Admissibility of Illegally Obtained Evidence in Indian Criminal Trial : A Critical Analysis

Admissibility of Illegally Obtained Evidence in Indian Criminal Trial : A Critical Analysis


“It is revolting to have no better reason for a rule of law than that, so it was laid down in the time of Henry VI.” Justice Oliver Wendell Holmes 

Personal liberty and privacy have become two fundamental in today’s culture in order to determine whether we have moral bounds. As individuals, we must next consider whether we are ready to sacrifice our personal liberty and morals in the pursuit of justice. But, in order to attain that justice, are we willing to compromise on the means? If so, are we really working toward justice as our ultimate goal? The quandary is how much discretion should be granted to judges in criminal courts in order to allow illegally or inappropriately obtained evidence. 

The purpose of this research study is to examine the most contentious problem in the Indian criminal justice system. For the longest time, Indian legal jurisprudence and practitioners have been preoccupied with the issue of acceptability of illegally obtained evidence in courts. The Exclusionary Rule, which is well-known around the world, explains why illegally obtained evidence should be dismissed from criminal proceedings. In order to answer the question of whether illegally obtained evidence should be admitted, the research piece will seek to analyse and critique existing Indian legislation by researching the trajectory of Judiciary, case laws. The essay also seeks to answer questions about evidence admissibility and compares it to laws in other jurisdictions.

Illegally obtained evidence is admissible in criminal prosecutions in Indian courts since there is no specific legal or constitutional prohibition on admissibility. Illegally obtained evidence is permitted as long as it is germane to the facts at hand, and British courts have taken a similar approach. The Unfair Operation Principle exists in India, and it is recognised as an exception to admissibility. However, Indian courts have neglected to expound on this, and this exemption is classified under the Indian Evidence Act, 1872, only under ‘Section 122’, which pertains to ‘spousal privilege,’ ‘Section 123’, which pertains to ‘state privilege,’ and ‘Section 126’, which belongs to ‘attorney client privilege,’ among others. However, the problem persists because there is no provision in the code or constitution that provides justification for the same.

The Fourth Amendment of the US gives that illicitly acquired confirmations ought to be barred. Be that as it may, the High Court of US has effectively cut out different exemptions for this Exclusionary Rules; notwithstanding, it actually stays prohibited by and large. Essentially, in United Kingdom the evidence code and different decisions in nutshell, bars from permitting any wrongfully acquired proof.

Given the limited literature and scarce number of judgements by courts this article attempts to engage with the Unfair Operation Principle, which is a doctrine that has been adopted by the Indian Supreme Court from the common law. The article will dwell deeper into existing Indian jurisprudence and survey the various judgements of the higher courts in the country. Then, the article will argue that according to the doctrine the judge should not have any discretion to admit the evidences which are illegally obtained, this will be aided by Dworkinian theory. Lastly, the article will gaze the differences and similarities between the Exclusionary Rule and Unfair Operation Principle ascertaining that while both protect interests of an accused how are both technically different. 

Part I : Historical lens of Evidence Law in India

One cannot comprehend the Indian legal system without taking into account the impact of the British common law and precedents, that were incorporated into the system during and post colonisation of the nation by the British. The Indian Evidence Act, 1855 brought with it the common law principles prevalent in Britain. Although during the British rule it acted as a device to ensure the conalinizer’s rule on the nation, with its evolution it serves as a cornerstone of the Indian evidence law. The Evidence Act, 1872 showcases the evolution of the common law practices that continue to shape the evidence law system in India, today. 

In the case of R. v Narain Singh, the influence of common law is exemplified. This case was heard in front of the Privy Council, although a subject matter of India, was ruled in England. This landmark judgement highlights on the historical ties between between the evidence law of India and Britain, it also brings into focus the influence of English precedents on the domestic evidence laws. It further exemplifies India’s legal system and its feature of being woven through and into the global jurisprudential fabric. 

India’s legal system has transcended from its colonised past, it merely places its roots in the British common law practices and should not be a reason to contain its evolution. Moreover, the historical foundation is treated as a more equitable and just reason to create more encompassing laws, that balance the legal structure to fit the independent India. It is essential to acknowledge that contemporary India places value in the necessity of shaping the legal system catering to domestic needs and aspirations. The Evidence Act might be seen as a product that came about through an era bygone, however rather than treating it as archaic, one must see its dynamic nature to act as a tool of achieving justice. The evolutionary nature is the essence of the biggest democracy, India, on its journey and commitment to uphold the principles of justice. 

