INTRODUCTION
Indian Legal system including the evidence law is largely influenced by the British Legal system. Like Britain, In India, the illegally obtained evidence was admissible, In Britain the Statutory Provision Changed the admissibility of such evidence under section 78 of the Police and Criminal Evidence Act,1984. Whereas in India Judiciary has to make the first move in absence of any legal provision excluding the illegally obtained evidence. The only criteria regarding the admissibility of evidence in Indian law is relevancy. After the judicial pronouncements, the following were the rules that came to light. All relevant evidence is admissible subject to any constitutional or statutory prohibition. The court has discretion to exclude illegally obtained evidence, if it has harmful and unfair affect for the accused. In India the rule of admissibility is governed by the statutory provision provided by The Indian Evidence Act, 1872.when the enactment is in operation, all the previous uncodified laws which are inconsistent with the code were overruled.
Over a period of time there has been a change in the trend. Several countries have amended their laws. While in others, the judiciary has changed the interpretation of laws and constitution. The Law Commission of India in 1983 undertook the responsibility to study the possible solutions for the issue of illegally obtained evidence. The commission also gave certain recommendations. However still there is no settled legal position on India about the exclusion of illegally obtained evidence.
CONCEPT OF RELEVANCY AND ADMISIBILITY
Evidence means anything admitted by a court to be proved or disprove. The term Relevancy and admissibility are often considered synonyms. All admissible evidence is relevant; however, all relevant evidence is not relevant. The evidence must be relevant and must satisfy all the conditions of admissibility.
There are certain differences between Relevancy and Admissibility.
DIFFRENCE BETWEEN RELEVANCY AND ADMISSIBILITY
COMPARATIVE ANALYSIS
POSITION IN THE UNITED STATES OF AMERICA
In early twentieth century, warrantless and illegal searches were common and evidence obtained through such search was admissible in courts hence, illegally obtained evidence was always admissible in the courts.6
In the United States of America, the illegally obtained evidence is inadmissible due to the Fourth Amendment Act which bars the use of evidence secured through illegal search and seizure. In case of Fremont Weeks v. United states, 7the court overruled the conviction of the accused based on the 4th Amendment.
The judiciary created an Exclusionary principle, according to which the Judge may exclude evidence from criminal trial if it was obtained by police by misconduct.8illegally obtained evidence is inadmissible in criminal trial. The Exclusionary rule is not an absolute rule but it also has its own exceptions:
• If the evidence is found inevitable by police even without illegal search or seizure, then such evidence is admissible.
• Illegally obtained evidence is admissible to impeach the credibility of the accused. • If an officer in good faith believes that he is authorized to search then such an evidence is also admissible.
• Evidence obtained illegally by an independent third person is admissible.
Doctrine of “Fruits of The Poisonous Tree”: this doctrine was first used by Justice Frankfurter in case of Nardone v. United States.9 The court rejected the evidence procured by tapping wires as inadmissible evidence. The Doctrine states that the evidence from an illegal search or seizure which is a tainted source, would also be tainted and hence inadmissible. Evidence is inadmissible because it originates from a poisonous tree. This doctrine is part of the Exclusionary principle.
In Mapp v. Ohio10 the US Supreme Court held that the evidence obtained by violating 4th amendment was inadmissible.
POSITION IN THE UNITED KINGDOM
The evidence was admissible even if it was obtained through illegal means. In Kuruma v. The Queen11, it was held that illegally obtained evidence is admissible if it is relevant to the case and it is the discretion of the court to exclude such evidence if it causes unfairness to the accused. in this case, the evidence of the accused’s unlawful possession of ammunition, discovered in consequence of an illegal search of his person was admissible. Lord Goddrad said that the test to be applied in considering whether evidence is admissible is that whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained.
1
Justice Crompton stated that the law is that: “It matters not how you get it; if you steal it even, it would be admissible in evidence.12 this was a case of allegations of corrupt practices. A letter was written by the person suspected of bribery to his agent and the same letter was produced by his agent. On information being subsequently filed, this letter was called for and was produced by the secretary of the Commission. Objection was raised that it was inadmissible because it was discovered in consequence of an inadmissible statement by the accused. The court held that the letter is admissible.
