Through the looking glass: Locating litigation privilege under the Indian evidence code

Abstract

Indian law is increasingly being tested on issues relating to third-party communication during litigation. One aspect that has been the subject of discussion both in India and other common law jurisdictions is the law relating to privilege that applies to communications between litigants and third parties, in situations where standard rules of ‘attorney-client privilege’ do not apply. This article aims to identify the origins and sources of the law on litigation privilege in India to construct a functional understanding of the applicability of the rule of evidence in Indian adjudicatory processes. It systematically analyses attempts made by Indian courts to import English law rules on litigation privilege to address the foundational weaknesses in the current approaches to importation, suggesting pathways which may be utilised by legal actors to tackle issues relating to such privilege using a textual, legal historical approach.