(This article is written by Ashika Dutta, New Law College, Pune, B.B.A. LL.B., Third Year during her internship at LeDroit India)

Original illustration: competence permits a voice to be heard; privilege protects selected relationships from compelled disclosure.

Scope of the Article

• The statutory scheme of Sections 124–135 of the Bharatiya Sakshya Adhiniyam, 2023 and their corresponding provisions under the Indian Evidence Act, 1872.
• The capacity-based test for witness competency, with special attention to child witnesses, preliminary examination, oath, reliability, corroboration and tutoring.
• The distinction between a spouse’s competency to testify and the privilege governing communications made during marriage.
• The scope, exceptions, waiver and practical operation of advocate–client privilege, including digital devices and in-house counsel.
• The related protections for judges, official communications, affairs of State, informant sources and non-party title deeds.
• Landmark and recent judicial decisions, statutory illustrations and recommendations for principled courtroom practice.

Abstract

The law of witnesses begins from inclusion: a person is heard if the person can understand questions and give rational answers. Sections 124–135 of the Bharatiya Sakshya Adhiniyam, 2023 then place carefully defined limits on what otherwise competent witnesses may be compelled or permitted to reveal. This article explains witness competency through the difficult setting of a child witness and separates competency from credibility, oath and corroboration. It next analyses privileged communication between spouses and the advocate–client privilege, showing that each protection has a different holder, purpose and set of exceptions. Landmark authorities are read with recent Supreme Court decisions on child testimony, covert spousal recordings and summons issued to advocates. The article argues that a court should employ an individual, recorded competency inquiry; treat corroboration as prudence rather than an inflexible rule; and construe privilege firmly but only within its statutory boundaries. That approach protects vulnerable testimony, marital confidence, effective legal advice and the truth-seeking function of adjudication.

Keywords: Witness Competency; Child Witness; Privileged Communication; Spousal Privilege; Advocate–Client Privilege; Bharatiya Sakshya Adhiniyam

1. Introduction

A trial depends upon information, but the law does not obtain information at any cost. It first asks whether a proposed witness has the functional ability to understand and answer. It then asks whether a particular relationship or public interest justifies withholding an otherwise relevant disclosure. These are separate questions. Competency concerns the capacity of the person; credibility concerns the weight of what the person says; and privilege concerns whether a defined communication may be disclosed at all.

Chapter IX of the Bharatiya Sakshya Adhiniyam, 2023 (“BSA”) preserves this architecture in Sections 124–139. The present topic, Sections 124–135, begins with the inclusive rule on who may testify and ends with protection for specified property documents held by a non-party witness. Its most practically important parts include the competency of a child under Section 124, spousal competence under Section 126, marital communications under Section 128, and professional communications under Sections 132–134.

The BSA came into force on 1 July 2024 and repealed the Indian Evidence Act, 1872 (“IEA”). Section 170(2), however, saves pending applications, trials, inquiries, investigations, proceedings and appeals, which continue under the IEA. Many leading and even recent judgments therefore cite the old section numbers. That does not diminish their interpretive value where Parliament has carried the language forward substantially unchanged; it simply requires the reader to identify the correct statutory regime for the proceeding.

2. The Statutory Map: Sections 124–135

The following map shows how the provisions fit together. It also prevents a common error: treating every provision in this range as a rule of “competency.” Only some sections decide who may testify; others create non-compellability, non-permissibility or document-production protections.

Source: Bharatiya Sakshya Adhiniyam, 2023, Chapter IX; corresponding provisions checked against the Indian Evidence Act, 1872.

3. Witness Competency and the Child Witness

3.1 Capacity, not status

Section 124 starts from a presumption of competency: all persons may testify. Disqualification is functional, not categorical. A court must find that a cause such as tender years, extreme old age, bodily or mental disease, or a similar condition actually prevents the witness from understanding the questions or giving rational answers. The explanation applies the same logic to unsoundness of mind. A diagnosis, disability or young age therefore does not by itself settle competency.

