INDIA Law and Practice Contributed by: Aditya Jalan, Urvashi Misra, Bhagya K. Yadav and Sushrut Garg, AZB & Partners
8.2 Privilege The Bharatiya Sakshya Adhiniyam, 2023 (BSA) (which replaces the Indian Evidence Act, 1872) recognises the principle of privilege which includes: • Legal professional privilege: Under Sections 132–134 BSA protects confidential client–advocate communications, except those made for illegal purposes. The Supreme Court has recognised the importance of maintaining professional confidenti- ality in the advocate-client relationship as integral to the administration of justice in Re: Summoning Advocates, 2025 INSC 1275 who give legal opinion or represent parties during investigation of cases and related issues. • Legal professional privilege does not extend to in- house counsel, and is only applicable to a practic- ing advocate. • Sections 129–131 BSA allow withholding official records on public interest grounds, subject to court review ( S . P . Gupta v President of India AIR 1982 SC 149). Supreme Court of India held that such privi- lege is subject to judicial balancing ( State of Punjab v Sodhi Sukhdev Singh 1961 AIR 493). Privilege may be waived expressly or impliedly, par- ticularly where the privileged communication is vol- untarily disclosed or relied upon by the party ( V . C . Rangadurai v D . Gopalan , (1979) 1 SCC 308). 8.3 Confidentiality Indian law does not recognise a standalone, gen- eral “confidentiality privilege,” but courts may permit withholding information where disclosure would harm state interests, privacy, or fiduciary relationships, sub- ject to judicial balancing. In Central Board of Second- ary Education v Aditya Bandopadhyay , the Supreme Court recognised confidentiality as a relevant but not absolute ground. Under Section 151 CPC, courts may limit disclosure to prevent abuse, while allowing exceptions where required for justice, public interest, or fair trial. 8.4 Witness Evidence Witness evidence is governed by the BSA and CPC. Sections 137–138 of BSA outline examination, cross- examination, and re-examination, with cross-exam-
ination serving as a key test of credibility ( State of Kerala v Rasheed (2019) 13 SCC 297). In civil proceedings, affidavit-based evidence is com- mon pursuant to Order XVIII Rule 4 of CPC, with cross- examination being conducted orally in court or before a commissioner. Pre-trial depositions, as understood in certain jurisdictions like the United States, are gen- erally not recognised, though commissions for record- ing evidence under Order XXVI CPC serve a limited analogous function. 8.5 Expert Evidence Section 39 of BSA recognises expert opinions on spe- cialised matters as relevant evidence, but such opin- ions are evidentiary and not determinative. Experts may be appointment by either of the parties, or by the Court. Courts also have an express power to appoint experts under Order XXVI Rule 10A of CPC for sci- entific investigation. Experts must assist the court impartially. Expert evidence is advisory and subject to critical evaluation ( Malay Kumar Ganguly v Sukumar Mukher- jee (2009) 9 SCC 221; State of H . P . v Jai Lal and others , (1999) 7 SCC 280). Courts are not bound by expert opinion and must independently assess its reliability. Enforcement of foreign judgments in India are gov- erned by Sections 13, 14, and 44A of CPC, requiring jurisdiction, finality, merits, compliance with natural justice, absence of fraud, and consistency with public policy. Under Section 44A, judgments passed by an iden- tified court in a reciprocating territory, ie a country which the Indian Central Government by a notification in the Official Gazette, declared to be a reciprocating territory, can be enforced as if passed by an Indian court. India is also a signatory to the Hague Conven- tion on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. However, in case of a non-reciprocating territory, the party must 9. Enforcement 9.1 Enforcement of Judgments
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