This article is written by Ms. Kishita Gupta from the United world School of Law, Karnavati University, Gandhinagar. This article analyzes the admissibility of illegally obtained evidence in light of the doctrine of the fruit of the poisonous tree.
In a criminal trial, this paper examines the legal position on the exclusion of evidence gathered unlawfully or incorrectly. The Supreme Court’s declaration of the right to privacy as a fundamental right clash with the acceptance of illegally obtained evidence in India. In reality, unlike other jurisdictions, Indian courts have repeatedly allowed illegally obtained evidence to be used in criminal trials. In the absence of a particular statutory or constitutional provision providing for such exclusion, Indian courts have taken the position that the fact that evidence was obtained illegally has no bearing on its admissibility in criminal prosecution.
In view of the right to privacy being recognized as a fundamental right under Article 21 of the Constitution of India, this article proposes revisiting the recommendations of the 94th Law Commission Report, 1983. To accomplish so, this study will examine the existing state of the law as proposed by the judiciary, as well as the reasoning behind such statements. The author will then study the 1983 Report’s analysis and assess whether or not the suggestions made at the time are still applicable now. The implications of the right to privacy on this area of evidence law have also been examined in Justice K.S. Puttaswamy v. Union of India (2018).
Historical evolution of the doctrine
It’s a legal metaphor in the US criminal justice system that prevents evidence (fruit) obtained through illegal arrests, seizures, or coercion from being admitted (poisonous tree). Boyd v. The United States (1886) was the first case to establish this doctrine, in which the illegal confiscation of the party’s property was found to be in violation of the 4th and 5th amendment rights. The phrase was coined by J. Frankfurter in the case of Nardone v. the United States (1939), in which the court overturned the convictions because the evidence was obtained in a manner that violated the Communications Act of 1934, and thus a substantial case against the accused was a “fruit of the poisonous tree.”
Since then, the idea has been repeatedly invoked, particularly in the case of Weeks v. United States (1914), which clarified the principle of ‘every man’s house is his castle,’ holding that digging through his papers and books while he is not present is a clear violation of his 4th amendment rights.
This philosophy is diametrically opposed to the exclusionary principle practised in India and the United States. Consider a situation in which police officers hear about the presence of narcotics at a specific location from a witness they were aware of due to a statement made during an illegal arrest. While the statement itself would be inadmissible in the prosecution’s case, the fruits of the statement, namely the drugs, would be as well. The Supreme Court excluded all evidence arising from the wrongful arrest in the Wong Sun v. United States (1963) case because of this precise factual matrix.
The current issue stems from the criminal justice paradigm that a society can use to investigate and punish criminals. The Crime Control Model and the Due Process Model are two such models. The crime control model focuses on the “reliability of the fact-finding process,” whereas the due process model focuses on the “repression of criminal conduct.” According to the due process concept, the state prosecutes the accused for breaking the law of the land, and as a result, it is unable to break the laws it is sworn to maintain. As a result, under the due process concept, any evidence collected illegally cannot be considered.
The legal logic behind these decisions was straightforward: the 4th Amendment’s right to privacy cannot be violated. The use of excessive force by police/law officials must be discouraged in order to protect citizens’ constitutional rights. ‘It is a lesser evil than some criminals escape because the Government plays an ignoble part here’ J. Holmes argued. Today, however, the theory has evolved into a philosophy aimed at deterring police wrongdoing rather than protecting individuals’ rights. This paper will look into the significance of this philosophy and how it has been adapted in the Indian setting.
The Unfair Operation Principle has been favoured by English courts in the past, with R v. Leatham (1861) serving as an example. This was a case involving claims of corrupt practices that were heard by a Commission established under the 1854 Corrupt Practices Prevention Act. The agent produced a letter written by the individual suspected of bribery to his agent. The secretary of the Commission was summoned and produced this letter when new information was filed. An objection was brought to the letter’s admissibility because it was found as a result of an inadmissible statement made by the accused.
