• UGI USER
  • Nov 27, 2023
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BHARATIYA SAKSHYA BILL AND THE BAR ON INQUIRING INTO PRIVILEGED COMMUNICATION

Why in the News?

  • Bharatiya Sakshya (BS) Bill, aimed at replacing the Indian Evidence Act of 1872, includes a provision barring courts from probing privileged communication between Ministers and the President.
Source: Bar and Bench

Legal Backing for Constitutional Provision

  • The Constitution (Article 74(2)) already mentions this provision, and the government seeks to enforce it through legislation.
  • The BS Bill intends to give legal weight to Article 74(2) by incorporating it into the evidence framework.

Undefined “Privileged communication”

  • The Bill lacks a clear definition of “privileged communication,” leaving room for interpretation.
  • S. Bajpai, part of the government-appointed Committee for Reforms in Criminal Law, emphasizes the need for a precise definition.

Constitutional Provision and Legal Enforcement

  • While the Constitution inherently holds this provision, the BS Bill emphasizes and enforces it directly.
  • D.T. Achary, former Secretary-General of the Lok Sabha, acknowledges the existing constitutional provision.

 Proviso in Section 165

  • The BS Bill introduces a proviso to Section 165, dealing with the production of documents on court orders.
  • The proviso explicitly states that no court should demand privileged communication between Ministers and the President.

Government’s Oversight on Definition

  • The government’s failure to define “privileged communication” leaves the provision subject to interpretation by the courts.
  • The lack of clarity raises questions about how courts will interpret and apply this provision in practice.

Parliamentary Standing Committee Review

  • The Bill, introduced alongside two other criminal codes, was referred to the Parliamentary Standing Committee on Home Affairs.
  • The committee report highlights key changes, including the omission of four sections from the Indian Evidence Act.

Notable Changes in the Bill

  • The Bill eliminates British legacy references, replacing ‘Vakil,’ ‘Pleader,’ and ‘Barrister’ with the term ‘Advocate.’
  • Section 166 regarding the power of the jury has been deleted in the proposed legislation.