Jurisprudence, Interpretation and General Laws · Law relating to Evidence

Competency, Privilege and State Affairs Evidence under BSA 2023

Updated 11 October 2026 · Fact-checked

Under the Bharatiya Sakshya Adhiniyam, 2023, everyone can testify unless the Court finds they cannot understand questions or give rational answers (section 124). Advocate-client communications are privileged (section 132). Unpublished official records on affairs of State need the permission of the department head (section 129). Answer by stating the rule, applying the facts, and concluding.

Understand Competency, Privilege and State Affairs Evidence

A competent witness is a person the Court will hear. The Adhiniyam starts from a wide rule: all persons are competent. Section 124 removes this only when the Court considers that a person is prevented from understanding the questions put, or from giving rational answers, by tender years, extreme old age, disease of body or mind, or any other cause of the same kind.

Competency depends on the person's ability, not on their label. A person of unsound mind is not automatically incompetent. The Explanation to section 124 says they are incompetent only if their unsoundness prevents them from understanding the questions and giving rational answers. The same logic applies to a child or a very old person. The Court tests the individual.

Section 126 deals with spouses. In all civil proceedings, the parties and the husband or wife of any party are competent witnesses. In criminal proceedings against a person, that person's husband or wife is a competent witness.

Privilege is different from competency. A privileged witness is competent, but the law stops them from disclosing certain matters. Section 132 bars an advocate from disclosing, without the client's express consent, any communication made to them in the course and for the purpose of their service, the contents or condition of any document they learnt of in that service, or any advice they gave. The protection continues after the service ends and extends to interpreters and to clerks or employees of advocates.

There are two exceptions in the proviso: a communication made in furtherance of any illegal purpose, and any fact observed by the advocate in the course of service showing that a crime or fraud has been committed since the service began. Under section 133, a client who simply gives evidence does not waive privilege. Calling the advocate as a witness waives it only if the client questions the advocate on matters that the advocate could not otherwise disclose.

Section 129 protects affairs of State. No one may give evidence derived from unpublished official records relating to affairs of State, except with the permission of the officer at the head of the department concerned. That officer may give or withhold permission as they think fit. Section 165 adds that the Court may inspect a produced document unless it refers to matters of State, and no Court can require communications between the Ministers and the President of India to be produced.

Key rules to remember

General competency (s. 124): All persons competent, unless the Court considers they cannot understand questions or give rational answers; Causes: tender years, extreme old age, disease of body or mind, or any other cause of the same kind. Unsound mind alone does not disqualify.
Spouses (s. 126): Civil: parties and their spouses are competent. Criminal: the accused's spouse is a competent witness; Competency only. It does not say a spouse can be forced to testify.
Advocate privilege (s. 132(1)): No disclosure without the client's express consent: communications, document contents or condition, advice; Must be in the course and for the purpose of professional service. Continues after service ends.
Exceptions to privilege (proviso to s. 132(1)): (a) communication in furtherance of any illegal purpose; (b) fact observed showing crime or fraud committed since service began; Under s. 132(2), it is immaterial whether the client directed the advocate's attention to the fact.
Who is covered (s. 132(3)): Interpreters, and clerks or employees of advocates; Same protection as the advocate.
Waiver (s. 133): Client giving evidence = no waiver. Client calling advocate as witness = waiver only if the client questions the advocate on otherwise undisclosable matters; Do not say that calling the advocate always waives privilege.
Affairs of State (s. 129): No evidence from unpublished official records on affairs of State without permission of the head of the department concerned; The officer may give or withhold permission as they think fit.

How to solve Competency, Privilege and State Affairs Evidence questions

Use this method for any problem on who can testify, what a witness may refuse to disclose, or whether State records can be used.

1Identify the issue: competency of a person, a privileged communication, or State records.
2For competency, apply section 124: can the person understand the questions and give rational answers? Name the cause (age, disease, unsound mind) and test its effect.
3For spouses, apply section 126 separately for civil and criminal proceedings.
4For privilege, check four things: is the person an advocate (or interpreter, clerk, employee), was the communication in the course and for the purpose of service, and did the client give express consent?
5Then test the proviso: was the communication for an illegal purpose, or did the advocate observe a fact showing crime or fraud since service began? Also check section 133 for waiver.
6For State records, check whether the record is unpublished and relates to affairs of State. If so, section 129 requires the department head's permission.
7Write the conclusion in one clear line: competent or not, protected or not, permitted or not.

Quickest way: Three-question filter

When to use it: Use when you have little time and the problem has a short fact pattern.

Question 1: Can the person understand and answer rationally? If yes, competent (s. 124).
Question 2: Is it an advocate-client communication for professional service? If yes, protected, unless the client consented or an exception applies (s. 132).
Question 3: Is it unpublished official record on affairs of State? If yes, permission of the department head is needed (s. 129).
Close with the section number and a one-line conclusion.

