Sajjad Husain LawSajjad Husain Law Associates

Introduction

Privilege would mean very little if a lawyer could simply hand privileged files to their office manager and have the other side subpoena the manager instead. Section 136 exists to close exactly that gap — it makes sure a legal protection travels with a document, not with whichever pair of hands happens to be holding it at the moment someone comes looking for it.

Section 136 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) sits in Chapter IX ("Of Witnesses"), immediately before Section 137 on compelled testimony, discussed in the previous article of this run. This piece explains how this "derivative privilege" rule works, why it matters more than ever in an age of outsourced IT and cloud storage, and how it differs from the more specific, narrower rule on title-deeds taken up in the next article, Section 135.

Section 136 BSA and Section 131 IEA: Unchanged

Section 136 carries over Section 131 of the Indian Evidence Act, 1872 without any change to its wording. The reference to "electronic records" was not new to the BSA either — it was inserted into the 1872 Act's text by the Information Technology Act, 2000, when Parliament updated the Evidence Act to cover digital material across the board. The BSA simply preserves that already-modernised text.

A Rule That Borrows Its Force From Elsewhere

Section 136 does not create a new privilege of its own. It has no independent content — it simply extends whatever privilege already exists somewhere else in the Act to cover the situation where the privileged material has passed into someone else's physical possession or technical control. Four provisions elsewhere in this same chapter supply the substance Section 136 protects: Section 129 (evidence as to affairs of State), Section 130 (official communications), Section 132 (professional communications between a legal adviser and client), and Section 134 (confidential communication with legal advisers). Whoever is entitled to refuse production under any of these — a government department, a client, a company — does not lose that entitlement just because the actual document sits on someone else's desk, server, or filing cabinet.

Why This Matters More in the Cloud-Storage Era

Section 131's extension to electronic records in 2000 looked forward-thinking for its time, but the modern reality it now governs — email hosted by a third-party provider, privileged legal files stored on a law firm's cloud drive, financial records processed by an outsourced accounting vendor — makes derivative privilege far more consequential than it was when most confidential material stayed inside a single office's filing cabinets. A litigant who cannot get privileged material directly from the client often has a real incentive to try the back door: subpoena the IT vendor, the cloud host, or the outsourced bookkeeper instead, on the theory that a mere custodian has no reason to resist. Section 136 forecloses that strategy by giving the custodian the same right to refuse that the client itself has — and, in practice, an obligation to raise it.

Worked Example One: The Privilege Holds

A company's outsourced IT vendor hosts the email server containing privileged correspondence between the company's in-house counsel and an external law firm. An opposing party in litigation, unable to obtain these emails directly from the company, serves a summons directly on the IT vendor. The company has not consented to disclosure. Under Section 136, the vendor — despite having full technical access to the emails — is entitled to refuse production, because the company itself could have refused under Section 132's protection for professional communications, and that entitlement travels with the emails into the vendor's custody.

Worked Example Two: The Privilege Is Unlocked

Take the same facts, but this time the company, as part of a settlement strategy, formally consents to the disclosure of those same emails and instructs its IT vendor in writing to comply with the summons. Section 136's protection depends entirely on the absence of that consent. Once the company — the person originally entitled to refuse — agrees to production, the vendor's derivative shield disappears, and the vendor must produce the material like any other document holder without a privilege of its own to assert.

The Procedural Tool Section 136 Pushes Back Against

Section 136 does not operate in a vacuum — it is the substantive shield against a specific procedural power investigators and courts already have. Under Section 94 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the successor to Section 91 of the old Code of Criminal Procedure, a court or police officer can summon any person to produce a document or thing considered necessary for an investigation, inquiry, trial, or other proceeding — and that summons can be directed at anyone believed to be in possession of the material, not only the party who created or owns it. Without Section 136, a Section 94 BNSS summons served on a records custodian rather than the actual privilege holder would be an easy way to sidestep every protection this chapter grants. Section 136 is what tells the custodian — and the court considering whether to enforce the summons against them — that the underlying privilege has not been left behind just because the paperwork changed hands.

Banking records raise a related but procedurally distinct issue, since production of a bank's own account ledgers is separately governed by the Bankers' Books Evidence Act, 1891, which lets a court order certified copies without disrupting a bank's ordinary business. Section 136 does not displace that specialised mechanism — but it does mean that where the underlying material a bank holds is genuinely privileged in the hands of the customer (for instance, a document the customer's own lawyer prepared and merely deposited with the bank for safekeeping), the bank inherits the same right to insist on the customer's consent that any other custodian would have.

Why This Matters in Practice

For litigants and their counsel, Section 136 means the choice of who to subpoena is not a way around a genuine privilege — targeting the custodian instead of the privilege holder gains nothing if the underlying protection is real. For businesses that outsource IT, records management, or accounting functions, it is a reminder that the vendor holding the data is entitled to (and should be instructed to) assert the same privilege the business itself would raise, and that any consent to disclosure needs to come from the actual privilege holder, not the vendor acting alone. For a vendor served with such a summons, the correct response is to notify the privilege holder immediately and let them decide whether to consent, rather than either producing the material unilaterally or refusing without ever checking whether a genuine privilege actually applies.

Key Takeaways

1. Section 136 BSA carries over Section 131 IEA (as amended by the IT Act, 2000, to cover electronic records) without any change in wording.
2. The section creates no independent privilege — it derives its force entirely from Sections 129, 130, 132, and 134, extending whatever protection those provisions give to whoever else ends up holding the same material.
3. A mere custodian — an employee, an IT vendor, an outsourced record-keeper — inherits the same right to refuse production that the originally entitled person has.
4. The only way to unlock production from that custodian is the consent of the person originally entitled to refuse; the custodian cannot waive the privilege on its own.
5. Section 136 is the general "borrowed privilege" rule for any document or electronic record; the narrower Section 135, discussed next, applies specifically to title-deeds held by a non-party witness.

Conclusion

Section 136 is a quiet but structurally important provision — without it, every privilege elsewhere in the Act would be only as strong as the discipline of whoever happened to be physically holding the protected material. By making the protection travel with the document rather than the custodian, the section keeps litigation strategy from becoming a search for the weakest link in a chain of possession. The next article in this run narrows the focus to one specific category of document within this same protective logic — a witness's title-deeds to property, addressed in Section 135.