Scholarly Exposition

Admissibility of Illegally obtained Evidence : Effect of KS Puttaswamy Judgment

Law of Evidence

Submitted To:

Prof. (Dr.) K. Vidyullatha Reddy

Submitted By:

Prakshal Jain

2017-5LLB-36

Year III, Semester V

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 INTRODUCTION
A classic debate in political liberalism has been highlighted by the interface of criminal law
and the constitution. It has always been a matter of great debate on where to draw the line
between individual liberty and social control. Criminal law deals with the use of coercive
method by the state to restrict individual freedom on conceptions of some public good such
as state security or public order, and criminal procedure describe these processes. On the
other hand, the constitution tries to protect this individual liberty from excessive or arbitrary
intrusion by the state. It does do by putting a limitation on the scope of exercising these
powers under criminal law.

Law of Evidence under the Indian Evidence Act, 1872 prescribes the procedure for procuring
evidence in civil suits and criminal trials. However, the admissibility of illegally obtained
evidence has been a matter of great debate in legal corridors of the country. The present law
admits any evidence which has been obtained illegally until and unless it doesn’t prejudice
the case of the accused. However, this position is not a statutory mandate but a judicial
construct over the years. The author of the paper will analyze the precedents in India which
led to the development of this norm. A comparative study with the laws of USA and UK will
also provide clarity on this issue. Author has chosen fours papers namely – “Admissibility of
Illegally obtained evidence” by S.N. Jain1, “Fruits of the poisoned tree : Should Illegally
obtained evidence be admissible” by Talha Abdul Rahman2, “Admissibility of Evidence
obtained through unreasonable searches and seizures” by Thomas E. Atkinson3 and “Using
evidence obtained by Illegal Search and Seizure” by John H. Wigmore4 for this scholarly
exposition. Firstly, the paper will try to briefly summarize the positions taken by these
authors. Secondly, a comparison has been showed of Indian Laws with that of USA and UK.
Lastly, the author will give his opinion on the issue with possible solutions.

1 SN Jain, Journal of the Indian Law Institute, Vol. 22, No. 3 (July-September 1980), pp. 322-327.
2 Talha Abdul Rahman, The Practical Lawyer, Apr. 2011, at 38.
3 Thoman E. Atkinson, Columbia Law Review, 25(1), pp. 11-29.
4 John H. Wigmore, American Bar Association Journal, Vol 8 No. 8 (August 1922), pp. 479-484.

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 PAPER SUMMARIES
“Admissibility of Illegally obtained evidence” - S.N. Jain

The paper through various precedents outline that Indian Jurisprudence admits an illegally
obtained evidence since there is no statutory restriction in not doing so. There are several
methods by which evidence can be illegally obtained like eavesdropping, illegal search,
violating the body of the person etc. The general approach of Indian judiciary has been to not
exclude the evidence since it does not affect the reliability of the evidence itself. The paper
relies on various judgments which resulted in the development of this principle. Some of
them being – Bai Radha v. State of Gujarat5, Pooran Mal v. Director of Inspection6 and
Verghese Verghese v. Commissioner of Agricultural Income Tax7. Moreover the paper
discusses the case of RM Malkani v. State of Maharashtra8, where an illegally recorded
conversation between the accused and third person was admitted since there was no statutory
bar. An interesting case of Ukha Kolhe v. State of Maharashtra9 also was presented to
substantiate the claim that such evidences are admissible. In this case, the blood sample was
taken to determine whether he had committed an offence under the Bombay Prohibition Act.
However, the procedure was not followed in taking the blood sample as prescribed under
129A of the statute. A four one majority held that the evidence was admissible. Further, the
paper provides arguments against and in favour of admitting an illegally obtained evidence
which can be briefly summarized as follows:

Arguments for excluding such evidences:

(a) The rules are necessary to deter the obtaining of such evidences in absence of other
alternative remedies.
(b) The sanctity of the investigation process as well as the criminal justice system is
upheld if such evidences are not admitted.
(c) It does not give state the power to use coercive methods and flout the legal system of
the country. There is no sanctions against the police officers who illegally obtain such
evidences.

Arguments in favour of admitting such evidences:

5 AIR 1970 SC 1396.

6 93 ITR 505 (1974).
7 105 LTR 732 (1976).
8 AIR 1973 SC 157.
9 AIR 1963 SC 1531.

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 (a) The evidence is reliable even if illegally obtained and to come to a conclusion the
only pre-requisite is the veracity of the evidence.
(b) It does not give any remedy since the illegal investigation has already taken place and
the exclusion will result in acquittal of the accused if the evidence is not made
admissible.

