evidence: This section applies to communications – both oral (spoken) and documentary (written, emails, messages) – between a client and their legal advisor. It doesn’t directly deal with physical objects or witness testimonies, but the *content* of communications about those things is covered.
• Conditions for Admissibility/Relevancy: For a communication that would normally be privileged to become admissible (allowed in court), there must be a clear and voluntary waiver by the client. 'Clear' means it's obvious the client intends to give up the privilege. 'Voluntary' means the client isn't being forced or pressured to do so. Simply mentioning the communication isn't enough; there must be an explicit act showing the privilege is being surrendered.
• Burden of Proof Implications: The party *offering* the previously privileged communication as evidence has the burden of proving that a valid waiver occurred. They must demonstrate to the court that the client clearly and voluntarily allowed the disclosure.

How Courts Use this Provision

Judges will carefully examine the circumstances surrounding the alleged waiver. They’ll look for evidence of the client’s intent. Did the client discuss the communication with someone else? Did they present the communication as part of their case? The court won’t assume a waiver has happened; it must be proven. The court will also ensure the waiver was truly voluntary and not obtained through coercion or misunderstanding.

Illustrations and Examples

• Example 1 – Simple Situation: A defendant in a fraud case tells their lawyer, “I knowingly falsified the documents.” During trial, the defendant *testifies* in court, “I told my lawyer I falsified the documents.” By bringing up the conversation in open court, the defendant has waived privilege, and the prosecution can ask the lawyer to confirm the conversation.
• Example 2 – More Complex Situation: A company is suing a former employee for breach of contract. During a mediation (a private attempt to settle the case), the employee’s lawyer shares a confidential strategy document with the mediator. Later, the company argues this document should be admitted as evidence. The court would need to determine if sharing the document with the mediator constituted a waiver. It might depend on the terms of the mediation agreement and whether the employee intended to waive privilege by sharing it.

Important Provisos / Explanations

The section itself is quite concise. There are no specific provisos or explanations attached to Section 129 in the Bhartiya Sakshya Bill, 2023. The emphasis is on the clarity and voluntariness of the waiver itself.

Difference from Old Evidence Act (if applicable)

The Bhartiya Sakshya Bill, 2023, largely retains the principles of waiver of privilege as found in Section 128 of the Indian Evidence Act, 1872. However, the new Bill aims for greater clarity and conciseness in its language, streamlining the process of determining whether a waiver has occurred.

Key Takeaways

• Legal privilege protects communications between a client and their lawyer.
• A client can *choose* to give up this privilege (waive it).
• The waiver must be clear and voluntary.
• The party using the communication must prove the waiver occurred.