Indian law mandates that (a) any communications between an advocate and her client, or (b) contents or condition of any document with which the advocate has become acquainted, or (c) advice given by the advocate to her client; during the course of and for the purpose of the advocate’s service, shall not be disclosed in legal proceedings by the advocate. This privilege, commonly known as “legal professional privilege”, belongs to the client and may be displaced only with the client’s express consent or if the statutory exceptions in the proviso to Section 132 of the Bharatiya Sakshya Adhiniyam, 2023 (“BSA”) are attracted [which corresponds to Section 126 of the Indian Evidence Act, 1872 (“IEA”)].

Section 134 of the BSA protects the client from being compelled to disclose “any confidential communication” that has taken place between the client and her “legal adviser”, except when the client chooses to offer herself as a witness. Since this protection applies to the client herself and is predicated only on the confidential nature of the communication, this privilege is substantially different in nature.

In the recent case titled In Re: Summoning Advocates Who Give Legal Opinion or Represent Parties During Investigation of Cases and Related Issues, reported at 2025 SCC OnLine SC 2320 (“In Re: Summoning Advocates Case”), the Supreme Court of India interpreted the expression “legal adviser” used in Section 134 of the BSA to mean only an advocate entitled to practice law in India, as under the Advocates Act, 1961 [See paragraphs 63 to 67, 70, 71(4)].

This article discusses a separate species of privilege born out of the genus of “legal professional privilege”, which is recognised in English common law, and its potential application under Indian law. It is only for that limited purpose that In Re: Summoning Advocates Case has been referred to in this article.

The scope of “legal professional privilege” under the BSA is narrow. Specifically, now that the application of Section 132 and Section 134 has been restricted to advocate-client relationships only. Third parties, such as experts or employees of a corporate litigant, are not covered by “legal professional privilege.”

English common law recognises another, distinct species of privilege, referred to as “litigation privilege.” “Litigation privilege” protects communications or documents exchanged between a client and any person (not just lawyers) if the dominant purpose for which they were created was to prepare for an actual or anticipated litigation. In the Law of Privilege, Third Edition, edited by Bankim Thanki KC, the authors observed as follows:

“The justification for litigation privilege, which developed as a coherent concept towards the end of the nineteenth century, is rooted in the peculiar requirements of adversarial litigation… … …"

The rationale is spelt out in the well-known passage in the judgment of James LJ in Anderson v Bank of British Columbia:

“…as you have no right to see your adversary’s brief, you have no right to see that which comes into existence merely as materials for the brief.”

The nature, scope and origin of this privilege has been traced in the decisions of the House of Lords in Waugh v. British Railways Board, reported at 1980 AC 521, at pages 540 to 542 and Three Rivers District Council and others v. Governor and Company of the Bank of England, reported at [2004] UKHL 48 (“Three Rivers Case”). In Three Rivers Case, the House of Lords observed at paragraph 102:

“102. The conclusion … … … is that communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation are privileged, but only when the following conditions are satisfied:

(a) litigation must be in progress or in contemplation;

(b) the communications must have been made for the sole or dominant purpose of conducting that litigation;

(c) the litigation must be adversarial, not investigative or inquisitorial.”

While it remains an open question whether “litigation privilege” is recognised in Indian law, there are some indicators in Indian jurisprudence that appear to suggest that the application of “litigation privilege” may not be inconsistent with Indian law. For example, in Shri M.L. Sethi v. Shri R.P. Kapur, reported at (1972) 2 SCC 427 (“M.L. Sethi Case”), at paragraph 6, while considering the rules of discovery and inspection under Indian law, the Supreme Court of India observed as follows:

“6. … … … Generally speaking, a party is entitled to inspection of all documents which do not themselves constitute exclusively the other party’s evidence of his case or title… … …"

However, M.L. Sethi Case and a similar line of cases are applicable only on discovery and inspection in the course of adversarial civil proceedings and are traceable to Order XI of the Code of Civil Procedure, 1908, as amended.

