Section 133 Bharatiya Sakshya Adhiniyam, 2023: Privilege not waived by volunteering evidence

Section 133 of Bharatiya Sakshya Adhiniyam, 2023: Privilege not waived by volunteering evidence

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

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.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Court Sec 2(1)(a) Evidence Sec 2(1)(c)

Legal Commentary & Landmark Judgments: Section 133

Section 133 provides that 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 calls an advocate as a witness, he shall be deemed to have consented only if he questions him on those matters.

Preservation of Legal Privilege: Testifying in court does NOT operate as an automatic waiver of professional legal privilege.
Specific Question Waiver: Privilege is waived ONLY if the client specifically questions the advocate regarding privileged communications.
Client Protection: Prevents adverse parties from forcing disclosure of legal advice during cross-examination of the client.

Key Landmark Precedents:

Superintendent and Remembrancer of Legal Affairs v. Satyen Bhowmick (1981) 2 SCC 109: The Supreme Court affirmed that an advocate cannot be compelled to disclose client instructions; privilege remains intact unless explicitly waived under Section 128 IEA (Section 133 BSA).
Municipal Corporation of Greater Bombay v. Vijay Metal Works (AIR 1982 Bom 6): Held that in-house legal counsel communications also enjoy privilege when legal advice is sought on contentious litigations.

Courtroom Practice & Strategic Litigation Guidance:

When preparing a client for cross-examination, advise them that if opposing counsel asks 'What did your lawyer advise you to do?', the client should decline to answer, asserting statutory privilege under Section 133 BSA.