1.      Introduction: Exclusionary rules

The exclusionary rules permit an accused to prevent the prosecution from introducing at trial otherwise admissible evidence that was obtained in violation of the Constitution.[i] The rationale behind these rules is the expectation that law enforcement officers will refrain from engaging in unlawful evidence-gathering techniques if they are aware that the physical or testimonial evidence produced will be inadmissible at trial.[ii] These rules play an important role in establishing a balance between individual rights and preventing abuses of power by the authorities by banning the use of illegally obtained evidence and enforcing limitations in criminal proceedings.[iii] Although there are other measures like disciplinary or criminal proceedings against the guilty official, they may be useful as supporting measures but are not viable alternatives to exclusionary rules.

Exclusion of such evidence is considered proper in order to protect the integrity of the court by requiring or permitting the court to refuse to countenance unlawful actions. It also supports the credibility of the judicial system in the eyes of police officers. Moreover, there is good reason to believe that the exclusionary rule does not allow criminals to go free as much as would be the case if direct sanctions was applied. At the same time, the exclusion of evidence obtained in violation of the Constitution acts as a reasonable deterrent to illegal police searches.[iv] However, the rule may not be applied in rejecting highly probative evidence having consequence of nullifying a meritorious prosecution. Exclusionary rules include several other rules like the doctrine of Fruit of the Poisonous Tree which was established to deter law enforcement authorities from violating individual rights during search and seizure. However, this doctrine is not applicable parallel in India. The Law Commission of India in 94^th Report stated that there are many degrees of illegality and it appears that an element of elasticity in the law may, in the majority of cases, better serve the interests of justice than a blind adherence to a rigid rule of exclusion. At the same time, the question that must be considered is whether the present position in India is consistent with justice which is discussed in the following parts.

2.      Illegally obtained evidence: Relevancy and admissibility

Regarding the admissibility of illegally admissible evidence, G. L. Peiris in The Admissibility of Evidence Obtained Illegally: A Comparative Analysis discusses three approaches:[v]

• Illegally obtained evidence cannot be excluded on the ground that it was obtained by illegal action;

• Such evidence is never admissible; or

• Admissibility of such evidence is a matter for the trial judge to decide in his discretion.

The Indian Evidence Act, 1872 does not provide for legally allowed methods or means to obtain such evidence. It provides for general provisions for admissibility which depends upon the relevancy of the evidence. As per the legislative mandate, it is the only criterion which decides the admissibility of evidence. Section 5 of the Act provides that, evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others. The Act does not provide the means adopted to obtain evidence which results into the admissibility of illegally obtained evidence.

The courts have time and again emphasized upon the admissibility of such evidence though with certain caveats. In Bai Radha v. State of Gujarat, it was held that non-compliance with some of the provisions relating to search would not affect the admissibility of the evidence so collected unless a prejudice is created against the accused. In State of Maharashtra v. Natwarlal Damodardas, it was held that even if the search was illegal it would not affect the validity of the seizure and its admissibility in evidence, at the most the court may be inclined to examine carefully the evidence relating to the seizure. In R.M. Malkani v. State of Maharashtra, it was held that the tape-recorded conversation obtained through an eavesdropping device though obtained illegally, is admissible. The Court observed that the police officer is more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the Judge. Just a few weeks back, the Delhi High Court in Deepti Kapur v. Kunal Julka while dealing with matrimonial disputes held that merely because rules of evidence favour a liberal approach for admitting evidence, this should not be taken as approval for everyone to adopt any illegal means to collect evidence, especially in relationships of confidence such as marriage.

