INDIA Law and Practice Contributed by: Anuradha Mukherjee, Omar Ahmad, Vikram Shah and Soumya Dasgupta, Cyril Amarchand Mangaldas
5.3 Discovery in This Jurisdiction Please see 5.1 Discovery and Civil Cases .
of advocates under the IEA. There have not yet been any cases under the BSA on this issue. 5.6 Rules Disallowing Disclosure of a Document For a party to be compelled by a court to disclose certain documents, the threshold of “relevancy” for such documents to the adjudication of the plaint has to be satisfied. Only those documents that are neces- sary for the adjudication of the issues before the court would be required to be disclosed. 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief In civil actions, Indian courts have developed and adopted a three-pronged test for determining whether a party is entitled to injunctive relief: • the party must establish a prima facie case – ie, a case that is on its face likely to succeed; • the balance of inconvenience, which is a relative test of which party is likely to face greater incon- venience if an injunction is passed or not passed; and • the party must demonstrate that grave and irrepa- rable harm will accrue to the party if such an injunction is not granted. Additional relevant factors include the disclosure of all material information; failure to do so would disentitle a party to equitable relief. In addition to injunctive actions, Indian courts are also empowered to pass anti-suit injunctions to prevent parallel proceedings in other jurisdictions. 6.2 Arrangements for Obtaining Urgent Injunctive Relief Injunctive relief can be obtained when a party dem- onstrates grave urgency. Such circumstances may be apprehensions of precipitative action, grave pecuni- ary loss or any other circumstances which, if urgent injunctive relief is not granted, would result in any law- suit becoming redundant or infructuous.
The general approach to discovery in India is that the parties shall file a list of all documents and photocop- ies of all documents pertaining to the suit that are in their power, possession, control or custody. If any party believes that the counterparty is in possession of documents that are material to the adjudication of the suit, such party may seek discovery through an application before the court. Upon such application being allowed, the counterparty is required to produce such documents. All rules governing disclosure are provided under the CPC. 5.4 Alternatives to Discovery Mechanisms The Indian legal system has provisions governing the discovery and inspection of documents, so there are no alternatives to discovery mechanisms. 5.5 Legal Privilege Indian law recognises the concept of attorney–client privilege, which safeguards written communications and other work product output. The Bharatiya Sak- shya Adhiniyam, 2023 (BSA), which came into force on 1 July 2024 and repeals the Indian Evidence Act, 1872 (IEA), protects client–advocate professional interactions, with disclosures being made only with the prior consent of the client. This privilege continues even after the engagement has ceased. However, if any communication has been made in the furtherance of any illegal purpose or if there is any fact observed by any advocate (in the course of their service as such) showing that any crime or fraud has been com- mitted since the commencement of their service, then the privilege under Section 132 of the BSA will not be applicable. The duty of confidentiality is also applica- ble to interpreters, clerks and employees of the legal counsel. “In-house counsels” are not covered under the attor- ney–client privilege exception under the BSA, as an “advocate” cannot be a full-time salaried employee. However, in certain cases it has been held that if the salaried employees give legal advice to their employ- ers, their advice and communications giving such advice would receive the same protection as those
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