For a child witness, the provision deliberately fixes no minimum age. The inquiry is directed to this child, on this day, in relation to the questions likely to be asked. Vocabulary, attention, memory and the ability to distinguish experience from suggestion may be explored, but the judge should not convert the exercise into a school examination or demand adult sophistication. Competency is a threshold determination; accuracy, inconsistency and possible influence are considered when the evidence is evaluated.

Figure 1. A child-sensitive competency inquiry should be brief, recorded, age-appropriate and directed to understanding—not academic knowledge.

3.2 Preliminary examination, oath and the record

A sound practice is for the trial judge to conduct a short preliminary inquiry, often described as a voir dire, before receiving the child’s substantive evidence. The questions should reveal whether the child understands ordinary questions, can respond rationally and appreciates the duty to speak truthfully. In Rameshwar v. State of Rajasthan, AIR 1952 SC 54, the Supreme Court stressed the value of recording the judge’s opinion and the reasons for accepting the child. That record permits an appellate court to assess whether the statutory threshold was actually applied.

Competency and oath must not be merged. Under Section 4 of the Oaths Act, 1969, a child under twelve who understands the duty of speaking the truth but not the nature of an oath or affirmation may give evidence without an oath. The absence of an oath does not make the evidence inadmissible. In Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341, the Court confirmed that an unsworn child’s evidence may sustain a conviction when the child is competent and the testimony is reliable.

The modern emphasis is on a demonstrable inquiry, not a ritual endorsement. In Pradeep v. State of Haryana, 2023 SCC OnLine SC 777, a sketchy preliminary examination was criticised. The Court stated that the judge should record the questions, the answers, the conclusion that the child can understand and respond rationally, and satisfaction that the child appreciates the duty to speak the truth. A pre-printed line stating “witness is competent” cannot substitute for judicial application of mind.

3.3 Reliability, tutoring and corroboration

The law rejects two extremes. A child’s evidence is not inherently unreliable, but neither should vulnerability to suggestion be ignored. Panchhi v. State of Uttar Pradesh, (1998) 7 SCC 177, held that child testimony must be evaluated with greater circumspection because tutoring is possible, while firmly rejecting automatic exclusion based on age. Corroboration is a rule of practical wisdom, not an inflexible condition of law.

The Supreme Court’s recent synthesis in State of Madhya Pradesh v. Balveer Singh, 2025 INSC 261, is especially valuable. The Court reiterated that a competent child whose evidence inspires confidence may be relied upon without corroboration, even as the court examines the possibility of tutoring. It distinguished a mere opportunity for adults to influence the child from a reasonable likelihood that the evidence was actually shaped or fabricated. Minor discrepancies, natural to age and memory, should not be magnified into proof of falsehood. Conversely, sterile repetition, material improvements, unexplained delay coupled with influence, or incompatibility with reliable objective evidence may justify caution.

The judgment also recognised that influence may affect only part of a deposition. If a court can separate an influenced portion from a voluntary, confidence-inspiring account, the unaffected part need not be discarded automatically. This is more precise than attaching a single label—“tutored” or “untutored”—to the entire child. Reasons should identify the features of the testimony and the surrounding evidence that support the conclusion.

3.4 A practical child-witness protocol

1. Establish rapport without rehearsing the facts in issue; use simple, neutral questions appropriate to the child’s language and developmental level.
2. Record the preliminary questions, answers and a reasoned finding on understanding, rational response and the duty of truthfulness before substantive testimony begins.
3. Decide oath separately under the Oaths Act; do not treat the absence of oath as absence of legal responsibility to speak the truth.
4. Control complex, repetitive or intimidating questioning and distinguish normal child-language variations from material contradictions.
5. Evaluate possible tutoring from evidence, not stereotype; ask whether influence was merely possible or reasonably likely and whether any affected portion can be separated.
6. Seek corroboration when the circumstances create a concrete reliability concern, while remembering that credible child testimony may by itself prove a fact.

