Certain witnesses are immune from giving evidence or no one can compel to certain witness to give evidence .This is known as privilege of witness. The term privilege is derived from the Latin word ‘privilege’ which means special legal right, advantage, or immunity belonging to a person, class or office. The privilege of witness is the right of a witness to withhold evidence to disclose certain matters. The communications that can not be compelled to be disclosed privilege communication. The principle of privilege of a witness is based on the grounds of convenience and public policy. Privilege is a legal freedom on the part of one person as against another to do a given act or legal freedom not to do a certain act. Privilege is an exemption from some duty, burden or attendance to which certain person are entitled.
As per Moonir, Privilege of witness means, “right or duties to refuse , disclose a fact”. Similarly Walker said that, ”Privilege of witness is a rule of evidence, whereby a witness may be rejected in refusing to answer a question or produce a document or answer on interrogatory. Phipson said that there are mainly three reasons behind the privilege of witness as
b.Proper function of public service and
c.Information for the detection of crime.
There are certain circumstances in which certain persons are not compelled to testify/give evidence .Any statement made by such person is said to be privilege. The Evidence Act 2031 of Nepal signifies about the privilege of witness are:
1. Family privilege:
Family privilege person like father and mother, husband and wife, son and daughter cannot be compelled to be witness against each other. This is known as family privilege, in order to keep family relationship intact, confidential, loving, the law has adopted this rule.
2. Matrimonial privilege:
Husband and wife are not compelled to give evidence against each other on matters which he/she communicated the other in the source of their married life. In order to insure confidentiality, love and affection between husband and wife, the law has guaranteed this sort of privilege .This privilege continuous even after the death of husband or divorce between the parties .The evidence shall be given only by the consent or permission of husband or wife. This provision has the exception where evidence shall be given by husband or wife if there is case between them and if husband or wife commits any crime against his/her husband or wife. In the case of Stillman vs. Stillman, American Supreme Court observed that matrimonial privilege is founded upon sound policy. Those living in the marriage relation should not be compelled or to betray the mutual trust and confidence which such relation implies.
3. Judicial privilege:
Judges or Magistrates are not compelled to give evidence on matters, which are related to their professional activities. Judges or Magistrates may not be compelled to answer on those matter where he/she has expressed the matter being a judge. However, if any superior court orders to express such matter then he/she must express. Also, if any act occurs in the court before the judge then the judge may be taken as the witness of such act. In order to ensure independence of judiciary and allow the judge to act freely, the law has adopted this rule.
4. State Privilege:
This kind of privilege deals with the non-confidential matters related to the state administration. Until and unless the concerned authority does not give the consent, such confidential matters may not be revealed. Documents related to security matter or diplomacy is some examples of such documents. They can not be compelled to give evidence, if it is against the interest of the nation. In formers relating to revenue proceeding or crime are protected under this privilege. In the case of HMG. vs Pasang Tsi Tibetan Bhote, the Supreme Court of Nepal made very remarkable decision, one which brought the amendment in the Evidence Act 2031 regarding the privilege of the police officer not to disclose the source or information of the crime. and similarly in the case of Damodar Subedi vs. Ministry of Water Resources, Supreme Court of Nepal held that the information which is to be kept confidential cannot be forced to be revealed according to Article 16 of the Constitution of the Kingdom of Nepal 2047.
5. Professional Privilege:
Legal counseling between lawyer and client are matters, which are not liable to exposure by the lawyer without express permission of the client. The client also can not be compelled to express anything that took place between hire and the lawyer. In order to ensure that the client be free to tell everything to his/her lawyer and received proper legal advice thereon, the law has adopted this rule. However, this privilege is not available in the following two situations as (1)if the client has come to the lawyer to seek such advice which is designed to commit a crime. Such as A comes to B, a lawyer and says that I have prepared a forged document and I want to make case against C. This communication does not come within the privileged and (2)if the client has committed further crime after the appointment of the lawyer to his/her knowledge, he/she can not claim privilege on it. The second crime is liable to expression. Neither the lawyer can advice his/her client to commit and act which is crime .Apart from the privileges state above witness can be compelled to answer all questions put to him before the court. He/she can not be withheld for answering any questions on the ground that if may expose him/her to criminal charge. But he/she can not be prosecuted on the basis of such answer only.
6. Privilege against self-incrimination:
No person is bound to give evidence against himself/herself. The right relates with the right to remain silence of the accused and the right against self-incrimination of the witness. A witness may refuse to answer questions or give documentary evidence only if the answer or document would incriminate the witness. Similarly, the accused has the right to deny answering the question which would intend to incriminate him/her. However, the accused does not hold the privilege not to give his/her finger prints, photographs etc. A person who is suspected of a crime may be compelled to testify before a grand jury, a legislative body, or an administrative board. The person must appear and answer questions, but he/she may claim the privilege against self-incrimination when necessary. Also, if the accused reveals a part of the fact, then he/she is obliged to reveals a part of that fact, then he/she is obliged to reveal whole the fact. Confession sometimes is also regarded as the incriminating statement if not corroborated by the other independent evidence. In the case of Rajendra Birahi vs.HMG, The Supreme Court of Nepal declared that an accused should not be convicted on the basis of confession made by him in police custody unless corroborated by other independent evidences. If the doubt has been has been raised that the statement was not prepared in verbatim and in the case of Chandra Bahadur vs.HMG the Supreme Court has also laid down that it is for the prosecution to establish the guilt of an accused and that the accused need not make any self incriminatory statement because he has the right to remain silent. One cannot be regarded as an offender due to remaining silence because the constitution had guaranteed the right against self-incrimination and so no person is compel to say anything against him/her. But if the accused voluntarily say something then that can be taken as evidence on the support or against his/her. He/she is not made liable for remaining silence but if the collected evidence shows the person liable for the crime done then he/she will be made liable for the crime through remain silence.Similarly in the case of Miranda vs. Arizona the U.S.Supreme Court has protected the right against self –incrimination where the accused may deny answering the question or may refuse to give the documentary evidence which would intend to incriminate the accused himself/herself.The Interim Constitution of Nepal (2007),Article 24(7) also relates with the protection of accused or the witness from those questions which would intend to make these people liable of the punishment.