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I. Introduction
The Indian judiciary operated under a great burden, with over five crore pending cases and a poor judge-to-population ratio of just 21 judges per million. The Law Commission of India had recommended a ratio of 50 judges per million more than thirty years ago, yet this is less than half of that.[1] This has led to extensive delays, procedural practices that vary across courts and areas, and broadly a gradual loss of confidence in the justice system.
This burden is particularly observed in cases concerning privileges. Litigation often involves large volumes of confidential data, which ranges from physical to electronic records, and the risk of inadvertently infringing legal privileges or fundament rights has grown. Such information, if handled badly in criminal cases, can lead to a violation of Article 20(3) of the Constitution, which contains the right against self-incrimination.[2] In commercial disputes, attorney-client communications or trade secrets are often the subject of litigation, which further raises problems with confidentiality.
However, Indian law does not have a structured or consistent mechanism to handle such disputes relating to privileges. Judges may themselves go through camera reviews, but this process is both time-consuming and carries a risk of coming across material that could prejudice them to a particular side. International best practices, especially appointment of independent “privilege referees” or “special masters” to overlook contested documents, could be a possible solution. Such neutral experts allow courts to safeguard privilege while reducing delays, a solution that could be especially useful as India aspires to position itself as an arbitration-friendly jurisdiction.[3]
II. Privilege Issues in Contemporary Times
Legal professional privilege remains a cornerstone of justice delivery, protecting the confidentiality of attorney–client communications and ensuring that individuals or corporations can seek legal advice without fear of disclosure. In practice, however, courts worldwide are increasingly confronted with disputes that test the boundaries of this protection. The rapid expansion of electronically stored information (ESI), cloud computing, and cross-border data transfers has made privilege adjudication more complex than ever.
The United States has seen a rise in privilege disputes during high-profile investigations. An example would be the inquiry into President Trump’s conduct regarding certain classified documents, where an independent “special master” was appointed by the federal authorities to separate any privileged documents from admissible evidence.[4] Similarly, in Waymo LLC v. Uber Technologies Inc., a dispute involving confidential trade secrets needed similar separations through voluminous amounts of digitally stored records.[5] Such technology-heavy disputes are of such nature that objective and neutral supervision is required to maintain equitableness.
Even in India, enforcement agencies like the Directorate of Enforcement and the Serious Fraud Investigation Office come into possession of immense amounts of documents during raids.[6] Without a neutral third-party referee, there can be no surety that improper access or misuse of sensitive or privileged legal material does not take place. While the Indian Evidence Act, 1872 (and now the Bharatiya Sakshya Adhiniyam, 2023) allows for privilege under Sections 126–129,[7] there is no judicial mechanism to adjudicate the same and judges themselves must examine such documents and perform camera reviews. This not only consumes scarce judicial time but also risks exposure to information that could subconsciously bias the adjudicator.
As litigation becomes increasingly data-driven, the inadequacies of India’s current approach become clear. Unbiased third-party evaluators, in the form of “privilege referees”, would ensure a structural resolution process of disputes while maintaining the impartial nature of the adjudicating authority. By acting as a procedural filter, they would also protect parties’ confidence that privileged information remains secure, something crucial in both criminal trials and high-stakes commercial litigation.
III. Comparative Jurisprudence on Privilege Referees and Special Masters
Comparative experience demonstrates that privilege referees are neither novel nor experimental; they are an established procedural safeguard in several common law jurisdictions. Their use has been most visible in the United States, where Federal Rule of Civil Procedure 53 expressly permits the appointment of special masters to handle pre-trial and evidentiary matters.[8] Acting as independent evaluators, the officers review the contested documents and report findings to the court. Their aim is to ensure the integrity of privilege claims while not delving into the substantive matter of dispute.