The paper further does a comparison with the laws in USA and give a list of precedents
on how earlier the position in USA was to admit such evidences. However, after the
Fourth and the Fifth Amendment, which basically talks about the right to privacy and
right against self-incrimination respectively, admissibility of such evidences was barred.
It cites the case of Mapp v. Ohio10, which held that under the “due process” clause,
evidence obtained by a search and seizure in violation of these amendments is
inadmissible in a state prosecution in a criminal trial. This was the exclusionary rule
principle. However, this rule is not applicable in a civil action suit like Internal Revenue
Service proceeding.11 Finally the author concludes by saying that the exclusionary rule
should be followed in India.

“Fruits of the poisoned tree : Should Illegally obtained evidence be admissible” - Talha
Abdul Rahman

The paper argues that illegally obtained evidence should not be allowed in India. The rule of
fair trial will be upheld if such evidences are barred since it violates core human rights of
privacy obtained through methods of violence, torture and entrapment. As in the paper of SN
Jain, this paper also presents the current position in Indian law that the only test of
admissibility of evidence is the relevancy of the piece of evidence.

The paper expounds on 4 principles which mandates that such evidence should not be
included which are:

(a) Reliability Principle – The evidence which should be admitted in the court of law
should purely be on the basis of determining the truth. However, any evidence which
is obtained through violence, torture etc in itself loses its reliability.
(b) Disciplinary Principle – It says that even if the evidence is reliable but illegally
obtained, the court should not allow such evidence as a matter of judge’s discretion so

10 367 US 643 (1961).

11 United States v. Janis, 428 US 433 (1976).

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 as to discourage improper practices in the investigation of crime. By following this,
the prosecution would itself stop resorting to such techniques of obtaining evidence as
they will no longer be useful.
(c) Protective Principle – It is the most critical principle according to Rahman. He
argues that any evidence which has been obtained infringing on the rights of an
individual should not be admitted as a remedy for violation of his/her rights. This will
act as a protection since such process of illegally obtaining evidence provides a prima
facie justification for its inadmissibility.
(d) Judicial Integrity Principle – This principle says that if the courts are not
discouraging such evidences then they are essentially endorsing such conduct of
improper procurement of tainted evidence. Therefore, to maintain the integrity and
respect for the administration of justice, the court should be cautious in admitting such
evidence. The reason is not based on any moral value judgment but the thrust of
public confidence in the integrity of the judicial system. Since it is not only based on
the conviction of the guilty but also on how such conviction has been achieved.

In the later part of the paper, the author presents cases from different common law countries
like Canada and Australia to show how the cases which Indian Jurisprudence relied upon to
develop such principle of admissibility have been overruled. In fact, it is ironic that other
common law countries have rejected such admissibility but India is still following it. One
such example is Article 24(2) of the Canadian Charter of Rights and Freedom. The rationale
this charter gives for the exclusion is that “evidence collected in violation of rights or
freedom under the charter, would bring administration of justice into disrepute in the eyes
of the reasonable man, dispassionate and fully apprised of the circumstances of the case.”
Thus the court of Canada applies the test of proportionality to determine admissibility of
such evidences.12 The author concludes that the Indian courts should adopt an inclusive rights
approach and must distance themselves from admitting evidence obtained from violation an
individual’s freedom and privacy. He argues that specific legislation should be made in this
respect and a necessary balance has to be carved out while exercising discretion by the Judge.

“Admissibility of Evidence obtained through unreasonable searches and seizures” -

Thomas E. Atkinson

12 R v. Collins, (1987) 1 SCR 265 (Canadian SC).

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This paper discusses the Wigmore paper too. Therefore, the author will briefly summarize
both the papers. The paper of Wigmore discusses various precedents about this principle. It is
to be noted that both these papers were written in 1920’s. I have chosen these papers to
demonstrate the counter – argument revolving the admissibility of illegally obtained
evidence. Both these paper argues that the general principle at that time was to admit illegally
obtained evidence. The cases which did not allow such admissibility have been criticized
providing various fallacies adopted in the cases. It is important to note that the position has
been changed which has been presented in both the papers.

Wigmore’s paper was written in 1922. There have been considerable developments after that.
The paper discusses the case of Modern Federal Doctrine of Boyd v. US and Weeks v. US.
The author argues that the ill-starred majority judgment in Boyd had two fallacies: first, that
the fourth amendment of the constitution of America which prohibits unreasonable search
and seizure was intrinsically so related to the Fifth Amendment (prohibiting compulsory self-
incrimination) that fifth amendment can be invoked by an accused to stop the surrendering of
documents even by a lawful officer. And secondly, the documents obtained by an unlawful
search are not admissible in the court of law.