Admissibility position in common law countries
In common law countries, the legal stance on the admissibility of illegally and improperly obtained evidence in a criminal prosecution can be split into four types:
- First, certain countries take the most stringent approach, where illicit evidence collection does not render evidence legally inadmissible in the absence of a specific statutory or constitutional restriction.
- Second, where the use of illegally or improperly obtained evidence is deemed relevant, the court may consider itself justified in rejecting such evidence at its discretion.
- Third, where evidence obtained in violation of a substantive standard is excluded due to a specific statutory restriction.
- The fourth group includes countries where a constitutional guarantee prevents certain evidence from being used in court (for example the Fourth and Fourteenth Amendments in the case of the United States).
Scenario in India
India’s shift towards a consequentialist approach
In the absence of any statutory or constitutional provision that would exclude illegally obtained evidence, the impropriety of the evidence does not render it inadmissible. India belongs to the first category of common law nations mentioned above, which have taken the strictest approach to take evidence. The Indian Evidence Act, 1872, like many other statutes, has a whole chapter dedicated to the relevancy of facts, which states that the key criterion for evaluating the acceptance of evidence in Indian courts is its relevance. As a result, as things stand now, the source does not take precedence.
Indian courts took a different approach than the USA and UK to this legal dispute at first and did not follow R v. Leathem’s judgment. The Supreme Court concluded in Ukha Kolhe v. State of Maharashtra (1963) that the legislative intent necessitated that proper procedures be followed when gathering evidence.
However, in R. M. Malkani v. State of Maharashtra (1972) and Pooran Mal v. Director of Income Tax (Investigation), New Delhi (1973), Indian courts took a different stance and accepted the use of the Unfair Operation Principle. It is crucial to emphasize, however, that such rulings were made when India did not recognize the right to privacy.
It was held in the State of M.P. v. Paltan Mallah (2005) that “evidence collected under illegal search could nevertheless be allowed in evidence, provided there is no express statutory breach or violation of constitutional principles. The general provisions specified in the Criminal Procedure Code are to be viewed as guidelines,” the court said, “and if there is any small breach, the court can nevertheless accept the evidence, and the courts have discretionary power to accept or reject it.”
It is apparent that even if a piece of evidence was obtained through unethical or unlawful means, its admission is unaffected if it is otherwise important and its genuineness is established. In India, courts have taken this position. It makes little difference how the evidence was gathered if it is acceptable. The goals outweigh the means. This consequentialist viewpoint is really concerning. The dread of letting the guilty escape on a technicality appears to be overpowering in Indian courts. However, by doing so, the courts have established a very hazardous precedent, and there is no longer any incentive for police personnel to follow much less enhanced legal procedures.
India’s departure from the consequentialist approach
However, in other situations, courts have dismissed illegally obtained evidence if the tight requirements of admissibility would be unfair to the accused. In the case of Umesh Kumar v. State of A.P. (2013), the court opined that even if a document was obtained through unethical or illegal means, its admission is unaffected provided, it is important and its authenticity can be demonstrated. It makes little difference how the evidence was gathered if it is acceptable. What’s more, the court went on to say: “However, as a matter of prudence, the court may refuse specific evidence in a criminal proceeding in the exercise of its discretion if the rigid criteria of admissibility would work unfairly against the accused. More importantly, the court must determine that it is authentic and devoid of manipulation or mutilation.” The term ‘unfairly’ here denotes the ‘Unfair Operation Principle’ which is largely inspired by the United Kingdom laws. The principle allows courts the authority to judge on a case-by-case basis what evidence would be fair or unjust to the accused and to exclude such evidence in suitable instances.
In Selvi v. State of Karnataka (2010), the Supreme Court noted that relying on “short-cuts” would damage “the diligence required for completing meaningful investigations” while reviewing the constitutionality of specific tests such as polygraph and narco analysis. A similar worry was highlighted in the case of Baldev Singh, in which the court stated that the “legitimacy of the judicial process” could be called into question if the court was seen to condone “acts of lawlessness” by investigating authorities. They had also examined the impact that such a concession would have on the administration of justice, which they believed to be illegal. Admitting evidence obtained unlawfully would provide the investigating agency complete immunity. Furthermore, a possible greater conviction rate may encourage them to use illegal evidence collection tactics.
