Column

The law of legal privilege is accorded very little importance in India. Few would deny that one can learn more about legal privilege by watching Hollywood movies and reading John Grisham than from reading Indian law on the subject. It is tragic that despite being provided for in the Indian Evidence Act and acknowledged as a paramount civil right in the rest of the common law world, trifling importance is accorded to it in India and the extent and applicability of the principle remains cloudy and abstract.

Legal privilege protects any conversation or exchange of information between a lawyer and his client from disclosure. In a system that refuses to recognise the ignorance of the law as an excuse, the advice of well-qualified lawyers is one of the principal means by which a person can gain necessary knowledge of the law. Clients must be able to put forth all the information available at their disposal to their lawyers, who, based on the information given them, are able to arrive at the best course of action and evaluate the chances of success. If communications between individuals and their lawyers were subject to being disclosed, it would merely inhibit the divulging of confidential/private information by the client for fear that it may be used against him/her. A relationship of trust is the basis of the entire law.

Moreover, in order to ensure that there are no inhibitions on part of the client when divulging the information, the privilege is considered absolute in nature, ie without any exceptions. This has been the case in almost every developed legal system and has also found recognition by the Bombay high court in a 2002 case of ‘Larsen &Tourbo Ltd v Prime Displays.’ Surely then, it would appear that privilege bars the determination of the truth, and it is for this reason that privilege extends only to information generated for the purpose of seeking legal advice and any such advice already existing is not covered by the doctrine.

However, most importantly, the privilege belongs to the client who may be an individual, corporate or even a state institution. It is in this light that one must examine the recent order by the Chief Information Commissioner holding that legal opinions given by the attorney general and other law officers ought to be under the RTI Act. The order was passed in the context of whether Swann Telecom ought to be investigated by the MCA in the volatile 2G spectrum matter. The dominant influencing factor in the CIC’s decision is the overarching public interest in the divulging of the attorney general’s opinion. The order itself has disastrous consequences on the law of privilege. Even the government, as a legal ‘person’ would require an appropriate atmosphere to discuss its matters with lawyers.

While the government deliberates on its possible options against the order, it would do well to remember that the text of the Right to Information Act, 2005 does not make any reference to legal privilege as a ground on which disclosure to the public can be withheld. Section 8 of the RTI Act further contemplates that even assuming the said information to be exempt from disclosure, it can only be disclosed if public interest so mandates. This is a grave anomaly and represents the glaring ambiguities between common law rights and those granted by statute in India.

Denying privilege would put further pressure on the law officers giving advice in such cases since their opinions would now be subject to public scrutiny- not just legal scrutiny- as a result of which they would be busy covering their tracks rather than giving correct advice in light of the facts presented to them.

However, India is not the first country to be faced with such a problem. Countries like the United Kingdom and Australia that have similar laws on the right to information have had to make accommodations for legally privileged information. The result of extensive deliberation by their courts on the law of legal privilege has been a consistent, and rather right pronouncement, that the public interest in the preservation of legal privilege far outweighs any other public interest. The same ought to be the case in India and the opinions by the law officers ought to be excluded from the purview of the RTI Act. And while the provisions in the Evidence Act are clear on this issue that privilege ought to be accorded without exceptions, ordering that such legal opinions be made public would have cataclysmic consequences in the future. This is, perhaps, an opportune moment for the courts elucidate the law on the subject.