In this article, Siddharth Shukla discusses the admissibility value of Illegally obtained evidence under the Indian Evidence Act.

The Right to privacy judgement has added a new dimension for consideration in law, especially in the law of evidence. Justice K.S. Puttaswamy vs Union of India,[1](also referred as a right to privacy judgement) has now created new opportunities for exploring the scope of section 5 of Indian Evidence Act, 1872. With the “right to privacy” being included as a fundamental right, I will be analysing the possible impact of the invocation of the doctrine in the Indian jurisprudence. I will be discussing the Rule of admissibility of illegally obtained evidence in the U.S.A., U.K. and India along with other common law jurisprudence.

Exclusionary rule in the US

• The exclusionary rule is enshrined in the fourth amendment of the American Constitution.[2]
• In the USA the evidence is not admissible if it was obtained in an unlawful search of his/her property, such search conducted or abetted by persons under the authority of United States. In addition to this, all the information which is obtained by such illegal search is also inadmissible.[3]
• All the pieces of evidence which are collected in breach of the Fourth amendment are rejected as the concept of “Fruit of the poisonous tree” is applicable.[4]
• It means that if the “tree”( evidence) is tainted then the fruit is also affected.[5]
• Fruit, the evidence is product of an illegal, the poisonous tree. The principle was laid down in Nardone v. United States.[6]
• This principle has some exceptions as well. The exclusionary rule does not apply to the third person.[7]
• The rule is not valid when the evidence was obtained by a private individual instead of from state official.[8]

One of the landmark decision based on the exclusionary rule is Boyd v. United States,[9] in this case, customs officers seized petitioner’s glass plates in suspicion that the documents related to these objects were falsified to evade customs duties. The petitioner was asked to produce the documents related to these disputed articles. The issue before the court was whether the production of person’s private papers to be used as an evidence against him in the trial, constitute unreasonable search and seizure within the fourth amendment. The evidence were excluded and court laid down a principle that all intrusion from the part of the government or its employee will constitute the breach of personal security, personal liberty and private property.[10] Another landmark judgement is Katz v United States,[11]In this case, Katz’s (a gambler) activities were monitored by FBI by recording his telephonic conversations through an electronic device attached to the telephone booth which were later used against him. The constitutional issue before the court was whether the fourth amendment will be applicable to the intangible areas like conversations overheard by others. It was ruled that eavesdropping by the FBI constituted a breach of the fourth amendment and exclusionary principle was applied, it will be considered as ‘search and seizure’ under the fourth amendment, the scope of seizure was extended to oral statements. Until Katz, the fourth amendment was limited to trespass on private location which was now extended protection from ‘places’ to ‘people’.[12]  These cases can be perceived as the examples of the interrelation between right to privacy and exclusionary principle. These cases were also discussed in Puttaswamy.

The rule in The United Kingdom

• In R. v. Leatham,[13] defendant objected against the production of the letter against him which was obtained through his answers given to the commissioners during an enquiry. But the defendant contended that such answers should not be admissible as provided the “Corrupt Practises Act”.
• Queen’s Bench held that though the answers won’t be used against the defendant if the clue is given for other evidence, The letters in the instant case which will prove the case, then answers were admissible.[14] Crompton J., famously said:“ It matters not how you get it, if you steal it even, it would be admissible in evidence.”[15].
• Kuruma v. Queen,[16]laid down the precedent that the only condition that is necessary for admissibility of evidence was its relevance to the issue. This is one of the famous principles of the English case laws. In addition to that, it also held that the evidence should be excluded if it is opposed to the fairness to the accused. So, here it is clear that though pieces of evidence obtained through improper techniques are admissible, the court still has the discretion to reject them.
• The above rule is also known as “The Unfair Operation Rule”.[17] Though the rule is not applicable to some instances like tricks as evidence is admissible even if it is obtained via trick or misrepresentation.[18]

