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Report No. 93

3.3. The rationale as dealt with in the California Evidence Code.-

In order to indicate more clearly the common thread underlying the various privileges, reference was made in the above-mentioned Report1 of the Law Commission to the California Evidence Code, section 910 of which makes the privileges applicable to "all proceedings".2 That section of the California Evidence Act has the following Explanatory note which may be helpful for understanding. the rationale of evidentiary privileges. The note was mainly intended to justify the broad application of the privileges (i.e., their application to administrative tribunals also), but the observations are of interest for our purposes also, and may be quoted from the above Report:-

"Most rules of evidence are designed for use in courts. Generally their purpose is to keep unreliable or pre-judicial evidence from being presented to the trier of fact. Privileges are granted, however, for reasons of policy unrelated to the reliability of the information involved. A privilege is granted because it is considered more important to keep certain information confidential than it is to require disclosure of all the information relevant to the issue in a pending proceeding. Thus, for example, to protect the attorney-client relationship, it is necessary to prevent disclosure of confidential communications made in the course of that relationship. If confidentiality is to be protected effectively by a privilege, the privilege must be recognised in proceedings other than judicial proceedings. The protection afforded by a privilege would be insufficient if a court were the only place where the privilege could be invoked. "3

1. Law Commission of India, 69th Report (Indian Evidence Act), para. 62.6.

2. Section 910, California Evidence Code.

3. Section 910, California Evidence Code, Explanatory notes, quoted in Law Commission of India, 69th Report (Indian Evidence Act, 1872), para. 62.1.

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