Common mistakes in Competency, Privilege and State Affairs Evidence

Saying a person of unsound mind can never testify.
Students link unsound mind with incapacity in general.
Fix: Quote the Explanation to section 124. Such a person is incompetent only if the unsoundness prevents understanding and rational answers.
Saying privilege protects every communication with a lawyer, including one for an illegal purpose.
Students forget the proviso to section 132(1).
Fix: Always check the two exceptions. A communication to further an illegal purpose is not protected. Mere confession of a past crime to get a defence is protected.
Thinking privilege ends when the advocate stops acting for the client.
Students assume the duty exists only during the engagement.
Fix: The Explanation to section 132 says the obligation continues after the service has ceased.
Believing that a client who testifies waives privilege.
Students mix up giving evidence with consenting to disclosure.
Fix: Section 133: giving evidence is not consent. Calling the advocate as a witness waives privilege only if the client questions the advocate on matters otherwise undisclosable.
Stating that section 129 bans all evidence about the State.
The word 'State' sounds absolute.
Fix: The bar covers evidence derived from unpublished official records relating to affairs of State. It lifts with the permission of the head of the department concerned.
Leaving out interpreters, clerks and employees from privilege.
Students read only section 132(1).
Fix: Add section 132(3). It extends the rule to interpreters, and to clerks or employees of advocates.

Worked examples

Example 1

Ravi, an advocate in Pune, is summoned as a witness in a cheque dishonour case against his former client, Mehta Traders. The opposite party asks Ravi what advice he gave Mehta Traders on the loan documents two years ago. Mehta Traders has not consented. Can Ravi be compelled to answer?

Show the solution

Provision: Section 132(1) bars an advocate from disclosing, without the client's express consent, any advice given in the course and for the purpose of service.
Facts: The advice was given to a client on loan documents, which is professional service. The client has not consented.
Check exceptions: Nothing suggests an illegal purpose or an observed crime or fraud.
Check time: The engagement has ended, but the Explanation to section 132 says the obligation continues after service ceases.

Answer: Ravi cannot be compelled to disclose the advice. It is privileged under section 132, and the privilege continues after the engagement ended, unless Mehta Traders gives express consent.

Example 2

Anita, a clerk in the Finance Department of a State government, is called to prove the contents of an unpublished internal file on a policy decision. She has not obtained anyone's permission. Is her evidence admissible? Would your answer change if the Court is also asked to examine a witness who is a person of unsound mind?

Show the solution

Provision: Section 129 says no one may give evidence derived from unpublished official records relating to affairs of State, except with the permission of the officer at the head of the department concerned.
Facts: The file is unpublished and official, and relates to a State policy decision, which on these facts is an affair of State. No permission has been obtained.
Application: Anita cannot give this evidence unless the head of the department permits. That officer may give or withhold permission as they think fit.
Second part: Under section 124 the Court asks whether the person can understand questions and give rational answers. Unsound mind alone does not make a person incompetent (Explanation to section 124).

Answer: Anita's evidence is not permissible without the permission of the head of the Finance Department under section 129. The witness of unsound mind is competent unless the unsoundness prevents understanding the questions and giving rational answers.

Exam tips

Quote the section number and the key words of the rule in the first line of your answer, then apply facts, then conclude.
In privilege problems, always test both exceptions in the proviso to section 132(1). Examiners often hide a fraud or illegal purpose in the facts.
Use the Explanation to section 124 for any question on unsound mind. It is a favourite short-note point.
Keep competency and privilege apart. A competent witness may still be barred from disclosing a privileged matter.
Use the new Act's name, Bharatiya Sakshya Adhiniyam, 2023. Do not cite the Indian Evidence Act, 1872 as current law.

Practice questions from Law relating to Evidence

Competency, Privilege and State Affairs Evidence: frequently asked questions

What does section 129 of the BSA 2023 say?

It says no one may give evidence derived from unpublished official records relating to affairs of State, except with the permission of the officer at the head of the department concerned. That officer may give or withhold permission as they think fit.

Who is a competent witness under BSA 2023?

Under section 124, all persons are competent unless the Court considers that they cannot understand the questions or give rational answers because of tender years, extreme old age, disease of body or mind, or a similar cause. Competency is tested person by person.

Does advocate-client privilege have exceptions?

Yes. Section 132(1) does not protect a communication made in furtherance of any illegal purpose, or any fact the advocate observed in the course of service showing that a crime or fraud has been committed since the service began.

Can a client waive privilege?

Yes, by express consent under section 132. Under section 133, merely giving evidence is not consent. Calling the advocate as a witness is consent only if the client questions the advocate on matters the advocate could not otherwise disclose.