The doctrine in Weeks v. US exemplifies a principle which is inconsistent with the legal
system. If an evidence has been obtained illegally, it releases both the accused and as a
result of which no punishment is given even to the person who has obtained the
evidence illegally. Since, if the evidence will be admitted, it will be a breach of person’s
individual freedom and privacy.

Atkinson’s paper discusses the jurisprudence on the interplay between fourth and the
Fifth Amendment. The courts have done a conjoint reading of the two amendments
which has resulted in the principle that even if the evidence is illegally obtained it is
admissible unless it prejudices the administration of justice. Since, the illegal method of
obtaining the evidence does not taint its veracity.

Presently, the position in the court of US is that of exclusionary rule.

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 ANALYSIS AND MY OPINION
In my opinion, the recent judgment of Justice KS Puttaswamy v. Union of India popularly
known as the privacy judgment has added new dimension in this field. It is a well settled
principle that substantive laws defines rights and duties of an individual and procedural
laws are there to have efficient enforcement of these rights. In no way can procedural
laws be applied to flout the substantive laws. Fundamental Rights of a person are so
intrinsic to his/her existence that they cannot be done away with. To summarize all the
papers, in United State’s constitutionalism, illegally obtained evidence is inadmissible.
This is known as the exclusionary rule principle enumerated in the Fourth Amendment
which states “the right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures shall not be violated”, albeit, the US
Supreme Court has carved out some exceptions. In United Kingdom, under the Police
and Criminal Evidence Act of 1984, the admissibility largely remains a matter of
discretion with the trial judge.

In India, admissibility is only to the extent that it is not working unfairly for the accused.
This is the Unfair Operation Principle. In determining the evidence’s admissibility, it
permeates to its doctrine on whether the evidence admissibility is in violation of
fundamental right under Article 20(3). “Compulsion” is the sole ground for exclusion of
evidence. Article 21 prohibits deprivation to life and liberty except by procedure
established by law. Now the pertinent question which arises is that should illegally
obtained evidence be barred by law since it has not been obtained by procedure
established by law?

Most of the cases discussed in the first two articles negate the question giving rationale
that there is no such statutory bar which should restrict courts in not admitting such
evidence. Moreover, since there is no explicit mention of Right to privacy in Part III of
the constitution of India, the framers of our constitution did not intend to include it as a
fundamental right as opposed to the framers of the American Constitution who included
the Fourth Amendment.

In my opinion, this reasoning could have been viable during that time. However, with
changing notion of the society with the changed social-cultural milieu, individual rights
are taking precedence over state’s authority to curb someone’s freedom. The scrapping
up of Article 377, Adultery being struck off are some example. One such judgment came

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in the year 2017, Justice KS Puttaswamy v. Union of India. This judgment cemented the
right to privacy in the Indian Constitution. It held that right to privacy is protected
under the golden thread of Article 14, 19 and 21. Although right to privacy emanates
from Article 21 of right to life and personal liberty. This right to privacy can only be
constrained by the state through some reasonable restrictions. With the invocation of
right to privacy – the admissibility of illegally obtained evidence has to be discussed
again. The position has drastically changed as opposed to the reasoning which was
given in the Pooran Mal case. No illegally obtained evidence should be made admissible
under Section 5 of the Indian Evidence Act since it is violating fundamental rights of a
person enshrined in the constitution of India. It is a well settled position of law that
procedural laws are there to aid in the smooth realization of substantive rights. No way
can they be contradicting to the substantive law and procedural law cannot be given
precedence over them. The evidence should be barred since it violates all the 4
principles presented by Talha Rahman - reliability, disciplinary, protective and judicial
integrity.

The author of this paper opines that the most important case is MP Sharma v. Satish
Chandra13, where an eight judge constitutional bench held for the very first time in
Supreme Court that fourth and Fifth Amendment as developed in US can be relied upon
by India because of the textual difference between the two.

The Right to privacy judgment overruled such reasoning. The court relied on an English
Case of Semayne14, which categorically stated that “every man’s house is his castle”.
This embodies a general principle which extends not merely to properly rights but
personal liberty. The court sided with Justice K Subbarao in Kharak Singh case and held
that right to privacy is an essential ingredient of personal liberty. For this they relied on
American case whereby Justice Frankfurter in the case of Wolf v. Colorado15, pointed out
the importance of one’s privacy against arbitrary intrusion.