As far as evidence illegally obtained by the tax authorities is concerned, there has been a conflict of opinion among various High Courts. The Mysore High Court held that such evidence could not be used but the Allahabad, Madras, and Delhi High Courts took a contrary view. However, clarifying the position of law, Hon’ble Supreme Court in Pooran Mai v. Director of Inspection of Income Tax held that there was no constitutional or statutory bar in using such evidence. The Court held that there is no construction of fundamental rights in the Constitution which can be construed in a manner so as to exclude the evidence obtained in an illegal search. However, it has been argued that the Indian courts have referred to old English case laws which are no longer applicable in the UK.[vi]

3.      Exclusion of evidence and judicial discretion

In Admissibility of illegally obtained evidence, S.N. Jain argues in favour of the application of the American exclusionary rule in India as the safeguards are not enough to deter officials from taking recourse to illegal means in obtaining evidence.[vii] However, he argued that the admissibility of illegally obtained evidence may be left to the discretion of the courts to permit the use of such evidence or not. To ensure effective exclusionary rules and to limit the amount of judicial interpretation that can be used to narrow their scope, it is significant that the legislature drafts clear statutes.[viii] Jain argues that the exercise of judicial discretion in India should be in favour of exclusion on a broader and more liberal basis than that appropriate to English law. He argues that the exclusionary discretion of the court should be restricted to evidence whose probative value is significantly disproportionate to its potential prejudice.[ix] He suggests that the evidence whose probative value is unimpeachable should in no circumstances be excluded at the discretion of the trial judge on the ground that it has been obtained by illegal or unfair means. As Paul Roberts argues in Normative Evolution in Evidentiary Exclusion: Coercion, Deception and the Right to a Fair Trial that what we are really concerned with is wise and well-informed judicial judgement rather than free-floating ‘discretion’.[x]

The Law Commission of India in its 94^th Report discussed the issue in greater detail and concluded that there is need for conferring discretion on the court to exclude evidence obtained illegally or improperly if in the circumstances of the case, the admission of such evidence would bring the administration of justice into disrepute. However, the discretion must be guided by certain factors. The Commission opined that the present position in India under which the legal “relevance” of the evidence of the facts in issue is the principal consideration, cannot be regarded as totally satisfactory. From time to time, cases would come where the illegality or impropriety is so shocking and outrageous that the judiciary would wish that it had a power to exclude the evidence. But the present Indian law has no specific provision recognizing such a power. The major deficiency in the present Indian position is that it reflects a legalistic and statute-oriented approach, which completely shuts out any consideration of deeper human values. The Commission concluded that the need for reform in the law is manifest. At the same time, a provision mandatorily shutting out a piece of evidence because some illegality has been perpetrated in collecting it, would not be advisable.

4.      Interest of the prosecution vs. right of the accused: Reaching a balance

In recent decades, human rights have come to the forefront in criminal justice systems around the world, but at the same time more and more jurisdictions have adopted exclusionary rules. Various countries including Germany, Singapore, Switzerland, Taiwan, and the United States of America have tried to address the issue whether and under what circumstances the use of exclusionary rules can be an effective means for protecting human rights in criminal proceedings.[xi] While every legal system excludes some evidence deemed irrelevant or untrustworthy, the constitutional exclusionary rule is unusual in rejecting highly probative evidence, often with the consequence of nullifying a meritorious prosecution.

Paul Roberts and Jill Hunter argue that victims do not truly get justice when offenders are convicted unfairly as it is trite that the rights and interests of complainants and witnesses must somehow be accommodated, or ‘balanced’, with the rights of suspects and the accused.[xii] The right not to be wrongfully convicted of a criminal offence is surely one of the most fundamental procedural rights, more basic even than the vaunted right to a fair trial.[xiii] In Excluding Evidence as Protecting Rights, Andrew Ashworth argued his ‘protective principle’ as a novel rationale for excluding improperly obtained evidence from criminal trials. In Excluding Evidence as Protecting Constitutional or Human Rights?, Paul Roberts finds Ashworth’s work remarkably far-sighted in anticipating current controversies bearing on the status of constitutional principles and human rights and their implications for the admissibility of evidence in criminal trials.[xiv] He elaborates the protective principle for a post-Human Rights Act era and opens up new the lines of enquiry suggested by Ashworths original conception.