Part II : Indian Jurisprudence and The Unfair Operation Principle 

During the early years of independence the case of Nandini Sathpathy v P. L. Dani, the concept of working with inherited doctrines in the nuanced subjects of admissibility of evidence began to cement, in this case the need to to provide a safeguarding measure to individuals from state coercion highlighting the beginning of the unfair operations principle as a core value compassed by the judiciary, came to forefront. The unfair operation principle is not codified explicitly, under the Evidence Act, yet stands as salient feature of the jurisprudence behind the act. With accordance to this principle, in simple terms, any evidence that that is obtained through unfair means is not considered as improper evidence. This principle creates a tapestry of ethical considerations, in all aspects of the Indian legal system and has been established through various judicial decisions although not yet codified. In the case of Pooran Mal v Director of Inspection, Customs and Central Excise, the Hon’ble Supreme Court ruled that evidence procured through manners that are coercive in nature, ought to be seen as ‘operating unfairly’ against the accused and cannot be seen as evidence admissible in the court of law. Not only does this judgement reinforce the jurisprudential principle of unfair operations but also expands on the nuances of the judicial understanding of the laws through an ethical lens, upholding the principles of justice. This example is crucial to understanding how the unfair operations principle operates in the real world scenarios especially in the Indian legal context, the judgement serves as an illustration that showcases the judiciary’s foundational aim towards ensuring protection of individual rights that arre deemed to be fundamental. This case also explores the dynamics of legislative silence that has compelled the judiciary to fill the void caused and the unfair operations principle, which lacks any form of statutory backing merely becoming a canvas upon which the judiciary evolves standards keeping in mind constitutional principles of protection of individual liberties. Justice in India is not merely a a baseless interpretation of legal texts, but rather a commitment to provide justice while upholding principles such as morality guided by an ethical compass. This further reinstates, that Indian legal systems are webbed with ethical considerations and are testamentary that justice cannot be confined to just statutory rigidity but rather has to been seen as an evolving principle that aims to reflect the aspirations of the society. 

Part III : Judicial Discretion and Admissibility of Indian Courts

Judicial Discretion is a salient feature of the legal system in India, when one ponders upon the admissibility of evidence obtained through unfair means this discretion acts as a balancing strike between rights of individuals and justice. Often people describe judicial discretion as an ‘ace up the sleeve’ for the judges in the Indian judiciary, as it enables them to navigate through complex cases of evidence admissibility specifically scenarios where evidence is obtained through unfair means. This enabling discretion allows the judge to weigh the significance of such evidence through the lens of the rights of the accused, upholding the right of fair and just trials to all in the eyes of law. 

In the case of M. P. Sharma v Satish Chandra, the pivotal role of the judicial discretion concerning the admissibility of evidence obtained through unjust manners is highlighted. In this judgement the court held that evidence that is obtained through means or manners that infringe upon the rights of the accused cannot be seen as lawful evidence in the eyes of law. This judgement reinstates that the judges’s discretion in cases relating to unfairly obtained evidence, is in pursuit of justice, without costing the commitment of upholding fundamental rights and ethical thinking. This case is a reflection on judicial discretion acting as the judges commitment in maintaining perfect balance between rights of individuals and justice and more than just a decision-making tool. Similarly, in the case of Kharak Singh v State of UttarPradesh the court upheld that fundamentals of preserving individual rights of privacy ought to be pursed even in the search of evidence, if one’s freedom is trampled then such evidence cannot gain in the legal courts. Both these cases reflect upon judicial discretion acting as a fulcrum which aims to maintain balance between principles of justice, individual rights, morals and ethical conscience. 

Part IV : International Jurisdiction

To completely understand the Indian legal understanding of unfairly obtained evidence and its admissibility in the eyes of law, one must look beyond the nation’s boundaries and into the international comparative trends on the issue. 