American courts have deployed this mechanism in a variety of contexts. In Heraeus Kulzer GmbH v. Biomet, Inc., the court relied on a special master to manage extensive discovery disputes involving cross-border documents.[9] Similarly, in Blackman v. District of Columbia, a special master was tasked with ongoing monitoring of compliance with judicial directions.[10] These cases show how special masters not only expedite resolution but also shield the judge from exposure to sensitive or prejudicial material. At the state level, California has gone further by codifying the role of discovery referees under its Code of Civil Procedure, thereby institutionalising the practice in routine litigation.[11]
Australia presents a different trajectory. The Australian Law Reform Commission (ALRC), in its influential Report 115 on Discovery in Federal Courts, debated the merits of appointing independent assessors for privilege disputes.[12] While the report stopped short of recommending a wholesale adoption of U.S.-style referees, it acknowledged their utility in managing electronically stored information, especially where the burden of judicial review became unsustainable. Courts in New South Wales and Victoria have since experimented with limited forms of external assistance, reflecting a cautious but pragmatic approach.
The United Kingdom, though less reliant on formal referees, has nevertheless witnessed the rise of court-appointed experts in managing disclosure disputes, particularly under the Civil Procedure Rules.[13] The trend across jurisdictions is clear: where litigation involves large volumes of sensitive data, neutral evaluators enhance efficiency, reduce the risk of judicial bias, and foster greater confidence in the process.
These comparative experiences suggest that privilege referees are not alien to common law traditions. Rather, they represent a procedural innovation designed to reconcile two imperatives: upholding privilege and ensuring efficient case management.
IV. The Need for Privilege Referees in India
While comparative jurisprudence demonstrates the value of neutral referees, the case for their adoption in India is even stronger. Indian courts, despite recognising attorney-client privilege in principle, lack a structured procedure for its enforcement. Under the Indian Evidence Act, 1872 and now the Bharatiya Sakshya Adhiniyam, 2023, communications between a client and their legal adviser are protected.[14] Yet, when privilege is contested, the burden of review falls directly on the judge. Given the massive pendency of cases and the complexity of modern evidence, this model is both inefficient and risky.
An example may be taken of the functioning of enforcement agencies. While raids are happening, authorities seize entire caches of documents which often far exceeds what is relevant to an investigation. Without any protective measure like a filtration mechanism, privileged communications can inadvertently be accessed undermining the fairness of the proceedings as well as the rights of the individual. The current pillars of protection are good faith of officers and ad hoc judicial intervention, neither of which remains stable and provide consistent safeguards.
Another risk which remains is the risk of cognitive bias as judges while review camera evidence of voluminous records is inevitably exposed to sensitive material, even if they didn’t include that as evidence. Despite best efforts at neutrality, it is indicated by research in behavioural psychology which suggests that such exposure can create anchoring effects on our unconscious biases, influencing judicial reasoning.[15] A referee system where independent professionals undertake privilege determination, which could prevent this hazard and also preserve the integrity of adjudication.
Further, structural precedents within Indian law like the Code of Civil Procedure already allows the appointment of commissioners for local investigation, recording of evidence, or examination of accounts.[16] Similarly, there has been a prevalent culture of appointing an amicus curiae in Indian courts to provide expert assistance in complex matters. Extending the same logic, privilege referees would simply be another category of neutral facilitator, one designed to cater to the confidentiality requirement of information-heavy disputes.
In short, India’s unique combination of judicial backlog, expanding regulatory litigation, and rising data volumes makes the absence of privilege referees particularly glaring. Their introduction would not only improve efficiency but also reinforce constitutional guarantees under Article 21 by ensuring fair and unbiased trials.
V. Institutionalising Privilege Referees
It is not enough to only recognise the need for privilege referee; this must also be integrated into India’s procedural laws. To institutionalise this, efficiency, fairness and judicial overlooking must be balanced without negating the utmost adjudicatory authority of courts.
Order XXVI of the Code of Civil Procedure, 1908, already empowers courts to appoint commissioners for specific procedural purposes.[17] A targeted amendment could extend this provision to allow for the appointment of privilege referees in cases involving large volumes of documents, sensitive electronically stored information (ESI), or complex cross-border privilege issues. Threshold triggers, such as the number of documents or the nature of proceedings, would provide consistency and prevent misuse.
Equally important is the neutrality of referees. Borrowing from the U.S. Federal Rules of Civil Procedure, where Rule 53 mandates disclosure of conflicts of interest and allows parties to object,[18] India could create a similar framework. Courts should maintain panels of eligible referees, comprising retired judges, senior advocates, and specialists in commercial litigation. Candidates must disclose conflicts upfront, and parties must be given a reasonable opportunity to raise objections within a fixed time period.
