Section 133 BSA: Privilege not waived by volunteering evidence

Bharatiya Sakshya Adhiniyam, 2023

Section 133 BSA at a Glance

Section 133 BSA deals with privilege not waived by volunteering evidence. It replaced Section 128 IEA on 1 July 2024.

Was IEA

Section 128 →

Section 133 BSA Bare Act Text

133. Privilege not waived by volunteering evidence

If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 132; and, if any party to a suit or proceeding calls any such advocate, as a witness, he shall be deemed to have consented to such disclosure only if he questions such advocate, on matters which, but for such question, he would not be at liberty to disclose.

Source: Section 133, Bharatiya Sakshya Adhiniyam, 2023

Section 133 BSA in Simple Words

Section 133 of the Bharatiya Sakshya Adhiniyam, 2023 protects a party from losing privilege (protection against disclosure of confidential professional communications) merely by giving evidence in court. Under the Adhiniyam, a party to a suit (a civil court case) does not give up that protection simply by stepping into the witness box.

The rule applies whether the party testifies by choice or is called by someone else. Giving evidence in the suit does not count as consent to the disclosure of professional communications covered by Section 132 BSA.

In a suit or other court proceeding, a party can also call the advocate (a lawyer) to testify as a witness without automatically consenting to disclosure. The party is treated as having consented only when the party asks the advocate about matters that the advocate would otherwise not be free to reveal.

When Section 133 BSA Applies

  • Applies when a party in a suit testifies in that case, whether by choice or otherwise, so that testifying does not count as consent to the disclosure of professional communications under Section 132 BSA.
  • Applies when a party in a suit or proceeding calls an advocate to testify as a witness.
  • Treats the party as consenting to disclosure only when the party asks the advocate about matters that the advocate could not otherwise disclose.

Example of Section 133 BSA

In October 2024, Ramesh files a suit in Jaipur over a property contract after discussing the dispute in confidence with Priya, an advocate. During the hearing, Ramesh testifies in the suit and also calls Priya to the witness stand to confirm the delivery of a letter. Under Section 133 BSA, neither testifying in the suit nor calling the advocate as a witness counts as consent to disclose professional communications covered by Section 132 BSA. Because Ramesh does not question the advocate about those confidential matters, the professional communications about the property contract remain protected from disclosure.

When Section 133 BSA Does Not Apply

  • Protection against deemed consent does not apply when a party in a suit or proceeding calls the advocate to testify and asks the advocate about matters that the advocate would otherwise not be free to disclose.

Section 133 BSA in the IEA (Previous Law)

Section 133 BSA replaces Section 128 IEA from the old criminal code.

Section 128 of the Indian Evidence Act, 1872 became Section 133 of the Bharatiya Sakshya Adhiniyam, 2023 on 1 July 2024. No substantive change. "Barrister, pleader, attorney or vakil" reads "advocate".

FAQs on Section 133 BSA

What is Section 133 BSA?▼

Section 133 of the Bharatiya Sakshya Adhiniyam, 2023 states that a party to a suit does not consent to the disclosure of professional communications under Section 132 BSA merely by testifying. It also states that calling an advocate to testify counts as consent only if the party asks the advocate about matters the advocate could not otherwise disclose.

Does a party waive privilege under Section 133 BSA by giving evidence in a suit?▼

No. Testifying in a suit, whether at the party's own choice or otherwise, does not count as consent to disclose professional communications covered by Section 132 BSA.

Does calling an advocate as a witness waive privilege under Section 133 BSA?▼

No. Calling an advocate to give evidence counts as consent to disclosure only when the party asks the advocate about matters that the advocate would not otherwise be free to reveal.

What is Section 133 BSA in IEA?▼

Section 128 IEA. Section 133 BSA replaced Section 128 IEA on 1 July 2024 with no substantive change, replacing the words barrister, pleader, attorney or vakil with advocate and updating the reference from Section 126 IEA to Section 132 BSA.

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Disclaimer: This is for informational purposes only. Always consult a qualified advocate for legal advice.

Sources: Bare Act Text, Bharatiya Sakshya Adhiniyam, 2023 ·