The Law Commission of India in 94^th Report noted that the Indian Constitution did not have any provision that was strictly corresponding to the Fourth Amendment of the US, and as regards the concept of procedure established by law laid down in Article 21 of the Constitution, remained to be spelt out in its application to the law of evidence. In the absence of any legislative mandate regarding the same, there arises an inconsistency in the approach of various benches of the Supreme Court and of the different High Courts regarding the admissibility of illegally obtained evidence including secret evidence vis-à-vis human rights including right to privacy. After the ruling of a constitutional court of the Supreme Court in Justice K.S. Puttaswamy v. Union of India, which held the right to privacy as a fundamental right enshrined under Article 21 of the Constitution, the issue has gained much more relevance.

[i] Donald Dripps, Exclusionary Rule: Origins And Development of The Rule, The Policy Debate, Other Constitutional Exclusionary Rules, Proposals For Reform, https://law.jrank.org/pages/1111/Exclusionary-Rule.html

[ii] Sabine Gless and Thomas Richter, ‘Introduction in Sabine Gless & Thomas Richter’ (eds.) Do Exclusionary Rules Ensure a Fair Trial? A Comparative Perspective on Evidentiary Rules 2 (Springer Open, 2018).

[iii] Niklaus Oberholzer, Grundzüge des Strafprozessrechts (3^rd ed. 2012).

[iv] Loewenthal, Evaluating the exclusionary rule in Search and seizure 9(3) Anglo-American Law Review 238-256 (1980).

[v] G. L. Peiris, The Admissibility of Evidence Obtained Illegally: A Comparative Analysis, 13 Ottawa L. Rev. 309 (1981).

[vi] Talha Abdul Rahman, Fruit of the Poisoned Tree: Should Illegally Obtained Evidence Be Admissible? S-38 PL, (2011).

[vii] S.N. Jain, Admissibility of illegally obtained evidence, 22(3) Journal of the Indian Law Institute 322-327 (1980).

[viii] L. Macula, ‘The Potential to Secure a Fair Trial Through Evidence Exclusion: A Swiss Perspective’ in Sabine Gless & Thomas Richter’ (eds.) Do Exclusionary Rules Ensure a Fair Trial? A Comparative Perspective on Evidentiary Rules 2 (Springer Open, 2018).

[ix] Supra note 5.

[x] Paul Roberts, ‘Normative Evolution in Evidentiary Exclusion: Coercion, Deception and the Right to a Fair Trial’ in Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions 163-193 (Paul Roberts and Jill Hunter eds., 2012).

[xi] Sabine Gless and Thomas Richter, ‘Introduction in Sabine Gless & Thomas Richter’ (eds.) Do Exclusionary Rules Ensure a Fair Trial? A Comparative Perspective on Evidentiary Rules 2 (Springer Open, 2018).

[xii] Paul Roberts and Jill Hunter, ‘Introduction—The Human Rights Revolution in Criminal Evidence and Procedure’ in Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions 1-24 (Paul Roberts and Jill Hunter eds., 2012).

[xiii] P Roberts and A Zuckerman, Criminal Evidence (2nd edn., 2010); L Ellison, The Adversarial Process and the Vulnerable Witness (2001).

[xiv] Paul Roberts, ‘Excluding Evidence as Protecting Constitutional or Human Rights?’ In Principles and Values in Criminal Law and Criminal Justice: Essays in Honour of Andrew Ashworth (Lucia Zedner and Julian V. Roberts eds., 2012).

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ABOUT THE AUTHOR

Shantanu Pachauri

Shantanu is an advocate registered with the Bar Council of Uttar Pradesh. He did his LL.M. in constitutional and criminal law from National Law University, Delhi and completed B.A. LL.B. (Hons.) from National Law Institute University, Bhopal. His research interest lies at the intersection of constitutional and criminal law. He may be reached at https://www.linkedin.com/in/shantanupachauri/.