Code: Section 136 BSA
No one shall be compelled to produce documents in his possession or electronic
records under his control, which any other person would be entitled to refuse to produce if
they were in his possession or control, unless such last-mentioned person consents to
their production.
Explanation of Section 136 BSA
Section 136 of the Bharatiya Sakshya Adhiniyam (BSA), 2023, protects the rights of third parties regarding the production of documents or electronic records in legal proceedings.
This section states that if someone possesses a document or digital record, they cannot be forced to produce it if another person (who holds legal authority over it) could have lawfully refused to produce it. However, if the person entitled to the privilege consents, then production is allowed.
Key Highlights
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Safeguards legal privileges and privacy of third parties.
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Applies to both physical documents and electronic records.
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Prevents compelled disclosure of information that another person has the right to withhold.
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Ensures that only those with proper authority can waive confidentiality.
Illustration
Example 1: Legal Advice Emails
An employee has access to email exchanges between a company and its legal counsel. These emails are privileged. The court cannot compel the employee to produce those emails unless the company, who holds the privilege, consents to their disclosure.
Example 2: Medical Records
A person stores a friend’s medical records on their computer. Even if summoned in court, they cannot be forced to produce those records unless the friend (the patient) allows it, as the friend holds the legal privilege over their health information.
Common Questions & Answers
Q1. What does Section 136 aim to protect?
Section 136 ensures that a person cannot be forced to produce documents or records that another person could legally refuse to produce. It upholds third-party legal privileges.
Q2. Does this provision apply to electronic records?
Yes, it applies to electronic records, such as emails, digital files, cloud documents, or other forms of digital evidence.
Q3. Can a person voluntarily produce the document?
Not without the consent of the person who holds the privilege. Consent must be explicit and informed.
Q4. What types of records are typically protected under this section?
Examples include:
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Confidential legal communications
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Doctor-patient medical records
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Privileged business correspondences
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Classified government documents
Q5. When is consent necessary?
Consent is necessary whenever the document or record in question belongs to someone who has a legal right to withhold it. Without their consent, the person in possession cannot legally produce it in court.
Conclusion
Section 136 of the Bharatiya Sakshya Adhiniyam plays a crucial role in maintaining confidentiality and respecting legal privileges. It ensures that individuals cannot be compelled to produce documents or digital records that legally belong to or are protected by someone else unless proper consent is granted. This provision strengthens the overall framework of legal fairness and privacy in judicial proceedings.
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