The recognition of the right to privacy as a Fundamental Right has accelerated new debates relating to different aspects of law and governance like data protection regime, Aadhar Card controversy, and admissibility of illegally obtained evidence in the area of Law of Evidence (1). Under the Indian Evidence Law regime, an illegally obtained evidence is admissible in the Court if it is ‘relevant’ to the case and the admission of such evidence has not been expressly or impliedly barred by the Constitution or any other law (2). However, with the emergence of the Fundamental Right to Privacy which prohibits unwarranted search and seizures, this position of law needs to be revamped to secure the privacy rights of the citizens.  

Rule of Admissibility of Illegally Obtained Evidence in other Common Law Jurisdictions-

United States- In the United States, illegally obtained evidence is inadmissible due to the application of the exclusionary principle and the doctrine of ‘Fruits of Poisonous Tree’. While the former rule suggests that illegally obtained evidence cannot be made admissible in a criminal trial, the latter doctrine suggests that even the evidence obtained from primary illegality in the procedures which includes both physical evidences and live testimonies are inadmissible as the evidence evolves from the poisonous tree i.e. the illegal procedure (3). Both these doctrines were formulated to support the Fourth Amendment Rights to the U.S. Constitution which warrant the right of citizens against any unwarranted search and seizures in their persons, houses, or papers (4). In the case of Boyd v. U.S. (5), the US Supreme Court held that illegal search and seizure is an unreasonable interference to the right to privacy of an individual and compelling a person to produce private papers is violative of Fourth Amendment Rights. Further, the US Supreme Court made the exclusionary rule mandatory in all state prosecutions and held that exclusionary rule also acts as a safeguard against Fifth Amendment Rights which include right against self-incrimination (6). The scope of the exclusionary rule was also expanded by US Supreme Court in the case of Katz v. U.S. (7) when it was held that eavesdropping and recording of private conversions of accused also amount to ‘unreasonable search and seizure’ and is violative of Fourth Amendment Rights.

The exclusionary principle is not an absolute rule and certain exceptions have been carved to its application for example, if the evidence is found by the private individual instead of law officer (8), if the evidence would inevitably appear through an illegal search (9), and if the officer conducted the search in good faith and subsequently the warrant was found to be invalid (10), then the exclusionary rule will not be applicable. The extent of applicability of exclusionary rule to exclude the illegally obtained evidence from all purposes in a trial was shifted in the case of Harish v. New York (11), wherein the US Supreme Court held that previously excluded evidence if satisfies the test of ‘trustworthiness’ can be used to shake the credibility of the accused in a trial. Thereby, in the United States, the exclusionary rule is made applicable to safeguard Fourth Amendment Rights but the exceptions posed to this rule acts as a balance to prevent the abuse of power and rights. 

United Kingdom- Under the Queen’s rule, the evidence is made admissible even if it is illegally obtained through the unlawful procedure (12). In the landmark case of Kuruma v. the Queens (13), it was held an illegally obtained evidence is admissible if it is relevant to the case and it is the discretion of the Court to exclude such illegally obtained evidence if it leads to unfairness to the accused which was later known to be ‘Unfair Operation Rule.’ This rule is now codified under section 78 of the Police and Criminal Evidence Act 1984 (PACE) wherein Court has the discretion to exclude evidence if it leads to unfairness to the accused (14). Here, evidence also includes improperly obtained evidence and confessions obtained in defiance of the Rule of the land. 

Canada- As a general rule of evidence, the Canadian Courts follows discretionary rule which entails that Courts exercise discretion to govern the admissibility of an illegally obtained evidence (15). Elaborating further on this rule in the case of R. v. Collins (16), the Supreme Court of Canada held that the use of any evidence that violates the rights enshrined under the Charter is a violation of fair trial and is thereby rendered inadmissible, however, the misbehaviour of officer is not a ground to exclude the illegally obtained evidence. Furthermore, Canadian Court has decreed the rule of absolute exclusion wherein previously excluded evidence cannot be admitted to impeach the credit of the accused (17), which is in exact contrast to the US Supreme Court Ruling in the Harris case.

India Jurisprudence before recognition of Right to Privacy:

The Indian Evidence Act, 1872, formulated during the British Rule contemplates that the admissibility of evidence depends on the extent of its relevancy (18) in the case. Thereby, Indian Judiciary in the case of Natwarlal Damodardas Soni (19) , and R.M. Malkani (20), held that any illegally obtained evidence is admissible in the Court of Law if it is relevant to the matter, but the value of such evidence is to be dealt with care and caution by the Courts. Further, in the landmark case of Pooran Mal v. Director of Inspection of Income Tax (21), the Indian Supreme Court held that no Constitutional or Statutory construction prescribes to exclude the illegally obtained evidence thereby the only test of admissibility of evidence is the relevancy of the evidence. This case also decreed the ‘Unfair Operation Rule’ of England wherein the Courts have the discretion to exclude the illegally obtained evidence if it leads to unfair treatment to the accused.(22)

This position of law was shifted a little when in the case of State of Punjab v. Baldev Singh (23), Supreme Court held that illegally obtained evidence is not admissible in the Court of Law if it is obtained in violation of Section 50 of the NDPS Act, as this provision confers procedural rights to the accused which are statutorily mandated thus are deemed to be followed. This standing of law to exclude the illegally obtained evidence is only confined to the provisions of the NDPS Act and does not apply to other situations.(24)

Thus, the rule of admissibility of illegally obtained evidence after these judicial pronouncements are as follows:

