This article is written by Seep Gupta, from the Institute of Law, Jiwaji University. This is an exhaustive article which deals with the illegal acquisition of evidence and the violation of constitutional rights.
Table of Contents
Introduction
Many times during the investigation of any criminal cases, States and their functionaries become over-excited and use illegal methods to declare a person as a culprit. There are many times where evidence acquired by the police through illegal means, a piece of evidence can be admissible in a court but it can be acquired in an illegal manner by the police. Indian Evidence Act 1872 does not give the answer to this question. Now, the question arises that whether the evidence which is obtained by the illegal manner such as by violating the basic human and fundamental rights, by eavesdropping, illegal search of a person’s property who is in the custody, by luring him or by giving him a lucrative offer so that he will vomit the truth should be admissible in court?
According to the reports of the National Crime Record Bureau, between the years 2010 and 2015, approximately 591 people died in police custody. However, police claim most of these died as a consequence of natural circumstances and suicidal tendencies. But, the statistics are rather shocking. Many people in custody die because of the illegal and inhuman treatment by the police.
This article seeks to cover the constitutional aspects of the illegal acquisition of the evidence in the view of human rights violations.
What all is included under the Illegal acquisition of evidence?
Section 5 of the Indian Evidence Act 1872 describes the relevancy of the facts i.e. what facts are relevant in the court proceedings, but nowhere in the section, it is given what will be the state of the evidence that is acquired through illegal means. The general tendency of the Supreme Court is to focus more on the relevancy of the facts that are admissible in the court rather than focusing on the medium or way by which they are acquired.
The method and way of acquisition of the evidence do not affect its admissibility in a court. Judiciary generally admits illegally acquired evidence with some of the exceptions such as where the accused has been prejudiced by the law enforcement officers but such evidence should be taken by care and caution.
Police officers and State functionaries use many non-human and illegal ways for acquiring the evidence. These are illegal searching which includes inappropriate searching of the body and house property through eavesdropping, tapping the phone of the person in the custody, string operation, voice tape recordings, the intentional use of personal photographs, by using footages of CCTV camera in an unauthorized way and many other degrading ways of acquiring evidence which is illegal per se.
Purpose behind excluding Illegally obtained evidence
‘Fruits of the poisonous tree’ also create similar venomous effects such as food poisoning or death because the poison has been transferred from the parent tree to the fruits. If this similar example is taken into account of the admissibility of the facts then it is a well-defined principle under the Indian Evidence Act 1872 that the admissibility of evidence does not depend on the medium through which it is obtained but rather on the relevancy of the facts.
The Doctrine of ‘Fruits of the poisonous tree’ does not have any application in the Indian Law. It is based on the protection offered by the fourth amendment of the United States Constitution. It is coined by the Justice Frankfurter of the United States of America. It generally means that no evidence is admissible if it is obtained illegally. But, recently the Law Commission of India in its 94th report added Section 166A in the Indian Evidence Act 1872.
The acquisition of evidence is within the discretion of the judiciary and it should be practised in a judicial and-arbitrary manner. The acquisition of evidence in an illegal manner violates the basic fundamental rights such as the right to life and the right to equality. Recently, the right to privacy has been inserted within the right to life through Puttaswamy judgment and fundamental rights are Magna Carta in India. It gives soul to the constitution. They are an intrinsic part of the Indian Constitution.
The main purpose of excluding the illegally acquired evidence is to protect the fundamental rights of the accused. The fundamental rights of the citizens should be protected at all costs. However, illegally obtained evidence will not be directly admitted or refused by the court rather it depends on the judicial discretionary power of the court.
Rationales of exclusionary rules
The Exclusionary rule is a legal rule which is given in the United States Constitution. This rule is based on the principle of the constitutional law that prevents the evidence which is obtained or acquired through illegal manner to be used in the court. This is based on the sole principle to preserve the constitutional right of the accused. It sometimes directly follows the Fifth Amendment of the United States Constitution that commands that “No person shall be deprived of life and liberty except with the due process of the law”. Its main aim is to protect the integrity of the criminal justice system.