The common law rule of Unfair Operation was later crystallised as a codified law. In U.K., evidence may be excluded by the court under section 78 of Police and Criminal Evidence Act 1984(PACE). It explicitly prohibits the evidence if it affects the notion of fairness of the proceedings with the enactment of the Human rights Act, 1998, based on European Convention the courts deterred the courts to allow illegally obtained evidence to comply with the European Convention on Human Rights.[19]

Rule of relevance in India

• The only criteria regarding the admissibility of evidence in the Indian court of law is “relevance”.[20]
• Though illegally obtained evidence is admissible, the value of such evidence may be affected as it was ruled that improperly obtained evidence will be analysed with due caution by the court.[21]
• Supreme court of India has explicitly held that there is no construction of fundamental rights in the constitution which can be construed in a manner so as to exclude the evidence obtained in an illegal search.[22]
• The most interesting thing to note here is that the Indian judiciary has referred to such case laws, in this particular case, which is now no longer used or applicable in England.[23]

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In India, State of Baldev Singh,[24] came close to an exclusionary rule akin to the U.S.A. In this case, the issue was should the evidence obtained in breach of Section 50 of the NDPS Act admissible. It was said in the judgement that Section 50 grants the accused certain procedural safeguards, a right is created which creates an obligation on the police officer to follow such procedures. Here, illegally obtained evidence was rejected. But the ratio is limited to the cases under NDPS act.

In countries like India, Myanmar and Sri Lanka, the rule of admissibility is governed by statutory provisions.[25] The statutes relating to evidence of these countries are based on Indian evidence Act, 1872, which was modelled by Sir Fitzjames Stephen.[26]

With the enactments in place, all the previous laws which are against the code are overruled. One cannot simply import ideas from other jurisprudence regarding the principle governing evidence based on public policy. The legislature has the power to formulate laws and until then the rule of the land, once created, remains the same.[27]

Karalina v. Excise Inspector. Matara,[28] a case law from erstwhile Ceylon, a comparable jurisdiction to India, has stated that the legislature can alone decide on the issue of the admissibility of illegally obtained evidence.

Analysis

Puttaswamy has ruled that the right to privacy is a fundamental right under Article 21 of Indian Constitution.  This right is enforceable against the state subject to reasonable restrictions. With the invocation of privacy as a fundamental right under Section 21 of the Indian constitution, the admissibility of illegally obtained evidence should now be questioned. The position of law has changed as unlike the reasoning is given in Pooran Mal,[29] now we can interpret Article 21 of the constitution to exclude the evidence obtained in an improper manner under Section 5 of Indian Evidence Act. No statute should contradict the fundamental rights enshrined in the nation’s constitution. If we consider the example of Baldev Singh[30] the case, then we will need to enact a statute that prohibits all the illegally obtained evidence. Or else with the privacy judgement in place, I think we should read section 5 of the Act with Article 20, which prohibits self-incrimination and Article 21(right to privacy). This will allow for the exclusion of illegally obtained evidence. In my opinion is better to follow the latter option as the former may take considerable time due to our slow law-making process.

There are four principles which are based on which illegally obtained pieces of evidence should not be accepted. The four principles are reliability principle, disciplinary principle, protective principle and judicial integrity principle.[31]According to Reliability Principle, the evidence is admitted based reliability but if evidence obtained through torture, violence or under pressure might not be reliable. “Disciplinary Principle” states that Judiciary should discourage the improper manners used for obtaining evidence. This will deter the prosecution or defendant from resorting to such manners for getting pieces of evidence. “Protective principle” follows the idea that exclusion of illegally obtained evidence is one of the remedies to the person against whom the evidence was obtained with the breach of individual’s right. “Judiciary Integrity Principle” is based on the idea that to maintain respect for the administration of justice, the court should be careful while admitting illegally obtained evidence as by allowing such shreds of evidence, courts are promoting the improper methods of procuring evidence.[32] In light of the above principle, In my opinion, illegally obtained evidence should be made inadmissible.