In R V. Sang13 the accused was charged with the offence of conspiracy to utter counterfeit American bank notes. the court held that the judge at a criminal trial has always a discretion to refuse to admit evidence if in his opinion its prejudicial effect outweighs its probative.
The Unfair Operation Principle is now codified in the UK. Statutory provisions in the UK allow courts to refuse any evidence which the court feels that admission of the evidence will have an adverse effect on fairness of the proceedings14 the court can exclude the evidence if it causes unfairness to the accused.15
THE INDIAN EVIDENCE LAW
India follows the strictest approach in taking evidence. There is no statutory or constitutional provision in Indian Law that excused illegally obtained evidence.16 there is nothing in Indian Evidence Act that forbids courts from taking into account illegally obtained evidence. There is no parallel doctrine in India such as the doctrine of the fruits of the poisonous tree. Illegality employed in collection of evidence does not render evidence inadmissible. Relevancy is the only test of admissibility. Nothing prevents Indian Courts from considering even stolen evidence. The Indian Legal System followed the English Law and applied many decisions of the English Courts in the Indian Context. If the evidence is admissible, it does not matter how it was obtained. the ends do justify means. there are certain reasons due to which the Courts have been admitting illegally obtained evidence:
• The Indian Evidence law is codified, it lays down clearly what is admissible and what is not admissible. The courts are therefore not inclined to go outside the statute to determine the question of admissibility.
• There is no Constitutional Safeguard such as The Fourth Amendment in the USA. Which excludes the illegally obtained evidence.
• The Indian Courts have been relying on the English Case laws. The Courts have recognized safeguards to be carried out during investigation under the Code of Criminal Procedure, 1973. The Indian Courts have been admitting the illegally obtained evidence, however there has been a change of trend in the past few years. The trend of Indian Courts can be divided into three phases:
A) Illegally obtained evidence was admissible:
CASE LAW:
In Birinder Kumar Ghosh 17 the court held that relevant evidence remains relevant even if it was obtained in the course of a search and seizure in violation of the provisions of the criminal procedure code. In Kruruma v. R18 it was held that a judge cannot reject the evidence on the ground that it is obtained by unfair means.
CASE LAW:
R v. Maqsud Ali.19
Two persons suspected of murder went voluntarily with police officers into a room where there was a hidden microphone connected with a tape recorder. They were left alone; they had a conversation and some incriminating information was therefore recorded. The question before the court was, whether such tape recording is admissible in the court of law or not.
The court observed that it is wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved and the voices recorded can be identified. Tape recording was held to be relevant and admissible.
CASE LAW:
In Magraj Patodia v. R.K. Birla20 the court observed that the fact that a document was procured by improper or even illegal means will not be a bar to its admissibility if it is relevant and its geniuses is proved.
CASE LAW:
R.M. Malkhani v. State of Maharashtra 21
Appellant was a Coroner of Mumbai and was trying to take illegal gratification from a doctor to get him out from a case of medical negligence. Doctor, on directions of police officials proceeded to have a phone conversation with the coroner which was being recorded without knowledge of Malkani.
The Supreme Court held that  the tape recording was admissible. The police have fixed a tape-recording instrument to the telephone with the consent of only one party. The other party contended that the evidence was obtained by illegal means. The court held that the tape recording was admissible.
CASE LAW:
Pooran Mal V. Director of Income Tax New Delhii22
The Supreme Court declined to issue writ of prohibition in restraint of the use of evidence obtained during search and seizure by contravention of section 132 of the Income Tax Act, 1961. Court held that the Evidence Act permits relevancy as the only test of admissibility of evidence.
No other provision of any other law excludes illegally obtained evidence. The Court also did not accept any agreement relating to constitutional protection. The court observed that neither by invoking the spirit of the constitution nor by strained construction of any fundamental right can we spell out the exclusion of the evidence obtained on an illegal search.
the court held that unless there is an express or necessary implied prohibition in the constitution or other law, the evidence obtained as a result of illegal search and seizure is not liable to be shut out.