In United States of America, the doctrine of exclusionary rule is employed, it is the heart and soul of the fourth-amendment in the U.S. Constitution. The exclusionary rule also applies on the search and seizure of evidence, incase the obtaining of evidence is done by hampering the just manners, it is not seen as valid in the eyes of law, upholding individual rights and upholding the integrity of the criminal justice system. In the case of Mapp v Ohio, the supreme court expanded upon the exclusionary rule to state-level prosecutions, ensuring that any evidence that is obtained through a manner that is illegal would be inadmissible. Similarly in the case of Terry v Ohio, the court introduced the ‘stop and frisk’ exception to the exclusionary rule, this inclusion made way for law enforcement officers, on grounds of suspicion, stop the accused and search for evidence than obtaining it through coercion, making it legally valid. Both these cases showcase that the laws of U.S. pertaining to evidence secured through illegal mediums is seen as an infringement upon individual rights and cannot seem to be just in the eyes of law. Along with the exclusionary rule, an extension of ‘fruit of the poisonous tree’ doctrine of the U.S. stipulates that incase even if a singular evidence that is illegally obtained is considered to be legal, is a taint on the entire court system’s legality. This doctrine was introduced in the case of Silverthorne Lumber Co. v The United States where evidence derived through illegal manners or unconstitutional searches or through coercion would be inadmissible in the court of law. This example adds depth to the discussion around admissibility of illegally obtained evidence suggesting that the United States’ evolution through its doctrines to ensure a strict and conclusive method against illegally obtained evidence and its evidentiary value in court, has been a commitment to uphold the principles of fairness and justice.

These cases also highlight the need to take up a nuanced approach towards the cases of unfairly obtained evidence to protect individual rights and in turn have a just criminal proceeding, to uphold justice.

In United Kingdom, there exists a rigorous approach while dealing with cases of unfairly obtained evidence. The importance of maintaining the integrity of the evidence without infringing one’s individual right is showcased in the case of  R v Sang, where the House of Lords upheld that exclusionary principle is strictly applied in cases where the evidence is secured through illegal means. This case highlights U.K.’s stance of its unwavering exclusion on evidence procured through illegal means, it also further exemplifies the commitment of the U.K. legal system towards the fairness in a trial. Similar to the fourth amendment in the United States, the United Kingdom has placed significant emphasis on the principle of the right to silence, which was highlighted in the case of R v Director of Serious Fraud Office, ex parte Smith. In this given case the suspect chose to be silent during the police questioning, the court upheld that this provision ought to be upheld as it is not only fundamental but also for robust protection of individual rights during criminal investigations. In conclusion, both these countries provide a comparative analysis with an international jurisdiction on matters of unfairly obtained evidence, it also provides a valuable insight on how different legal systems also deem the unfairly obtained evidence as something that ought to be excluded as it pits against the rights of the accused.

In Canada, admissibility of evidence that is obtained through questionable manners is determined through the ‘grant test’ which was established in the case of R v Grant, in this case the seriousness of violation of the Canadian Charter is pit against the impact of admissibility of illegally obtained evidence on the rights of the accused, providing a guiding light for the judges to exercise their discretion. The grant test demonstrates a nuanced valuation, that takes into consideration both the violation of law that has been caused by the accused along with the broader impact on the justice system by legally accepting illegally obtained evidence. This simply showcases the diverse approaches present in the case of admissibility of illegally obtained evidence, yet the determination of ensuring balance between fairness and justice. 

Article 6(1) of the European Convention on Human Rights (ECHR) guarantees the right to a fair trial, in the case of Jalloh v Germany the European Court held that the use of evidence that is obtained through coercion or some form of torture violates a persons right to fair trial and cannot be deemed as admissible in the court of law. Including the perspective of ECHR expands on the comparative analysis beyond common law jurisdictions, it also showcases the influence of human right  based framework in shaping the rules of evidence admissibility, one cannot undermine the importance placed upon fairness in trials and rejection of illegally obtained evidence due to its  nature being infringing upon human rights. The global consensus that can be understood is, individual rights overthrow the value of evidence if it is secured through illegal channels, simply pitting that something legal and just cannot be based on of something that is illegal and unfair. 

Part V : Ethical and Philosophical Perspectives

If one looks at the concept of illegal procured evidence through the lens of utilitarianism, they might argue that evidence even if secured through illegal channels, should be considered admissible in court as it serves greater interest of justice. However, this perspective lacks the ethical dilemma concerning individual rights and cannot be seen as natural to the aim of justice. Prioritising the pursuit of justice over individual rights cannot be seen as concept that does greater good, since justice that is given at the cost of illegality cannot be considered to be ethically fair. The utilitarian thinking finds its criticism in the deontological ethical perspective, which can be said to be spearheaded by Immanuel Kant, revolving around the duty to be in moral bounds. The would contend that fundamental rights and principles cannot be overpowered or compromised even if in the pursuit of justice. Applying this onto the unfairly obtained evidence and its admissibility,  incase even if once individual rights are overshadowed in the pursuit of justice, some rights are so fundamental and essential that such overshadowing would erode the entire foundations of justice itself. 