The scope of authority also requires careful drafting. Appointment orders should clearly outline the referee’s tasks, such as reviewing documents in camera, categorising privileged material, and providing a reasoned report. While the referee’s recommendations would be non-binding, judges could adopt, modify, or reject them, ensuring that core judicial power is not delegated. Strict timelines, for example 15-30 days for submission and a week-long objection window, would prevent delays.
In order to ensure compliance and enforcement, these referees should have the power to impose procedural sanctions, like imposition of costs for non-cooperation, but contempt powers should be reserved solely for the courts. Something similar to Rule 53(c)(2) in the U.S., which allows special masters to penalise parties for misconduct, could be used. Such powers would incentivise parties to cooperate and would make the judicial system more efficient without giving up on control.
In order to finance this system, courts could mandate reasonable fees based on the level of complexity and volumes of information involved in the case, and this cost would be distributed amongst the parties. For litigants who cannot afford it or for matters of public interest, a dedicated fund managed through court fees could be set up to subsidise costs for the referees. This would make the system both accessible and reduce inequalities.
Lastly, an amendment to the Arbitration and Conciliation Act, 1996 to explicitly give power to arbitral tribunals to appoint privilege referees could be made. This would increase India’s credibility as a global “arbitration hub” amongst the international community. Thus, the concept of privilege referees could be integrated into existing Indian frameworks and fulfil the dual objectives of efficiency and fulfil constitutional mandates.
VII. Conclusion
To sum it up, the growing volume of sensitive data in regulatory proceedings as well as litigation has made adjudication a recurring challenge for the legal system. The attorney-client privilege does exist in our laws; however, the lack of a structured enforcement process nullifies its existence. Leading in confidentiality, which is the cornerstone of an arbitration proceeding, jurisdictions like the US and Australia demonstrated that privilege referees or special masters can meaningfully reduce judicial burden, prevent inadvertent bias and lastly, protect and safeguard the fairness of proceedings.
In India’s case, implementation and institutionalisation of privilege referees would not become a hurdle at all. The reason being, order XXVI of the Code of Civil procedure and the Arbitration and conciliation act already allow for the appointment of neutral experts in limited contexts. Similarly, extending these mechanisms to cover privilege will not become an issue of a rigorous law-making exercise.
Additionally, the adoption of privilege referees doesn’t only signify a mere procedural reform, rather it’s a step towards restoring confidence in India’s justice system by ensuring efficiency, neutrality and protection of constitutional guarantees.
[1] Law Commission of India, 120th Report on Manpower Planning in Judiciary: A Blueprint (1987).
[2] INDIA CONST. art. 20, cl. 3.
[3] Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2012) 9 SCC 552.
[4] Trump v. United States, No. 22-81294-Civ-Cannon, 2022 WL 4234541 (S.D. Fla. Sept. 15, 2022) (US).
[5] Waymo LLC v. Uber Techs., Inc., No. C 17-00939 WHA, 2017 WL 2123560 (N.D. Cal. May 15, 2017) (US).
[6] Prevention of Money Laundering Act, No. 15 of 2003, §§ 17–18.
[7] Bharatiya Sakshya Adhiniyam, No. 45 of 2023, §§ 132–134.
[8] Fed. R. Civ. P. 53 (US).
[9] Heraeus Kulzer GmbH v. Biomet, Inc., 633 F.3d 591 (7th Cir. 2011) (US).
[10] Blackman v. District of Columbia, 633 F.3d 1088 (D.C. Cir. 2011) (US).
[11] Cal. Civ. Proc. Code § 639 (West 2022) (US).
[12] Australian Law Reform Commission, Report 115: Managing Discovery (2011).
[13] Civil Procedure Rules 1998, Practice Direction 31A (UK).
[14] Bharatiya Sakshya Adhiniyam, No. 45 of 2023, §§ 132–134.
[15] Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Inside the Judicial Mind, 86 Cornell L. Rev. 777 (2001).
[16] Code of Civil Procedure, No. 5 of 1908, Order XXVI.
[17] Code of Civil Procedure, No. 5 of 1908, Order XXVI.
[18] Fed. R. Civ. P. 53(a)(2)–(3) (US).