There are many rationales and logical arguments in the support of the exclusionary rule. The first one is the exclusionary rule removed the obstacle in the way of seeking justice by declaring illegally obtained evidence as invalid in the court of law. It eases the court way of finding the truth by eliminating all the negative aspects and invalid evidence.
Another rationale is the exclusionary rule helps in maintaining and preserving the dignity and integrity of the court by excluding the illegally acquired evidence. Another logical argument in the favour of the exclusionary rule that it deters the law enforcement officers from conducting an illegal search and seizure and it provides remedies to the defendants whose rights have been violated. So, this exclusionary rule also acts as the protector of fundamental rights of the citizens.
Type of rights violated
Illegal acquisition of evidence violates the basic fundamental and human rights of a person. Illegal search, eavesdropping, and other illegal ways of acquiring evidence in an over-enthusiastic manner certainly violate the basic fundamental rights.
Fundamental rights that are mentioned in part III of the Indian constitution are the intrinsic and basic rights that every citizen has. Illegal acquiring of evidence violates human rights, constitutional and fundamental rights. Every evidence must be free from tampering and should not be unfair to the accused which can illegally be used against him. Every person is innocent until proven guilty.
Illegal ways of acquiring evidence are a huge obstacle to ineffective ways of seeking justice. It not only violates the basic rights of an accused but it also creates a certain prejudice against the accused. Thus, the illegal acquisition of justice should not be admissible in courts.
Exception of good faith
Nowadays with the advent of the new technology, law enforcement officers or state authorities acquire evidence from the personal mobile data, smartphones, social media accounts, internet service providers, and many other personal sources. The Supreme Court of the United States of America held that the evidence which is acquired illegally is admissible in the court and the government can use it if it is acquired in good faith. This is the exception to the doctrine of Exclusionary rules.
If the officers think they are acting rationally and reasonably and according to the legal provisions, then they can rely on a search warrant, and later if that evidence is found to be illegally acquired, the Supreme Court can admit it if it is in good faith. It’s up to the law enforcement officers to prove that they were acting in a reasonable manner during the acquisition of the evidence.
This exception of good faith will not be applicable in the Indian context because in the Indian judiciary it does not matter as to how the evidence was acquired. The Indian Evidence Act 1872, mainly works on the relevancy of facts.
Arizona v.Evans is one of the major case laws in this case, as in this case, the police acted in a reasonable manner but the evidence later turned out to be legally defective.
Acting in good faith is one of the major exceptions to the exclusionary rule.
Admissibility of illegally obtained evidence in a civil case
The rule excluding the illegally acquired evidence through illegal search and seizure mostly applies to the criminal proceedings. However, the exclusionary rules or the admissibility of illegally acquired evidence through illegal search and seizure are generally admissible in the civil court. Exclusionary rules generally do not apply to civil cases or proceedings.
Civil cases are not against the state rather it is between two private individuals since the liability in civil matters is not in the form of punishment or criminal liability it is in the form of unliquidated fines or damages.
The only exclusive remedy in case of civil cases damages in the form of fine and money against the defendant or wrong-doer, so this only remedy even if it is illegally acquired should not be shunned by the court if it is material and relevant.
In the case law, Lebel vs. Swincicki, the plaintiff tried to establish the drunkenness and intoxication of the defendant by taking the blood sample of the defendant when he was in an unconscious state. It was the civil case for wrongful death. The court held that this is the clear violation of the defendant’s human rights and basic constitutional rights but later the evidence was admitted as it is the only conclusive proof of the defendant’s negligence. So an illegal way of acquisition of evidence does not have much of an effect in the civil proceedings.
When illegally obtained evidence can be used against someone
Generally, illegally acquired evidence cannot be used by the court. But there are some situations or circumstances where illegally acquired evidence can be used against someone. When the court and judge believe that the state functionaries and law enforcement officers have acted in a good belief and a reasonable manner, then in these cases illegally acquired evidence can be used by the court. This was held by the United States Supreme Court.