The Supreme Court stated in State (NCT of Delhi) v. Navjot Sandhu @ Afzal Guru (2005) that the question of admissibility of an illegally intercepted telephone conversation was no longer res Integra (a case or a question that has not been examined or passed upon), observing that a tape-recording of a relevant conversation is a relevant fact and thus admissible under Section 7 of the Indian Evidence Act, 1872. It’s worth noting that in People’ Union for Civil Liberties (PUCL) v. Union of India (1997), the Supreme Court declared that phone tapping violated the right to privacy and established guidelines for the use of governmental monitoring. Despite this, the court did not rule on the evidence exclusionary rule based on the legality of the techniques used to get it.
Right to privacy as a fundamental right
The situation has since altered, with a Constitutional Bench recognizing the Right to Privacy as a fundamental right in 2018 under Article 21 of the Constitution of India. This means that no constitutional provision prohibiting the admission of illegally obtained evidence can be alleged. Furthermore, the philosophy followed by the Indian criminal justice system must not violate the right to privacy, or it will be declared illegal. As a result, the Supreme Court’s decision in M.P. Sharma vs Satish Chandra (1954), which found that the United States Fourth Amendment could not be incorporated into the Constitution’s provision against self-incrimination, was overturned. The court also overturned several decisions that held opposing viewpoints, such as Kharak Singh vs the State of UP (1964), which was cited in the R.M. Malkani case.
With the right to privacy’s broad scope and frequent references to the United States Fourth Amendment, it’s plausible to presume that there is an “expectation against arbitrary search and seizure” within the right to privacy. However, evidence collected inadvertently through an illegal search would be tainted, as it would be a violation of a fundamental right guaranteed by Part III of the Constitution. The standard of justness, fairness, and reasonability will be used by the court in determining the validity of such infringements.
The law would have to have a legitimate aim, provide procedural safeguards against abuse, be proportionate, required, and only infringe on the right to the bare minimum. As a result, in order for the State to continue using relevance as the sole criterion for admissibility, the above-mentioned standard must be met at this time. In the absence of future legislation, this decision would leave it up to the courts to strike a balance between a well-known legal question and a violation of a fundamental right without any “process defined by law.” Therefore, the assertion of the right to privacy creates a gaping void in evidence and constitutional law, requiring legislative and judicial intervention.
In Vinit Kumar v. CBI (2019), the Bombay High Court went a step further in recognizing the right to privacy as an inherent fundamental right, setting aside some interception orders and ordering the deletion of copies of intercepted messages. The question was whether the orders directing telephone call interception were illegal under Section 5(2) of the Telegraph Act of 1885 and the Rules and if they violated the petitioner’s fundamental rights. The Bombay High Court decision is, without a doubt, very welcome, however, its ability to be applied broadly in future cases is uncertain, given that the Telegraph Act’s guidelines clearly authorize the deletion of illegally obtained evidence. Evidence collected illegally in other procedures, where no particular provision for destruction or exclusion exists, is nevertheless likely to be deemed admissible, and the basic rule remains: “even if the evidence is obtained illegally, it is admissible.”
Examining those principles, the bench considering the Rafale review petitions in Yashwant Sinha vs CBI (2019) properly stated that it can no longer reject evidence presented to it because it may be significant to the larger public interest. In fact, given the claims in the review petitions, and the fact that the Supreme Court previously accepted the contents of the sealed cover at face value, the court is justified to wish to analyze all of the material offered in order to establish the truth.
Recommendations of the 94th Law Commission Report
The Law Commission of India’s endeavour to explore legal theory and submit its recommendations from its 94th report was motivated by the relevance of the subject matter from a human rights perspective and the widening reach of Article 21 of the Indian Constitution. The Report expressly rejects the notion that alternative remedies available to an accused in the event of an illegal search and seizure are adequate; it believes that the practical difficulties faced by a victim of such a search in pursuing sanctions effectively, as well as the slowness with which disciplinary actions are carried out, should not be overlooked. Furthermore, the report claims that deterrence is one of the justifications in favour of the exclusionary rule. The deterrence argument basically states that the exclusion of evidence is sufficient to dissuade improper evidence collection.