CASE LAW:
State v. NMT Joy23
The court held that the Evidence Act or the Code of Criminal Procedure does not exclude relevant evidence on ground that it was obtained under an illegal search or seizure.
B) Illegally obtained evidence held inadmissible
CASE LAW:
Ukha Kolhe v. State of Maharashtra24
The issue was whether illegally obtained evidence from the body of the accused person by private person could be admitted in evidence.
Appellant was tried for rash and negligent driving under influence of alcohol. On hearing about death of the accident victim, the appellant fainted and was admitted to the hospital where one of the doctors took a blood sample. The court disallowed the blood samples and held that due procedure has to be followed to obtain blood samples. Court observed that the legislative intent was that the prescribed due procedure must be followed for collection of blood samples, there can be no other way of collecting evidence other than what is specifically laid down. In this case court relied on case of Nazir Ahmad v. The King Emperor25 where it was held that where the power is given to do a certain thing in a certain way, the thing must be done in that certain way or not at all. Evidence should follow a due procedure of law, then only it will be admissible.
CASE LAW:
State of Punjab v. Baldev Singh26
The Supreme Court held that illegally obtained evidence is not admissible in the court if it is obtained in violation of section 50 of the NDPS Act. The Supreme court opined that the Pooran Mal case cannot be interpreted to have laid down that a contraband seized as a result of illegal search or seizure could by itself be treated as evidence of possession of the contraband to fasten liability, arising out of unlawful possession of the contraband, on the person from whom the alleged contraband had been seized during illegal search conducted on violation of section 50 of NDPS Act.
CASE LAW:
State (NCT of Delhi) v. Navjot Sandhu 27
The case related to the 13 December, 2001 Parliament Attack. Accused were charged for various offences. One of the major issues was the admissibility of the calls recording. The telephonic conversation of one of the terrorists with his wife was taped. The accused contended that the recording was not credible. The Supreme Court admitted the tape recording relying on the Malhani judgement. The court observed that the tape recording was admissible in the court of law.
CASE LAW:
Selvi and ors v. State of Karnataka28
Several criminal appeals filed from 2004 to 2010 were taken up by Supreme Court. The appeal was about the persons who were accused of a crime, suspects, witnesses involved in the investigation were being subjected to polygraph test, narco analysis etc. without their consent.
The court was considering the issue of legality of scientific test like polygraph or narcoanalysis. The Court observed that the Right against self-incrimination serves as a safeguard against torture and other methods that could be used to get the information. No individual should be forcibly subjected to any of the techniques in question, whether in pretext of investigation in criminal cases or otherwise.
The court in this case seems to suggest or at least presage the exclusion of unconstitutionally obtained evidence. This judgement renders the tests such as polygraphy etc. as unconstitutional and void. This judgement also deals with aspect of privacy and self incrimination. The Court laid down several guidelines to be followed while getting evidence by using any of the abovementioned methods.
CASE LAW:
Umesh Kumar v. State of Andhra Pradesh29
The court observed that as a matter of caution, the court in exercise of its discretion may disallow certain evidence in a criminal case if strict rules of admissibility would operate unfairly against the accused. The court must also conclude that the evidence obtained is genuine and free from any tampering.
C) After the Justice K.S. Puttaswamy v. Union of India Judgement CASE LAW:
Justice K.S. Puttaswamy v. Union of India30 The court held that the Right to Privacy is a Fundamental Right under Article 21 of the Indian Constitution. There exists a protection against unreasonable search and seizure with respect to personal data. Illegally obtained personal data and its use as evidence will violate the Fundamental Right to Privacy.
CASE LAW:
Vinit Kumar v. CBI.31
The Bombay High Court set aside certain interception orders and directed the destruction of copies of the intercepted messages. The court held that adopting the adage ‘the ends justify the means would amount to declaring the government authorities may violate any directions of the Supreme Court or mandatory statutory rules in order to secure evidence against the citizens. It would lead to manifest arbitrariness and would promote the scant regard to the procedure and Fundamental Rights of the citizens and law laid down by the Supreme Court.