The general rule of excluding the illegally acquired evidence by illegal search and seizure is to deter police misconduct and to prevent injustice. The aim of the exclusionary rule is not to shun or reject any material evidence collected by the police according to the legal provisions.
Upholding judicial integrity
The exclusionary rule helps in preserving and upholding the judicial integrity of criminal justice. It deters or prevents the gross miscarriage of justice by excluding all the illegally acquired evidence. It is a rational assumption that the court will itself tarnish its reputation if it will admit the evidence that is acquired in an illegal manner. Courts thus exclude all the illegally acquired evidence so as to maintain the judicial decorum and to maintain the confidence and faith of the judiciary in the general public that it does not support the illegal acts by its governmental agents. Thus, by shunning all the illegally acquired evidence the court reaffirms the rule of law and maintains its ethics.
The public may lose their faith in justice and in the proceedings of the court if the court will rely upon the illegally acquired evidence and fails to admit the crucial and relevant evidence that will bring the culprit to the hook. It is the duty and the responsibility of the court to maintain its systematic integrity.
On the other hand, a court should initiate a probe into the illegal misconduct, search and seizure, and illegal patterns or misconduct that are used for the illegal acquisition of the evidence.
Dissuading misconduct by the police
In most criminal cases or proceedings, the majority of search and seizure is conducted by law enforcement officers. It is noticeable that often police officers opt illegal ways and methods to acquire evidence. These brutally and severely affect the integrity of the court. Thus, exclusion of the illegally acquired evidence is to deter police misconduct.
Exclusion of the evidence obtained in an illegal manner, compels the police to work in an effective manner, and use legalized ways to obtain the evidence. It will encourage law enforcement officers to opt for legalized ways and conduct the search on the legal provisions and guidelines. The principle of deterrence can only work if police officers know the forensic rate of the individual criminals and second is they care about their fate.
Violation of the constitutional rights
In the landmark judgment of Justice K.S. Puttaswamy vs. Union of India dated 26th September 2018, it is clearly defined that, Right to privacy is an important aspect of the right to life and it should be included as the subpart of Article 21 of the Indian Constitution. Illegal acquisition of evidence violates basic constitutional rights.
According to the Supreme Court of India, obtaining illegal evidence through tape recordings and photographs violate Article 20(3) and Article 21 of the Indian constitution which says about self-incrimination and right to life respectively.
But, this illegally acquired evidence does not bar the admissibility of evidence as the Indian Evidence Act 1872 focuses more on the relevancy of the fact.
In Selvi vs. the State of Karnataka, it is given that lie detector tests, narco-analysis and brain mapping violate Article 21 i.e. Right to Life under the Indian constitution. This case made a clear distinction between illegally obtained evidence and unconstitutionally obtained evidence. Unconstitutionally obtained evidence is inadmissible while illegally acquired evidence is admissible if relevant.
Evidence obtained in the breach of the fundamental rights cannot be used against the person. The court declared this and cited the Puttaswamy judgment.
Composition of human rights
The illegal acquisition of evidence like illegal use of personal photographs, illegal search, and seizure, gaining of personal mobile data and internet data also violate a person’s basic human rights which should be protected at every cost.
Conclusion
Illegal acquisition of evidence violates the basic and constitutional rights. There is not any provision of any law that deals with the admission of illegal acquisition of evidence as the USA has the exclusion rule. It’s high time that the Indian judiciary should also include such provisions so as to preserve and uphold the integrity of the judicial justice of the court.
References
- https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=3519&context=wlulr
- https://link.springer.com/chapter/10.1007/978-3-030-12520-2_8
- https://www.wsj.com/articles/in-digital-age-defendants-can-lose-even-when-they-win-1519747467
- https://economictimes.indiatimes.com/blogs/et-commentary/every-evidence-is-good/
- https://www.business-standard.com/article/pti-stories/genuine-evidence-procured-by-illegal-means-is-admissible-sc-113090600864_1.html
- https://www.hrw.org/report/2016/12/19/bound-brotherhood/indias-failure-end-killings-police-custody
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
