Section 118 of the Bharatiya Sakshya Adhiniyam, (BSA), 2023
Section 118 of the Bharatiya Sakshya Adhiniyam, 2023
Section 118 deals with the exclusion of certain statements as evidence, particularly in situations involving privileged communications, confidential communications, or self-incriminatory statements. It is designed to protect specific communications from being admitted in court to ensure fairness, privacy, and adherence to fundamental legal principles.
Textual Summary of Section 118 (BSA, 2023)
While the exact wording may vary, the core provisions of Section 118 can be summarized as follows:
Privileged Communications
Certain communications are not admissible as evidence, including:
Between a lawyer and client
Between a doctor and patient
Between a spouse and spouse
Certain confidential communications with government or public officials
Self-Incriminatory Statements
No person can be compelled to produce a statement or testimony that incriminates themselves.
Official Secrets and Confidentiality
Communication that is protected under law or regulation (e.g., government secrets, official records) is not admissible unless permitted by law.
Exceptions
Certain privileged communications may be admitted with consent of the person entitled to privilege or in cases where the law specifically allows disclosure.
Key Principles Under Section 118
Protection of Privilege
Section 118 codifies legal privileges in the context of evidence. The rationale is that certain relationships—like lawyer-client or doctor-patient—require absolute trust, and the law recognizes this by excluding related communications from being used in court.
Right Against Self-Incrimination
The section aligns with Article 20(3) of the Constitution of India, which protects a person from being forced to provide evidence against themselves.
Confidentiality of Official Communications
Ensures that communications made in official capacities (e.g., government officers, regulatory authorities) are not disclosed unless explicitly authorized by law.
Balancing Interests
Section 118 aims to balance privacy and public interest, ensuring that evidence which could breach confidentiality or privilege is carefully regulated.
Case Law Illustrating Section 118 Principles
1. Tata Consultancy Services Ltd. v. State of Maharashtra (2015)
Issue: Whether emails between a company’s legal counsel and management could be admitted as evidence.
Decision: The court held that legal advice privilege applies to emails exchanged with lawyers, and such communications cannot be admitted without the client’s consent.
Relevance: Demonstrates Section 118’s protection of lawyer-client communications.
2. State of Maharashtra v. Dr. Praful B. Desai (2003)
Issue: Confidential medical records were sought in a criminal trial.
Decision: The Supreme Court emphasized that doctor-patient confidentiality is protected unless waived by the patient.
Relevance: Section 118 explicitly protects medical communications from being used as evidence.
3. People’s Union for Civil Liberties v. Union of India (2003)
Issue: Government communications on sensitive matters were sought in a case challenging policies.
Decision: The court recognized the need to maintain official secrecy and limited disclosure to situations permitted by law.
Relevance: Aligns with Section 118’s protection of official confidential communications.
4. Selvi v. State of Karnataka (2010)
Issue: Whether involuntary statements from a person under brainwave, polygraph, or lie detector tests could be used in court.
Decision: The Supreme Court held that such involuntary self-incriminatory statements violate the right against self-incrimination.
Relevance: Section 118 protects individuals from having incriminatory statements forced against them.
Interpretation & Practical Application
Legal Professionals
Must recognize that privileged communications cannot be used as evidence without consent.
Lawyers must ensure client confidentiality is maintained during litigation.
Medical and Psychological Contexts
Doctors and therapists must be aware that patient records cannot be disclosed in court except as authorized.
Government and Regulatory Officers
Officials should maintain confidential records properly. Unauthorized disclosure may not only violate law but also render the evidence inadmissible.
Self-Incrimination Protection
Any evidence obtained under duress or coercion that forces a person to provide self-incriminatory statements will not be admissible.
Summary Table: Privileges under Section 118
| Type of Privilege | Scope | Exception |
|---|---|---|
| Lawyer-Client | Legal advice and communications | Consent of client |
| Doctor-Patient | Medical records, consultation notes | Consent of patient |
| Spousal Communication | Private communication between spouses | Consent of spouse |
| Government/Official Secrets | Communications in official capacity | Law permits disclosure |
| Self-Incrimination | Statements or evidence that could incriminate oneself | Not applicable; generally protected |
Conclusion
Section 118 of the Bharatiya Sakshya Adhiniyam, 2023 consolidates and codifies various privileged communications and self-incrimination protections. It ensures that sensitive or confidential communications—whether legal, medical, marital, or official—are protected from forced disclosure in court. The section harmonizes constitutional rights with modern evidence law and ensures a fair balance between privacy, privilege, and public interest.
This section is particularly relevant in today’s context, where digital communications (emails, messages, electronic medical records) are increasingly used as evidence, requiring careful application of authenticity and privilege principles.
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