ILLEGALLY OBTAINED EVIDENCE AND THE RIGHT TO PRIVACY
The right to privacy has been declared as a fundamental Right under Article 21 of the Indian Constitution in the recent case of Justice Puttaswamy and Anr V. Union of India. The right to privacy is very important right in the present context. The judgement comes in direct conflict with admissibility of illegally obtained evidence. The nine-judge bench decided this case and held that the citizen has have the right to give consent in relation to the physical body, personal data and property. There exists a protection against unreasonable search and seizure with respect to personal data. Illegally obtained personal data and its use as evidence will violate the Fundamental Right to Privacy.
The right has been extended from person to personal information. This means that the information given for a specific purpose to the state, can be only used for that purpose and not extend to other purposes.32The court observed that the telephone tapping and internet hacking by state in order to get personal data is violation of right to privacy of the citizens. one of the aspects of right to privacy is of informational privacy which deals with person's mind. within right to privacy exists an exception against unreasonable search and seizure. this would mean that evidence that is illegally obtained by violating the fundamental right to privacy will be inadmissible. with declaration that right to Privacy is a Fundamental Right under the constitution of India, the admissibility of illegally obtained evidence is bound to be question. Now the constitution (Article 21) can exclude illegally obtained evidence. There is still no legal provision which excludes illegally obtained evidence. This judgement has set a precedent for the Courts to follow.
LATEST CASE LAWS
CASE LAW:
Yashvant Sinha and Ors. V. Central Bureau of investigation 33
There were three document that provided evidence about Rafale deal. In 2019 Yashwant Sinha and others filed an appeal in Supreme Court to review the 2018 judgement. On March 6,2019 the CBI informed the court that documents relating to Rafale deal has been stolen from Defense ministry. The court relied on Pooran Mal case and held that the test of admissibility of any evidence lies in its relevancy until and unless it is expressly or impliedly barred by constitution or any statute The Court stated that it cannot now ignore the information before it, as the same may be relevant in greater public interest.
THE LAW COMMISSION REPORT
The Law Commision on its own took up the matter of illegally obtained evidence and formulated its 94th Report. The Commission thoroughly examined various legal systems of the world and tried to find the method and approaches used by those countries to deal with illegally obtained evidence.
1. The commission observed that the Indian Constitution does not have any provision relating to the exclusion of evidence. The Commision at the end of its report tried to pose a question that does Indian Legal System need any reform in law to deal with the issue.
2. It also analyzed the kind of reform needed, I.e., is there any need for legislative change or solely giving the judges the discretion to exclude the illegally obtained evidence solve the purpose.
3. If the admission of evidence brings disrepute to the legal system, then the courts must be given discretion to exclude such evidence.
4. The Commission felt that the major deficiency in the present Indian position is that it reflects a legalistic and statute-oriented approach, which completely shuts out any consideration of deeper human values.
5. There should be a recognized power in the court to take into account all important aspects which are of basic relevance to the functioning of judiciary. 6. The Commision did not advice incorporation of provision which would shut out an evidence just because it is illegally obtained. The provision must give discretion the courts rather than mandating the exclusion of evidence. The Commision want to refer to the English way, where a statutory provision gives discretion to the court to exclude the evidence.
7. The commission also discussed the factors which should influence the discretion of the courts. The reasonable concrete test to exclude evidence should be the fact that does circumstances in which the evidence is obtained were such that admitting such evidence bring disrepute to judiciary.
8. The Commision also found it useful to enumerate the circumstances to be taken into account by court in exercising its discretion.
9. The commission recommended addition of new chapter containing new section 166A in the Indian Evidence Act, 1872
CHAPTER 10A
166A. (1) In a criminal proceeding, where it is shown that nothing in evidence was obtained by illegal or improper means, the court after considering the nature of illegality or impropriety and all the circumstances under which the thing tendered was obtained, may refuse to admit it in evidence, if the court is of the opinion that because of the nature of the illegal or improper means by which it was obtained its admission would tend to bring the administration of justice into disrepute.
