INDIA Law and Practice Contributed by: Anuradha Mukherjee, Omar Ahmad, Vikram Shah and Soumya Dasgupta, Cyril Amarchand Mangaldas
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 party 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 govern- ing the discovery and inspection of documents, so there are no alternatives to discovery mecha- nisms. 5.5 Legal Privilege Indian law recognises the concept of attorney- client privilege, which safeguards written com- munications and other work product output. The Bharatiya Sakshya Adhiniyam, 2023 (BSA), which came into force on 1 July 2024 and repeals the Indian Evidence Act of 1872 (IEA), protects client-advocate professional interactions, with disclosures being made only with the prior con- sent of the client. This privilege continues even after the engagement has ceased. However, if any communication has been made in the fur- therance 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 committed since the commence- ment of their service, then the privilege under Section 132 of the BSA will not be applicable. The duty of confidentiality is also applicable to interpreters, clerks and employees of the legal counsel. “In-house counsels” are not covered under the attorney-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 employers, their advice and communications giving such advice would receive the same protection as those of advo- cates 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 dis- close certain documents, the threshold of “rel- evancy” for such documents to the adjudication of the plaint has to be satisfied. Only those docu- ments that are necessary 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 determin- ing whether a party is entitled to injunctive relief: • establishing a prima facie, case – ie, on the face of it, the party must make out a case that is likely to succeed; • the balance of inconvenience, which is a rela- tive test of which party is likely to face greater inconvenience if an injunction is passed or not passed; and • a party must demonstrate that grave and irreparable 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.
597 CHAMBERS.COM
Powered by FlippingBook