Re-Aligning the Legal Professional Privilege Provisions in Indian Evidence Act Jurisdictions with Modern Practice

Abstract

The Indian Evidence Act of 1872 (IEA) continues to be in force in many common law jurisdictions even though many of its rules remain unchanged since its enactment 150 years ago, including the rules on legal professional privilege. However, the modern conception of legal professional privilege is very different as compared to these rules. We make the case that there are at least four critical areas in which there is significant divergence: whether the dominant purpose test can be a unifying constraint on to whom and what legal professional privilege applies to; whether there is an undivorceable link between privilege and confidentiality; whether privilege can be outweighed or overridden by competing interests; and whether the IEA can accommodate the common law doctrine of litigation privilege. If the rules in the IEA and the common law cannot be reconciled, then to the extent that legal professional privilege is one of the most important rules of evidence and is even foundational to the rule of law, IEA jurisdictions ought to consider how the gaps between the two regimes can be bridged to avoid fragmentation and confusion.