Where the child is testifying in a sexual-offence prosecution, this evidentiary protocol operates alongside the child-friendly safeguards in Sections 33–38 of the Protection of Children from Sexual Offences Act, 2012. Questions are routed through the Special Court; trusted persons may be present; aggressive questioning and repeated appearances are restricted; and screens, video conferencing or similar devices may prevent the child from seeing the accused. In Nipun Saxena v. Union of India, the Supreme Court emphasised the statutory demand for child-friendly courts. These protections regulate the manner of receiving evidence; they do not replace the competency finding under Section 124.

4. Sections 125–127: Inclusion and Limited Institutional Protection

Section 125 strengthens the inclusive principle by permitting a witness who cannot communicate verbally to testify through writing, signs or another intelligible mode in open court. When verbal communication is unavailable, assistance from an interpreter or special educator and videography are mandatory. The rule treats communication support as a means of receiving oral evidence, not as a reason to diminish the witness’s capacity.

Section 126 makes spouses competent witnesses in the proceedings it describes. This is important because competency does not eliminate the separate privilege in Section 128. A wife may be fully competent to testify against her husband, yet be barred from disclosing what he communicated to her during marriage; she may still describe acts she personally saw. Section 127 uses a different technique: it protects a judge or Magistrate from being compelled to answer about judicial conduct or knowledge acquired in court unless a superior court specially orders it, while leaving other events that occurred in the judicial officer’s presence examinable.

5. Spousal Competency and Communications During Marriage

5.1 The two branches of Section 128

Section 128 has two branches. First, a person who is or has been married cannot be compelled to disclose a communication made during marriage by the spouse. Second, that person cannot even be permitted to disclose it unless the communicating spouse, or the representative in interest, consents. The second restraint matters because the privilege belongs to the maker of the communication; willingness of the recipient spouse is not enough.

The statute creates two express settings in which the consent-based bar does not operate: suits between married persons and proceedings in which one spouse is prosecuted for a crime committed against the other. The communication must have been made while a legally recognised marriage subsisted. The protection attaches at the time of communication and survives later divorce or death; a post-marital attempt to disclose does not erase the status existing when the words were communicated.

5.2 Communication is not the same as conduct

In Ram Bharosey v. State of Uttar Pradesh, AIR 1954 SC 704, the accused’s wife could not repeat statements he made to her, but she could testify that she saw him descend from the roof, enter a storage room, bathe and change. Section 128 protects a communication made by one spouse to the other; it does not make the spouse blind to conduct personally observed.

Nor does the section necessarily make the communication itself incapable of proof through every other route. M.C. Verghese v. T.J. Ponnan, (1969) 1 SCC 37, explained that the statutory bar is directed to disclosure in evidence by the recipient spouse. A letter or statement that reaches a third person, or a communication independently overheard, may be proved by that independent source subject to the ordinary rules of relevance, authentication and admissibility. The section also does not bar a spouse from describing what that spouse communicated to the other; its direction is to what was “made to” the witness by the spouse.

Figure 2. Marital and legal-professional privileges protect different relationships, are held by different persons, and operate through different statutory exceptions.

5.3 Covert recordings and the 2025 Supreme Court decision

Technology tests the boundary between disclosure by a spouse and proof by an independent medium. In Vibhor Garg v. Neha, 2025 INSC 829, the Supreme Court permitted recorded conversations between spouses to be received in divorce proceedings. The proceeding fell within the express exception for litigation between married persons. The Court also held that privacy, by itself, did not create an additional exclusion where the evidence statute allowed disclosure, while authenticity and the rules governing electronic evidence still had to be satisfied.