The inadmissibility of such evidence can also be justified independent of the

fundamental rights of a person. Ronald Dworkin, in his article Hard Cases16, he pointed

13 AIR 1954 SC 300.

14 5 Coke 91: 1 Sm LC.
15 1949 238 US 25.
16 Ronald Dworkin, 88 Harvard Law Review, (1975), pp. 1057-1058.

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out the distinction between hard cases based on the argument of principle and
argument based on public policy. He pointed out that in such cases, the judge should
avoid taking decision in isolation even if they look right. A judgment should be based on
legal principles with principled justifications. The protection under the unfair operation
rule exists for the benefit of the accused and not for the benefit of the state. The
principle adopted under part II of Indian Evidence Act about the relevancy of the facts
exists to ensure accuracy in the fact finding procedure. Even though the evidence is
reliable although obtained illegally, it should be made inadmissible since the very act of
procuring it makes it unreliable. Moreover, there are no punishments attracted for
illegally obtaining such evidence which keeps the door open for even the enforcement
authorities to exercise and resort for more coercive methods of obtaining evidence.

It has to be also noted that India is a country which has a lot of corruption. There can be
a possibility that making such illegally obtained evidence inadmissible will result in less
conviction of the actual guilty person. But it has to be kept in mind that you can’t convict
an innocent person so as to convict an accused.

The procedures through which criminals are punished and crimes are investigated have
been sub-divided into two categories:

(a) Crime Control Method: The central theme is to punish the crime and it can
come at the cost of fact finding just to increase the efficiency of criminal justice
system.
(b) Due Process Model: Here the process of procuring the facts has to also be taken
into consideration. The presumption of guilt has no place in this unlike the Crime
control model. In fact, it is presumed that the heaviest deprivation that the
government can inflict upon an individual is loss of liberty.

Therefore, the issue has to be looked from a different lens where the legislation has to
deeply put individual’s liberty above its coercive methods to procure evidence. Since, it
inflicts different kinds of torture and violence and the officials are not penalized.

Following the current social milieu, it becomes imperative for the judges also to define
some guidelines looking into the aspect of illegally obtained evidence. In fact as stated in
the paper, the line of cases has to be relooked again and the unfair operation principle
has to be scrapped off or cautiously applied only in exceptional cases. These exceptional

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cases will be based on facts and circumstances of each case. However, the general rule
should be to exclude such illegally obtained evidence and to only admit them it will
otherwise result in the failure of administration of justice.

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 CONCLUSION
After doing the scholarly exposition of the four papers, the current law in India admits
illegally obtained evidence. The general reasoning developed through judicial construct only
states that there is no statutory bar for not allowing illegally obtained evidence. However, a
closer look into the precedents around this issue suggests that the English law cases which
were being followed to construct such unfair operation principle have already been
abrogated in the English or common law jurisprudence. In fact the fourth and fifth
amendments explicitly prohibits such admissions in courts since they are self-incriminatory
and in violation of one’s fundamental right to privacy. Even though Right to privacy has not
been explicitly mentioned in the constitution of India as a fundamental right under part III,
which was the dominant reasoning for admitting such illegally obtained evidence. Post
Justice KS Puttaswamy judgment, the issue of admissibility of such evidences has to be
relooked upon. The government following the 94th Law Commission Report may make
statutory admissibility of such illegally obtained evidence. However, after right to privacy
being concretized as a fundamental right in Puttaswamy, taking this step would effectively be
going against a constitutional bench judgment of country’s apex court. It has to be kept in
mind that Fundamental rights are so inherent to an individual’s freedom and liberty that they
cannot be subservient to the procedural laws. Moreover, the text of our constitution explicitly
mentions under Article 21 that the deprivation to life and liberty can only be done under the
procedure established by law. The procedure must follow the principles of natural justice. A
fair trial cannot proceed if the procedure itself is unfair. The reading of law has to be inter-
textual. Article 21 should be read with Article 20(3) and relevant provision of the Indian
Evidence Act. The recommendations by the Law Commission will not be good now since
there is an explicit case reading right to privacy in the constitution. Hence, the solution could
be to relook the whole precedents of case laws and draft a policy balancing the individual’s
rights and state’s encroachment of his/her rights. Since admissibility of illegally obtained
evidence also taints the judicial integrity, it should be barred. The executive authority and
police will resort more and more to such mechanisms in obtaining evidence which will
further infringe and individual’s right. Likewise, criminal cases should be differentiated from
civil suits and admission of such evidence should be taken as a measure of last resort.

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