Do you believe that even though something has been admittedly stolen, it can be used as evidence?
Indian law says YES.
Courts aren't prohibited from considering illicitly obtained evidence as long as it's relevant to the case or helps establish guilt/innocence by the Evidence Act of 1872. The Indian courts have repeatedly ruled that evidence obtained illegally or improperly is admissible.
Illegal evidence is that evidence which is procured in violation of a law or a constitutional provision. Those evidences that are obtained in violation of person’s human rights or breach of law during an unlawful or illicit course of action. It is obtained as a result of a search or seizure of goods that was illegally conducted, or through entrapment.
It's possible to obtain evidence illegally in a variety of ways. Illegally obtained evidence can be found in the following situations:
1. Phone tapping/recording, unless authorised by law;
2. Illegal search and seizure;
3. secret camera recording of activities;
4. coerced narcoanalysis
Person’s fundamental rights is subject to threat. His or her right to privacy can be infringed upon if evidence is obtained illegally or improperly.
Under the Indian Evidence Law regime, illegally obtained evidence is admissible in court if it is "relevant" to the case and admission of such evidence is not expressly or impliedly prohibited by the Constitution or any other law. However, with the advent of the Fundamental Right to Privacy, which prohibits unwarranted searches and seizures, this legal position must be revised in order to protect citizens' privacy rights.
Important case law
In Ukha Kolhe v. State of Maharashtra case court ruled that if the proper procedure is not followed, the evidence cannot be considered admissible.
Here the court has strictly stated that unlawful methods used to procure evidence wouldn’t be admissible.
Contradictory and hypocritic nature of the Indian judiciary can be seen in Natwarlal Damodardas Soni and R.M Malkani cases which ruled that illegally obtained evidence is admissible in court if it's relevant to the case, but it must be treated with care and caution by the Courts.
In the landmark case of Poorna Mal v. Director Of Inspection Of Income Tax (Investigation), New Delhi, the Supreme Court upheld that "Unless there is an express or necessary implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut down,"
It is clearly visible that even if a piece of evidence is obtained through unethical and illegal means to obtain, its admissibility is unaffected if it is otherwise relevant and its authenticity can be proven.
If evidence is obtained illegally, it will not be admissible in court. Thanks to the Section 50 of the Narcotic Drugs And Psychotropic Substances (NDPS) Act, which grants procedural rights to the accused that are statutorily mandated and are therefore presumed to be followed. But in other situations, this legal standing to exclude illegally obtained evidence does not apply as it is limited to the NDPS Act.(1)
A nine-judge Supreme Court bench in the landmark case Justice K.S. Puttaswami and Anr. Vs Union of India and Ors. has ruled that Article 21 of the Constitution guarantees citizens' constitutional rights, including the right to privacy. Citizens have a right to consent to any use of their physical body, personal data or their property. When Article 21 recognises a person's right to privacy, it contradicts what was said in the Poorna Mal case that there is no constitutional construction that requires the exclusion of illegally obtained evidence.
There exists a reasonable expectation of privacy against 'unreasonable search and seizure' since citizens have the right to protect their personal data from unreasonable interference by the State through the right to privacy. Therefore, any evidence obtained through illegal search should not be admissible as it would violate the Citizen's fundamental right. Any evidence obtained in violation of an individual's privacy must, however, be allowed into evidence if it is authorised by law, which must have a rational connection to the legitimate goal as well as be proportionate in nature.
The Supreme Court retaliated against the Poorna Mal (32) case in the Rafael Judgment (31) by holding that the test of admissibility of any evidence is its "relevance" unless it is expressly or impliedly prohibited by the Constitution or Statutory mandate. There is no legislatively enacted law that governs this issue, and this entire judicial system suggests that India has not yet settled its position on the admissibility of illegally obtained evidence.
Comparison with other jurisdictions
US- In the USA, there are two doctrines that prohibits admissibility of illegally obtained evidences.
1. Exclusionary principle- The principle proscribes illegally obtained evidence. This rule acts as a safeguard against the 5th Amendment Right that is rights against self-incrimination.
This rule is not absolute and comes with some exceptions-
If the evidence is discovered by a private individual rather than a law enforcement officer, if the evidence would inevitably appear as a result of an illegal search, and if the officer conducted the search in good faith, but the warrant was later found to be invalid, the exclusionary rule will not apply.
2. Fruits of poisonous trees- According to the doctrine, evidence obtained from primary illegality in the procedures, which includes both physical evidence and live testimonies, is inadmissible because the evidence evolves from the poisonous tree, i.e. the illegal procedure.
UK- “Unfair Operation Rule”, codifies under section 78 of the Police and Criminal Evidence Act 1984 (PACE), which states that a judge can exclude evidence if it would be unfair to the defendant. This category includes illegally obtained evidence and confessions.
The ‘end justifies the case’ is what matters to the Indian courts. But it’s time to look forward and revamp the laws regarding the admissibility of illegally obtained evidences. A shift towards the exclusionary rule of American jurisprudence would be fruitful to the citizens’ right to privacy.
1. State of Punjab v. Baldev Singh, (1999) 6 SCC 172.