However, as the Commission correctly points out, such a determination will always be a matter of opinion; however, there should be a presumption in favor of the efficacy of judicially enforceable sanctions against illicit evidence acquisition. Another point examined by the Report is that of the legal process’ purity; there is a need to ensure that the wrongdoer is denied the reward of his crime.
With regard to Wigmore’s opposing viewpoint, that the court does not condone the illegality but simply overlooks it, the Report critiques the fact that when the court admits such evidence, it not only ignores but also implicitly implicates itself in the illegality of the search and of such evidence. It has reached the point where the court has become a participant in the procedure, demonstrating a disregard for the judicial process.
The Commission examined the reasons against the exclusionary rule before making a recommendation. These are primarily the court’s concerns about getting to the truth and that the illegal acquisition of evidence is a side issue that has no bearing on the evidence’s logical relevance. Furthermore, there are claims that other sanctions and remedies exist that would constitute a reasonable deterrent to a person’s criminal activities. Finally, the study concludes that denying a party the use of such evidence when they were not implicated in the violation would be a severe injustice.
These arguments are pitted against the rule’s supporters on a fundamental level. While proponents of the exclusionary rule emphasize the rights of the victims of such searches and a holistic view of justice, opponents of the rule emphasize the court’s goal of discovering the truth and the rights of the accused crime victim. To put the two arguments in the most basic terms, arguments in favor of the exclusionary rule are those in which the ends do not justify the means, and arguments against such a rule are those in which the ends do justify the means.
Due to a lack of direct authority on the matter, the Commission determined that excluding the inclusion of illicit evidence on a constitutional foundation based on Article 21 was a question that could not be answered at the time of the Report. As a result, the recommendations must be interpreted in light of the judicial pronouncements of the time, namely M.P. Sharma and Kharak Singh, that there was no fundamental right to privacy under the Indian Constitution, and that a corresponding provision, such as the Fourth Amendment, was therefore unnecessary.
The Commission stated, “There is little doubt that this topic will emerge in courts sometime, and when it does, the courts will be called upon to make a tough choice, but they will have a variety of models available for concrete consideration.”
The Commission found in its report that the current legal situation requires revision. This was because it was believed that the current Indian perspective had a key flaw in that it reflects a legalistic approach that would completely exclude any consideration of deeper human values. As a result, the court should be given the authority to consider all of these factors that are fundamental to the administration of justice. As a result, the Report suggested that Section 166A should be added to the Indian Evidence Act.
The proposed Section 166A gives the court the authority to refuse to admit anything in evidence that was obtained illegally or by improper means if the court believes that the admission will bring the administration of justice into contempt due to the nature of the means by which it was obtained. Furthermore, the Section advises that the court consider the circumstances surrounding the proceeding before accepting or refusing such evidence.
These conditions would include whether human dignity was violated during evidence collection, the gravity of the case, the significance of the evidence, whether there were circumstances justifying such action, and so on. As a result, the Commission intended to provide judges discretion in this clause in order to prevent circumstances where the illegality is so shocking and offensive that the judiciary would prefer to dismiss the evidence. This review of the Indian position and attempt at change is set against a backdrop of judicial rulings that have ruled that the right to privacy and any constitutional safeguards against such searches and seizures are unconstitutional. So here, the position set forth by the Puttaswamy judgment, as discussed above, needs to be kept in mind.
Exceptions to the exclusionary rule
Just like any other criminal law rule, this exclusionary rule also has certain exceptions that may be applied. These are as follows:
- Use of unlawfully obtained evidence not to prove guilt, but to impeach the accused’s credibility if he or she chooses to testify;
- Inevitable discovery: Under this exemption, something that the police would have inevitably discovered even if the illegal search/seizure/method had not been used is considered admissible.
