INDIA Law and Practice Contributed by: Vijayendra Pratap Singh, Asif Ahmed, Tanmay Sharma and Bhanu Jindal, AZB & Partners
under the Act is that of “inquiry” and not investi- gation per se. However, such right will be avail - able once a person is arrested for the offence of money laundering under the PMLA. Civil Proceedings Under the same principle, since civil disputes do not lead to “self-incrimination” , no right to silence is available in civil proceedings for adju - dication of fraud, and a court may draw adverse inferences on issues wherein the defendant does not adduce evidence or refuses to give testimo - ny to defend their case. This is in line with the principle enshrined in Section 119 of the BSA. 6.2 Undermining the Privilege Over Communications Exempt From Discovery or Disclosure In India, privilege from disclosing communica - tions between a lawyer and their client is statuto - rily recognised under Sections 132(1), 132(3) and 133 of the BSA, respectively, and under Section 227 of the Companies Act. This privilege from disclosing communication between a client and lawyer exists even after such a relationship has ended. However, there are few exceptions to this rule – ie, where: • any such communication was made in fur - therance of any illegal purpose; and • any fact observed by any lawyer, in the course of their employment as such, shows that any crime or fraud has been committed since the commencement of their employ - ment. This privilege is also waived in cases where a client expressly waives their privilege or adduces evidence and offers themselves as a witness, in which case they may be compelled to dis - close any communication, which, in the opinion of the court, is necessary in order to explain any
evidence they have led, and no other. This has to be read in the context of Section 133 of the BSA wherein, by merely volunteering to give evi - dence, such a privilege is not waived. The Sec - tion also contemplates that, if a party calls in their lawyer as a witness, they may be deemed to have consented to such disclosure only if they question their lawyer on fact, which otherwise would have been protected from disclosure under Section 132(1) of BSA. While Section 132(1) of the BSA provides for priv - ilege in communication with “barrister, attorney, pleader or vakil” , the same distinction is not vis - ible in the Advocates Act, 1961 (the “Advocates Act” ), wherein only an “advocate” is permitted to practise the “profession of law” in India. While the Advocates Act does not make a distinction between different types of legal professionals, the intent of the legislature is clear and intended to use an inclusive definition. Further, the lan - guage in Section 134 of the BSA uses an even wider connotation of “legal professional adviser” , which has not been defined in the Advocates Act. However, it is to be noted that, under the Bar Council of India Rules (the “BCI Rules” ), when a lawyer joins a company under full-time employ - ment, they are under an obligation by such rules to surrender their registration as an advocate. This conundrum creates a complexity in rec - ognising privilege of communication with “in- house” legal counsels in India. There have been instances where the High Courts have considered the nature of advice or the scope of work of an in-house legal coun - sel to extend legal privilege to communications with in-house counsels or departmental lawyers engaged in government employment. However, some High Courts have taken the view that an
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