Conclusion

Admissibility of shreds of evidence obtained via illegal methods is an issue of a long debate. Judiciary U.S.A. settled its position with amending the constitution. On the other hand, U.K. enacted a statute codifying the rule of “The Unfair Operation Principle”. But the position remains unsettled in countries like India and Sri Lanka as the evidence is inadmissible in the cases where a statute explicitly prohibits such practice. One can hope a change in future with the Right to privacy as it may help in shaping the debate in India.

References

[1] Justice K.S. Puttaswamy (Retd.) v. Union of India, 1 SCALE 10 2017.

[2] “The right of the people to be secure in their persons. houses, papers and

effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Constitution of the United States of America, 1789.

[3] Joe H.; Larkin Munster, Murl A. Military Evidence

(1959).

[4] Brewer v. Williams, 97 S.Ct. 1232 (1977).

[5]Fruit of a Poisonous tree, CornellLawSchool.com, Accessed on April 25, 2018. https://www.law.cornell.edu/wex/fruit_of_the_poisonous_tree

[6] Nardone v. United States, 308 U.S. 338 (1939).

[7] Lefkowitz v. United States Attorney, 52 F . 2d(2d Cir. 1931)

[8] Burdeau v. McDowell, 256 U.S. 465(1921).

[9]Boyd v. United States, 116 US 616 (1886).

[10] Justice K.S. Puttaswamy (Retd.) v. Union of India, 1 SCALE 10 2017.

[11] Katz v United States, 389 US 347 (1967).

[12]Justice K.S. Puttaswamy (Retd.) v. Union of India, 1 SCALE 10 2017.

[13]R. V. Leathem 8 Cox Cc 498,501 (1861).

[14] R. V. Leathem 8 Cox Cc 498,501 (1861).

[15] R. V. Leathem 8 Cox Cc 498,501 (1861).

[16] Kuruma v. Queen, AC 197 (1955).

[17] Gautam, Khagesh. “The Unfair Operation Principle and the Exclusionary Rule: On the Admissibility of Illegally Obtained Evidence in Criminal Trials in India.” Indiana International & Comparative Law Review 27, no. 2 (2017): 147. Accessed April 19, 2018.

[18] R v Sang, AC 402 (1980).

[19]Talha Abdul Rahman,. “Fruit of the Poisoned Tree: Should Illegally Obtained Evidence Be Admissible?” S-38, PL, no. May (2011). Accessed April 7, 2018. http://www.supremecourtcases.com/index2.php?option=com_content&itemid=5&do_pdf=1&id=20972.

[20] Indian Evidence Act, Section 5, 1872.

[21] R.M. Malkani v. State of Maharashtra A.I.R. S.C. 157 (1973)

[22] Pooran Mal Etc vs Director Of Inspection of Income Tax 2, SCR 704 (1974).

[23] Rahman, ” Fruit of the Poisoned Tree: Should Illegally Obtained Evidence Be Admissible?” 1.

[24] Baldev Singh, 6 S.C.C. (1999).

[25] G. L. Peiris, “The Admissibility of Evidence Obtained Illegally: A Comparative Analysis.” Ottawa L. Rev. 13, no. 309 (1981). Accessed April 15, 2018. http://heinonline.org/HOL/Page?handle=hein.journals/ottlr13&collection=journals&id=315&startid=&endid=350.

[26] Peiris, The Admissibility of Evidence Obtained

Illegally: A Comparative Analysis, 313.

[27] Janson v. Driefontein Consol. Mines Ltd., A.C. 484 (1902)

[28] Karalina v. Excise Inspector. Matara,  52 C.L.R. 89 (1950).

[29] Pooran Mal Etc vs Director Of Inspection of Income Tax 2, SCR 704 (1974).

[30] Rahman, “ Fruit of the Poisoned Tree: Should Illegally Obtained Evidence Be Admissible?” 2.

[31] Rahman, “ Fruit of the Poisoned Tree: Should Illegally Obtained Evidence Be Admissible?” 2.

[32] Rahman, “ Fruit of the Poisoned Tree: Should Illegally Obtained Evidence Be Admissible?” 2.