- Good faith: An officer who performs a search under the impression that he or she is permitted by law, such as when he or she believes a warrant has been issued but is later withdrawn, is considered to have acted in good faith, and any discovery is held admissible in court. The Supreme Court created this exception in the United States v. Leon (1984) because, according to the majority opinion, the rule was intended to deter police misconduct, and excluding evidence when the officers did not actually misbehave would not deter police misconduct and would only result in vital evidence being discarded with no redeeming value.
- Independent source: Evidence collected by an independent source or a third party through illicit means, at least in part, and not from a tainted source. Someone who is completely unconnected to the illegality of the arrest, search, and/or seizure must serve as an independent source.
- Attenuation. Even though an illegal search set in motion a chain of events that led to evidence being exposed, the evidence is admissible if the link between the illegal search and legally admissible evidence is tenuous. In other words, evidence can be included unless it can be demonstrated that it arose directly from some criminal conduct committed by law enforcement officials. A three-part test was developed for this exemption in People v. Martinez (1975):
- The time interval between the illegal arrest and the succeeding confession or consensual search;
- The presence of intervening elements or events; and
- The aim and flagrancy of the official misconduct.
The need for adopting this doctrine
The following are four concepts that explain why evidence obtained by atrocious means should not be admitted: The first is the dependability principle, which requires that evidence be admitted exclusively on the basis of its reliability. Threats, inducements, and torture are likely to produce unreliable statements. The teens’ unreliable claims in the Central Park Jogger Case are a perfect example of this.
The second is that throughout the investigative stage, the disciplinary principle encourages the court to prohibit inappropriate behavior. Courts can use their authority to refuse to admit such evidence, effectively rendering these techniques obsolete.
The Protective Principle protects the rights and liberties of individuals. This approach is endorsed by the Rome Statute, which declares evidence gathered by force or torture to be invalid. Despite the fact that India is not a signatory to the Convention, these principles have a significant impact on criminal trials.
The fourth principle is the Judicial Integrity Principle, which urges courts to avoid engaging in improper activity by refusing to accept contaminated evidence. The fact that our courts continue to give relevancy precedence over procurement methods shatters our faith in the courts to uphold a fair process established to defend fundamental rights.
Let us be aware that the application of this concept may result in the release of the guilty. However, it is critical to balance the rights of the accused with the rights of public safety. Even the 1st Law Commission Report stated that the police are abusing their position to acquire statements or evidence.
People in India are frequently unaware of their legal rights, making them vulnerable to police brutality, abuse, and arbitrary arrest. During court cases, it becomes even more critical to wean out such evidence. In view of the Puttaswamy decision, the current statute must be changed. Even English courts are starting to seek a balance between the accused’s rights and the negative consequences of infringing on fundamental rights like privacy and liberty.
The courts now have complete discretion in deciding whether or not to admit evidence under Section 5 of the Indian Evidence Act by assessing it against Article 21 of the Constitution. According to the 94th Law Commission Report, greater emphasis on human rights, as well as the expansion of Article 21, make it necessary to rethink this doctrine into the present statute. Furthermore, a law must be enacted that ensures the public that their civil freedoms will be respected at all times. Wiretapping and illegal seizures are infringing on human dignity and societal values, which are so important in a proper criminal justice system.
Thus, it is argued that admitting illegally obtained evidence would not only deny the accused a fair trial but would also effectively condone the investigation agencies’ illegal activities, which would be a violation of the due process model’s essential principles. Allowing the state to get away with illegal conduct has a lot of room for abuse, and it gives the investigative agencies unlimited impunity. In its most basic form, the Fruit of the Poisonous Tree theory prohibits investigating agencies from breaking the law or infringing on people’s rights in their pursuit of evidence. Furthermore, under Article 21 of the Constitution, privacy, and dignity are regarded as “inherent in a human being.” As a result, investigative organizations cannot be allowed to violate an individual’s rights in order to get evidence or a conviction. There is a strong need to pass legislation prohibiting the use of all illegally obtained evidence. Other than that, with the privacy decision in place, Section 5 of the Act, with Article 20 prohibiting self-incrimination and Article 21 related to the right to privacy, is crystal obvious. As a result, the Fruit of the Poisonous Tree theory provides a better way to deal with evidence collected illegally.
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