Section 128 IEA: Privilege not waived by volunteering evidence

Indian Evidence Act, 1872

Section 128 IEA at a Glance

Section 128 IEA deals with privilege not waived by volunteering evidence. From 1 July 2024 it is replaced by Section 133 BSA.

Now BSA

Section 133 →

Section 128 IEA Bare Act Text

128. 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 126; and, if any party to a suit or proceeding calls any such barrister, pleader, attorney or vakil as a witness, he shall be deemed to have consented to such disclosure only if he questions such barrister, attorney or vakil on matters which, but for such question, he would not be at liberty to disclose.

Source: Section 128, Indian Evidence Act, 1872

Section 128 IEA in Simple Words

Section 128 of the Indian Evidence Act, 1872 protects a party from losing privilege (protection against disclosure of confidential professional communications) merely by testifying in court. Under the Act, a party to a suit (a civil court case) did not give up that protection simply by stepping into the witness box.

The rule applied whether the party gave evidence by choice or was called by someone else. Testifying in the suit did not count as consent to the disclosure of professional communications covered by Section 126 IEA.

In a suit or other court proceeding, a party could also call the barrister, pleader, attorney or vakil (types of legal practitioners) to testify without automatically giving consent to disclosure. The party was treated as having consented only if the party asked the barrister, attorney or vakil about matters that the legal practitioner would otherwise not be free to reveal.

When Section 128 IEA 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 126 IEA.
Applies when a party in a suit or proceeding calls a barrister, pleader, attorney or vakil to testify as a witness.
Treats the party as consenting to disclosure only when the party asks the barrister, attorney or vakil about matters that the legal practitioner could not otherwise disclose.

Example of Section 128 IEA

In 2022, Anita files a suit in Pune over a shop lease after discussing the dispute in confidence with Farhan, a pleader. At the trial, Anita testifies as a witness and also calls Farhan to the witness stand to prove the date of a notice. Under Section 128 IEA, neither testifying in the suit nor calling the pleader as a witness counts as consent to disclose the professional communications under Section 126 IEA. Because Anita does not question the pleader about those protected matters, the professional communications about the shop lease remain protected from disclosure.

When Section 128 IEA Does Not Apply

Protection against deemed consent does not apply when a party in a suit or proceeding calls the barrister, pleader, attorney or vakil to testify and asks that barrister, attorney or vakil about matters that the legal practitioner would otherwise not be free to disclose.

Section 128 IEA in the BSA

Section 128 IEA is now covered under Section 133 BSA.

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".

View detailed comparison (IEA 128 vs BSA 133) →

FAQs on Section 128 IEA

What is Section 128 IEA?▼

Section 128 of the Indian Evidence Act, 1872 states that a party to a suit does not consent to the disclosure of professional communications under Section 126 IEA merely by giving evidence. It also states that calling a barrister, pleader, attorney or vakil to testify counts as consent only if the party asks that legal practitioner about matters the practitioner could not otherwise disclose.

Does a party waive privilege under Section 128 IEA by testifying in a suit?▼

No. Giving evidence in a suit, whether by the party's own choice or otherwise, does not count as consent to disclose professional communications protected under Section 126 IEA.

Does calling a pleader or vakil as a witness automatically allow disclosure under Section 128 IEA?▼

No. Calling a barrister, pleader, attorney or vakil to give evidence counts as consent to disclosure only if the party asks that barrister, attorney or vakil about matters the practitioner would not otherwise be free to reveal.

What is Section 128 IEA in BSA?▼

Section 133 BSA. It 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, Indian Evidence Act, 1872 ·