Legal Privilege Across Corporate Groups: The Absence of Common-Interest Protection in Indian Law.
This article is written by Christo Thankachan, pursuing B.Sc. LL.B. from West Bengal National University of Juridical Sciences (NUJS), Kolkata.
The legal professional privilege is a foundational principle of evidence law that protects confidential communications between lawyer and client from compelled disclosure. India codifies this legal protection under the Indian Evidence Act sections 126 to 129, a framework which is substantially replicated in the Bharatiya Sakshya Adhiniyam of 2023.
However, the codified regime is structured around a bipartite relationship that exists between a single lawyer and a single client, and it does not extend to situations in which affiliate corporate entities share legal advice in pursuit of a common legal interest. This absence creates a significant lacuna: when holding companies, subsidiaries, and sister entities share legal advice as part of an integrated compliance or regulatory strategy, Indian law offers no common-interest privilege doctrine to prevent that sharing from operating as a waiver.
This article examines this gap through the silence of Indian courts and comparative foreign jurisprudence that has developed mechanisms for preserving privilege within corporate groups, and considers the compliance implications of India’s failure to do so. The article argues that this legal gap is both a doctrinal and practical problem that warrants attention from the legislature and the judiciary.
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