Ronald Dworkin who advocated for striking balance between rights of individuals and societal interests at large, posits the judgement on matters of admissibility of illegally procured evidence on the judges and their discretion. This ensures that there raises no compromise that unmans individual right and that ethical and legal principles are both rendered to in a just manner. It is crucial to maintain this balance between justice and individual rights, guided with ethical and moral understanding, especially in cases of admissibility of evidence, since while navigating through the complexities of evidence one might for go their moral compass and would in turn lead a discourse from justice – fairness and their aim and principles. 

Part VI : Suggestive Measures

Looking from a contemporary lens, the Indian court system need a new proposed way to deal with the dilemma of admissibility. In my opinion, potential amendments to the Evidence Act, 1872 would ensure that admissibility is more structured and rigid especially for matters concerning illegally procured evidence. The new reforms ought to align with the contemporary ethical perspectives ensuring that a fair legal system is maintained, or people would lose hope on looking at courts for the purposes of obtaining justice. Judicial guidelines should also be elaborated upon with clarity and detail consistent guidelines regarding admissibility of illegal obtained evidence, as these guidelines would act as niche reference for the judges to dissent in a fair and clarified manner.  For example the British experience with the codification of the exclusionary rule in the Police and Criminal Evidence Act, 1984 provides explicit legislative provisions that offer both clarity and guiding compass for such nuanced cases relating to admissibility of illegally obtained evidence.

Since the legal landscape is dynamic there should be regular reviews and updates to the Indian Evidence Act, this would ensure that the act remains responsive and evolves to the changing social norms and advancements through both domestic and international standards. One must also look at the challenges that arise with evolution of the digital realm, where digital evidence has its own potential to impact self-incriminating rights. The cases where there exists compulsion to decrypt passwords raise the question about admissibility of evidence that is obtained through modern technology unfair means, such as hacking, inviting a greater discussion on the application of unfair operations principle. Is undeniable that technological advancements introduce a new range of complexities that the judiciary ought to be ready to respond to, to ensure fairness and also safeguard the rights of individual through critical understanding of aspects of this evolving discourse. 

Clarity in evidence law is not just for legal purposes and legal professionals, it expands onto the public’s understanding of their own rights – public awareness campaigns and initiative contribute to legal awareness and such initiatives in India can enhance the public understanding of the need to achieve balance between individual rights and justice, in cases that involve illegal means of obtaining evidence.

Part VII : Conclusion

It is important to reiterate the need to strike balance between justice and individual rights as an insight of this article, one needs to understand that the dilemma of admissibility of illegally procured evidence lays solely upon the equilibrium between individual rights and scales of justice. Indian criminal trials are an ever evolving concept and pursuit of justice is a unyielded imperative at the crux of this the question of admissibility of illegal obtained evidence yet remains an issue that has now become an enigma due to its lack of literature or continuous similar application. The article is left upon a comprehensive investigation of the issue, delving into the authentic, legitimate, moral, philosophical layers that support the tapestry of tolerability in Indian courts, it underscores the equally set legal system as one that strikes effortless balance of equity and individual rights rather than a stream and rigid one. All through this article, we have followed with verifiable impressions of English colonisation of Indian Evidence Act, remaining as a demonstration of the preserving itself through the English set precedents. The advancement of the Indian criminal trials, and especially of the admissibility of evidence is heavily guided by its pilgrim with the past, without it acting as shackles to the legal system, but rather as a enabler of advancement of equity in more contemporary understanding.  There is a call for decisive legislative action on the matter of a legally obtained evidence in the Indian criminal trials based upon the opaque nature of the admissibility of such evidence. The Indian Evidence Act, 1872 must be reformed in a way that it provides a much transparent framework that addresses these new nuanced challenges of the 21st Century. Although the unfair operations principle is resilient, it does require some form of statutory fortification to act as the compass for application of principles of justice and equality, and allow the judiciary to work with better clarity. 

While looking at India’s legal system the question of admitting illegally obtained evidence with historical precedents and contemporary complexities; the unfair operation principle exists with an ambiguity that castes uncertainty on the very foundation of justice. The Indian jurisprudence accepts this principle however has an absence of explicit legislative provision for the same, leaving much space for subjective varying interpretations. In conclusion of this research paper the question yet remains that what lies beyond theses proposed measures? One must look at this question with the understanding that fluidity of law is an ever-evolving concept and that clarity on the matters of admissibility of illegally obtained evidence would take its own journey in evidence law, in India. The open-handedness is an acceptance to the fact that the pursuit of answers of justice in such an nuanced topic, of admissibility, is not merely a linear trajectory but rather a woven tapestry with inclusion of other nuanced topics such as ethical considerations, rights of individuals and expectations of a society.

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