The judgment, delivered in a proceeding governed by the IEA, offers a detailed interpretation of language now reproduced in Section 128. It confirms four useful limits: the privilege is not a general ban on all evidence concerning marriage; it is directed to communications made during a valid marriage; observed acts remain provable; and the statutory exceptions cannot be rewritten as though they did not exist. At the same time, admissibility is not a declaration that covert surveillance is desirable. Courts retain responsibility for relevance, authenticity, proportionality, dignity and protection against unnecessary circulation of intimate material.

6. Advocate–Client Privilege under Sections 132–134

6.1 What Section 132 protects

Section 132 obliges an advocate, unless the client expressly consents, not to disclose communications made by or on behalf of the client in the course and for the purpose of professional service. It also covers advice given in that service and the contents or condition of documents with which the advocate became acquainted through the engagement. The obligation continues after the professional service ends and extends to interpreters, clerks and employees of advocates.

The purpose is practical as much as ethical. A person can obtain accurate advice and prepare a defence only by giving counsel complete information. The privilege is the client’s, while the duty of non-disclosure rests on the advocate. In Superintendent & Remembrancer of Legal Affairs v. Satyen Bhowmick, (1981) 2 SCC 109, the Supreme Court accepted counsel’s refusal to expose notes containing client instructions. The protection, however, is statutory rather than boundless. People’s Union for Civil Liberties v. Union of India, (2004) 9 SCC 580, cautioned that professional ethics cannot be used to claim secrecy beyond the limits of the evidence statute.

6.2 The crime–fraud boundary

Two exceptions prevent the privilege from becoming an instrument of wrongdoing. A communication made in furtherance of an illegal purpose is not protected. Nor is a fact observed by the advocate during the engagement that shows a crime or fraud committed after the professional service began. The distinction is temporal and purposive. A client’s admission of an earlier forgery while seeking a lawful defence is protected; a request that counsel use a forged deed to obtain property is not. Similarly, an advocate’s observation that a client altered an account book after the engagement began falls outside protection. These statutory illustrations show why guilt is not itself the test: the legal system protects advice about past wrongdoing while refusing assistance for future or continuing illegality.

6.3 Waiver and the client’s own protection

Section 133 prevents accidental waiver. A party does not consent to the advocate’s disclosure merely by entering the witness box. If the party calls the advocate as a witness, waiver arises only to the extent the party asks about matters the advocate could not otherwise reveal. Section 134 complements the advocate’s obligation by protecting the client from being compelled to disclose confidential communications with a legal adviser. If the client voluntarily testifies, the court may require only those communications necessary to explain the evidence actually given—not every exchange with counsel.

6.4 Summons to advocates, documents and digital devices

The most important current authority is In Re: Summoning Advocates Who Give Legal Opinion or Represent Parties During Investigation of Cases and Related Issues, 2025 INSC 1275. The Supreme Court held that an investigating agency cannot summon an advocate merely to obtain details of a client’s case. If the agency relies on a statutory exception, the summons must specify the supporting facts, receive prior written approval from an officer not below the rank of Superintendent of Police, and remain open to judicial review under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The protection applies to advocates engaged in litigation, non-litigious work and pre-litigation advice.

The Court drew a careful distinction between privileged disclosure and production of pre-existing documents. Possession by an advocate does not automatically immunise a document that the client could be lawfully ordered to produce. In a criminal matter, a directed document or digital device should be produced before the jurisdictional court, which decides objections and admissibility. Where a digital device may contain information about multiple clients, examination is to occur with the advocate and affected client present, with suitable technical assistance, and should be confined to the permissible material. These safeguards recognise that a single device may mix producible evidence with extensive protected communications.

The same decision held that a full-time salaried in-house counsel is not an “advocate” entitled to Section 132 protection merely because the work involves legal advice. It linked the statutory term to professional independence under the Advocates Act and Bar Council rules. Its directions treated Section 134 separately and did not extend Section 132 to ordinary employer–in-house counsel exchanges. Corporations should therefore avoid assuming that every email copied to an internal legal team is privileged; they must identify the role, recipient, purpose and applicable statutory provision.