(2) In determining whether an evidence should be excluded under this section, the court shall consider all the circumstances surrounding the proceedings and the manner in which the evidence was obtained, including-
(a) the extent to which the human dignity and social values were violated in obtaining the evidence;
(b) the seriousness of the case;
(c) the importance of the evidence;
(d) the question whether any harm to an accused or others was inflicted willfully or not, and
(e) the question whether there were circumstances justifying the action, such as a situation of urgency requiring action to prevent the destruction or loos of evidence.
ANALYSIS
Departure from the traditional approach of not excluding illegally obtained evidence will be advantageous in certain ways:
• It will incentives police to improve their methods of obtaining evidence and investigating according to the law.
• It would protect the rights and dignity of the citizens
• It will check police arbitrariness.
•It will also deter the police in adopting the unfair means to get evidence. In order that such conduct may not be resorted to in the law enforcement, the only effective sanction within the apparatus of law is a rule which excludes evidence obtained illegally.
• It is also argued that where an evidence is obtained by improper or illegal means, it may not always be reliable.
• The disciplinary principle requires that illegally obtained evidence should be excluded even if its reliability is not in doubt and by doing so, the courts will discourage the improper investigations.
• The evidence obtained by illegal means provides a prima facie justification for the exclusion of such evidence.34
• Excluding illegally obtained evidence is the best remedy available with the accused. • Unless the courts refuse to admit illegally obtained evidence, the practice of securing evidence illegally wouldn’t stop.
• It is argued that there are other safeguards to deter the police against using illegal methods. However, these safeguards are not enough to deter officials from taking recourse to illegal means.
• Giving discretion to the courts by statutory provisions might remove the incentive to break the law to get the evidence.
• The ethical argument is that by denying the illegally obtained evidence, it acts as a sanction against the deriving of such benefit by a person who obtained the evidence illegally.
• The admissibility of illegally obtained evidence will be unfair for the accused. Hence, such evidence must be excluded.
• Court by admitting illegally obtained evidence, indirectly implicates itself in the illegality.
There are several arguments which are against the exclusion of illegally obtained evidence:
• The concern of the courts is to find the truth. Exclusion of evidence will obstruct the process of seeking the truth.
• Other remedies against the official employing illegal means should be used rather than excluding the evidence itself.
•It would be a grave injustice to a party to be denied the use of illegally obtained evidence where he was not involved in the illegality.
• The job of the court is not to see how the evidence is obtained. Hence there should be no exclusion of illegally obtained evidence.
SETTLED POSITION OF LAW IN INDIA
Admissibility of illegally obtained evidence has been a matter of debate almost in all Legal systems. The position was settled in the U.S.A. by amending the constitution and introducing the Fourth Amendment Act. In England, the legislature had codified the “unfair Operation Principle.” India has not settled its position in regard to admissibility of illegally obtained evidence and it depends on the discretion of court to settle the position of law in absence of any statutory provision. There is a change in the position of law with the Landmark Puttaswamy judgement. Section 5 of the Evidence Act read with Article 23 and 21 allows to exclusion of illegally obtained evidence. However, this is a judicial pronouncement. The Courts tend to divert from the earlier judicial pronouncements. In the latest case regarding Rafale Jets, the court have again relied on the Pooran Mal case. In absence of any legal provision, Indian Judiciary will continue to witness the to and fro movement of opinion of courts on the same subject.
CONCLUSION
Indian law has been influenced by common law principles and the English legal system. All relevant evidence is admissible subject to any constitutional or statutory prohibition. The courts have the discretionary power to exclude illegally obtained evidence. The conviction of any accused cannot be upheld based on evidence obtained in violation of procedural statutory right of the accused.
While the Indian Courts continue to rely on the English Judgements, the English Courts themselves have distanced from those judgements and have moved on to exclude illegally obtained evidence. Moreover, the English law now has a statutory provision for exclusion of evidence.
There is a need to fill the gap that is present in the law of evidence. The legislature must now strike a balance between the fundamental right to privacy and the conflicting principles of admissibility of illegally obtained evidence. It is imperative for the legislature to enact a provision to solve this conflict between admissibility of illegally obtained evidence and the fundamental rights. The test of this is Article 21 as illegally obtained evidence would now be in direct conflict with fundamental rights. Till the time any provision is enacted, the judiciary itself have to perform the balancing act.