In Larsen and Toubro Ltd. v. Prime Displays Pvt. Ltd., reported at 2002 CLC 1116 (Bom) (“Larsen and Toubro Case”), at paragraphs 12, 13, 15, 16, 24, the Bombay High Court drew upon English law on litigation privilege to hold that (a) while the expression “legal adviser” under Section 129 of the IEA (now Section 134 of the BSA) refers to “a person who is qualified to give legal advice” but (b) documents that have come “into existence in anticipation of the litigation either for seeking legal advice or for being used for the purpose of defence or prosecution of the legal proceedings”, would nevertheless be privileged under Indian law, even if not created by an advocate. It appears that in Larsen and Toubro Case, “litigation privilege” was read into Section 126 and Section 129 of the IEA. The reasoning of the decision of the Bombay High Court in Larsen and Toubro Case is evident from the following extracts:

“16. … … … The Supreme Court in its judgment in the case of State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493, has observed thus (Para 92):–

“… … … the Indian Evidence Act was intended to and did in fact consolidate the English Law of Evidence… … … In case of doubt or ambiguity over the interpretation of any of the sections of the Evidence Act we can with profit look to the relevant English common law for ascertaining their true meaning.”

… … … and the law that privilege attaches to a document prepared in anticipation of litigation was the law in England in the 19th century, to be precise much before 1872 when the Indian Evidence Act was enacted… … …

In my opinion, therefore, it can be safely said that in terms of the provisions of Section 126 and Section 129 of the Evidence Act, the legal professional privilege incorporated in those provisions attaches to a document coming into existence in anticipation of litigation.

24… … … all the 21 documents to which these company applications relate are privileged under the provisions of Section 126 and Section 129 of the Evidence Act, because they came into existence in anticipation of the litigation either for seeking legal advice or for being used for the purpose of defence or prosecution of the legal proceedings, and therefore, whether because these documents also contain advice given by the internal legal department of the Applicant, therefore, for that reason also they are privileged or not loses its significance.”

The question of “litigation privilege” being invoked under Indian law was not raised before the Supreme Court in In Re: Summoning Advocates Case. It appears that the decision of the Bombay High Court in Larsen and Toubro Case was not even brought to the attention of the Supreme Court in In Re: Summoning Advocates Case.

As explained above, “litigation privilege” applies to adversarial proceedings like litigation and arbitration and not to investigative or inquisitorial proceedings. In In Re: Summoning Advocates Case, the Supreme Court was primarily dealing with the scope of “legal professional privilege” in police investigations, and not adversarial legal proceedings.

Yet, restricting the general scope of Section 132 and Section 134 of the BSA to advocates only in In Re: Summoning Advocates Case could be viewed as having diluted the scope of “litigation privilege” that was read into Section 126 and Section 129 of the IEA in Larsen and Toubro Case.

Even in that case, it might still be possible to interpret the basic human right to a free and fair trial (which Indian constitutional jurisprudence recognises in relation to Article 14 and Article 21 of the Constitution of India) in a manner that could potentially recognise “litigation privilege” in adversarial legal proceedings under Indian law.

The scope of the genus of “legal professional privilege” under Indian law is well defined by Indian jurisprudence. However, the species of “litigation privilege” has not yet been explored with sufficient clarity.

As a result, it does appear that privilege in India is confined to communications with an advocate, leaving third parties, including in-house counsel and experts, outside its scope. However, it is possible that in an appropriate case, the Supreme Court will have an opportunity to consider (a) whether “litigation privilege” is equally applicable in Indian law, as it is in English law, and (b) if so, define the source, nature, scope and contours of “litigation privilege” under Indian law, in the Indian context.

Gaurav Pachnanda is a Senior Advocate, based in New Delhi, whose practice includes a wide range of commercial litigation and arbitration.