7. Public and Documentary Privileges in Sections 129–131 and 135

Sections 129 and 130 protect public rather than personal confidence. Section 129 concerns evidence derived from unpublished official records relating to affairs of State and requires permission from the head of the department. Section 130 prevents compulsion of a public officer to disclose an official confidence when the officer considers that public interest would suffer. The two provisions should not be treated as a label enabling the State to avoid embarrassment. Their justification is injury to public interest, such as genuine risks to security, defence, foreign relations or protected governmental functioning.

The early decision in State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493, analysed how privilege must be claimed and stressed injury to public interest. The openness-oriented approach developed further through State of Uttar Pradesh v. Raj Narain, AIR 1975 SC 865, and S.P. Gupta v. Union of India, 1981 Supp SCC 87, which recognised the competing public interest in the administration of justice and accountable government. Although the BSA largely retains the statutory language, privilege claims remain subject to disciplined judicial scrutiny of their legal foundation.

Section 131 protects the identity of sources who provide information about offences to Magistrates, police officers and, for public-revenue offences, revenue officers. Its purpose is to preserve reporting channels; it does not make every fact in an investigation secret. Section 135 protects a non-party witness from being compelled to produce title deeds, documents evidencing property held as pledgee or mortgagee, or documents tending to incriminate the witness, unless the witness agreed in writing to produce them. It is a targeted production immunity, not a general licence to withhold relevant property evidence.

8. A Coherent Judicial Method

A coherent approach to Sections 124–135 can be expressed through four sequential questions. First, is the person functionally competent to understand and answer? Second, what exactly is proposed—an observed act, a communication, advice, a document, a source identity or an official confidence? Third, who holds the claimed protection, and has consent or a statutory exception altered it? Fourth, even if the material is not privileged, do ordinary rules of relevance, authenticity, electronic proof, fairness and courtroom dignity permit its use? Keeping these questions separate avoids most doctrinal errors.

For child witnesses, the method prevents age-based exclusion while requiring a recorded capacity inquiry and evidence-based scrutiny of influence. For spouses, it separates general competency from the narrower bar on disclosure of communications made during marriage. For advocates, it protects candid legal consultation without concealing illegal purpose, subsequent fraud or independently producible material. For the State, it insists that confidentiality serve a genuine public interest rather than institutional convenience.

Digital evidence makes classification especially important. A voice recording may contain a marital communication, but Section 128’s exception and the rules for electronic proof remain separate. A lawyer’s phone may contain privileged advice, ordinary client documents and unrelated clients’ data, each requiring different treatment. Courts should use limited inspection, sealed procedures, redaction and technical assistance where necessary. Precision is preferable to the two blunt alternatives of unrestricted disclosure and total suppression.

9. Conclusion

Sections 124–135 of the BSA balance participation, truth and protected confidence. Section 124 trusts courts to examine actual capacity rather than status, allowing a child to be heard when the child understands and can respond rationally. The case law makes clear that reliability must be assessed carefully, but corroboration is prudence rather than a mandatory legal tax imposed on childhood. A reasoned preliminary inquiry, a complete record and child-sensitive procedure produce better evidence than either unquestioning acceptance or reflexive distrust.

Privilege requires the same discipline. A competent spouse may testify but cannot necessarily repeat the other spouse’s communications. An advocate must preserve the client’s protected legal confidences, but illegality, subsequent crime or fraud, waiver and lawful document-production rules mark the boundary. Recent Supreme Court decisions have translated these principles into the settings of covert recordings, investigative summons and digital devices. The best reading is therefore neither secrecy at all costs nor disclosure at all costs. It is a relationship-specific, purpose-sensitive and procedurally reasoned application of the statute—one that hears competent voices while protecting only those confidences the law has deliberately chosen to preserve.