In India, Sections 126 to 129 of the Indian Evidence Act, 1872 deal with privileged that is attached to professional communication between a legal adviser and the client. Section 126 and 128 mention circumstances under which the legal adviser can give evidence of such professional communication. Section 127 provides that interpreters, clerks or servants of legal adviser are restrained similarly. Section 129 says when a legal adviser can be compelled to disclose the confidential communication which has taken place between him and his client.
Section 126 states that no barrister, attorney, pleader or Vakil shall at any time be permitted to
1. disclose any communication made to him by or on behalf of his client or any advice given by him to his client in the course and for the purpose of his employment;
2. to state the contents or conditions of any document with which he has become acquainted in the course and for the purpose of his employment.
There are certain exceptions to this rule. This Section does not protect from disclosure:
1. any communication made in furtherance of any illegal purpose;
2. any fact observed in the course of employment showing that any crime or fraud has been committed since the commencement of the employment.
The protection afforded under this Section cannot be availed of against an order to produce documents under Section 91 of the Code of Criminal Procedure. The document must be produced, and then, under Section 162 of this Act, it will be for the Court, after inspection of the documents, if it deems fit, to consider and decide any objection regarding their production or admissibility.
Under Section 126, it is not that every communication made by a person to his legal adviser is protected from disclosure but only those communications made confidentially with a view to obtain professional advice are privileged. It should also be remembered that the privileged extends only after the creation of pleader-client relationship and not prior to that. Also, communication must be made with the lawyer in his capacity as a professional adviser and not as a friend.
Considering the exception to this rule, existence of an illegal purpose will prevent any privilege attaching to any communication. Thus, communications made with a view to carry out a fraud are not privileged.