  • All relevant evidence is admissible subject to any Constitutional or Statutory prohibition.
  • The Courts have discretionary power to exclude any evidence obtained in defiance of any procedural statutory right if the evidence leads to unfair treatment to the accused.
  • The conviction of any accused cannot be upheld based on evidence obtained in violation of the procedural statutory right of the accused. (25)

Indian Legal Position after recognition of Right to Privacy:

The 9 Judge Bench in the landmark Supreme Court Case of Justice K.S. Puttaswamy and Anr. v. Union of India and Ors. (26) , has recognized that the right to privacy forms an integral part of the right to life and personal liberty under Article 21 of the Constitution and citizens have the right to give consent in relation to the physical body, personal data, and property. The recognition of the right to privacy under Article 21 defies the reasoning given in the Pooran Mal (27) case that there is no Constitutional construction which prescribes the exclusion of illegally obtained evidence (28). Since citizen has the right to protect their personal data from unreasonable interference by the State through the means of right to privacy it can be presumed that there exists a reasonable expectation of privacy against ‘unreasonable search and seizure’ and any evidence obtained through illegal search should not be made admissible as it would violate the Fundamental Right to privacy of the citizens (29). However, to admit such illegal evidence procured in violation of the right to privacy of any individual there must be legislation in place authorizing the admissibility of such evidence, and such law must have rational nexus with the legitimate aim and must be proportional. (30)

In the recent Rafael Judgment (31) , the Supreme Court retaliated the Pooran Mal (32) case and held the test of admissibility of any evidence lies in its ‘relevancy’ unless it is expressly or impliedly barred by the Constitutional provision or Statutory mandate. This entire judicial regime suggests that India has not settled its position in regards to the admissibility of illegally obtained evidence and it depends on the discretion of Court to settle the position of law in absence of any legislatively enacted law to govern this matter.

Conclusion:

Indian Law regime has largely been influenced by the British jurisprudence and its effects can be seen in the applicability of various legal concepts. Like Britain, Indian Courts also admit illegally obtained evidence and the test of ‘relevancy’ is applied subject to any Constitutional or Statutory restrictions. However, with the recent recognition of the right to privacy as a fundamental right of the citizens, it is imperative to revamp this position of law and to shift towards the exclusionary rule of American jurisprudence in case of violation of privacy rights of citizens to obtain evidence. Further, it is imperative for the Legislature to enact a law to govern this controversy instead of leaving this issue to the Judiciary to give a differential interpretation following the case at hand.  

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1. Prachi Gupta and Aqib Khan, Right to Privacy: Issues and Challenges in the Technological Era, Law Brigade (2019), http://thelawbrigade.com/wp-content/uploads/2019/05/Prachi-Aqib.pdf.

2. Pooran Mal etc. v. Director of Inspection (Investigation) of Income Tax, AIR 1974 SC 348 (¶ 25); see also Bharati Tamang v. Union of India & Ors., (2013) 15 SCC 578 (¶ 37).

3. Dushyant Kishan Kaul, Fruit of the Poisonous Tree: A Comparative Analysis, 4 Commonwealth Law Review-Journal 206 (June 4, 2018).  

4. Constitution of the United States, Fourth Amendment, Constitution Annotated Analysis, and Interpretation of the U.S. Constitution.

5. Boyd and Ors. v. United States, 116 U.S. 616 (1886) (¶ 20).

6. Mapp v. Ohio, 367 U.S. 643 (1961).

7. Katz v. U.S., 389 U.S. 347 (1967).

8. Lefkowitz v. United States Attorney, 52 F.2d (2d Cir. 1931).

9. Nix v. Williams, 467 U.S. 431 (1984).

10. United States v. Leon, 468 U.S. 897 (1984); Arizona v. Evans, 514 U.S. 1 (1995).

11. Harris v. New York, 401 U.S. 222 (1971).

12. R. v. Leathem, 8 Cox CC 498, 501 (1861) (U.K.).

13. Kuruma v. Queen, (1955) AC 197 (U.K.).

14. Siddharth Shukla, Is illegally obtained evidence admissible under the Indian Laws? A comparative analysis of illegally obtained evidence, Ipleaders Blog (Sept. 27, 2018).

15. Gysbert Niesing, The Admissibility of Unconstitutionally Obtained Evidence: Issues Concerning Impeachment, Stellenbosch University (Apr. 2005), https://core.ac.uk/download/pdf/37370861.pdf.

16. R. v. Collins, (1987) 1 S.C.R. 265 (¶ 37) (Can).

17. R. v. Calder, (1996) 1 S.C.R. 660 (Can).

18. The Indian Evidence Act, 1872, No. I, Acts of Parliament, 1872, § 5. 

19. State of Maharashtra v. Natwarlal Damodardas Soni, (1980) 4 SCC 669

20. R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157.

21. Pooran Mal, etc. v. Director of Inspection (Investigation) of Income Tax, AIR 1974 SC 348.

22. Id. 

23. State of Punjab v. Baldev Singh, (1999) 6 SCC 172.

24. Id.

25. Khagesh Gautam, The Unfair Operation Principle and the Exclusionary Rule: On the Admissibility of Illegally obtained evidence in Criminal Trials in India, 27(2) Indiana Int’l & Comp. Law Review 163-164 (2017).

26. Justice K.S. Puttaswamy and Anr. v. Union of India and Ors., (2017) 10 SCC 1, ¶ 489.  

27. supra note 21.

28. supra note 14.

29. Paras Marya, A Relook at the Admissibility of Illegally or Improperly obtained evidence, 8(2) NLIU Law Review 225.

30. supra note 26.

31. Yashwant Sinha and Ors. v. Central Bureau of Investigation, (2020) 2 SCC 338. 

32. supra note 21.

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