Admissibility of illegally obtained evidence in India: 'Fruit of the Poisonous Tree'?

A point of contention in legal systems across the world is whether illegally obtained evidence should be admissible in a court. While some jurisdictions permit such evidence to be admitted, others regard it to be tainted and hence inadmissible. This doctrine is known as the "Fruit of the poisonous tree", which prevents the use of illegally obtained evidence and if evidence is tainted by its illegal source, then anything gained from it is also tainted. This rule is also called the Derivative Evidence Doctrine.

The term "poisonous tree" was first coined by Justice Frankfurter in the United States in 1939 in Nordone v. United States [308 U.S. 338 (1939)], where the court held some evidence to be inadmissible since it was obtained through illegal wiretapping. This doctrine was later applied in Wong v. Sun [371 U.S. 471 (1963)], where the court held some evidence to be inadmissible since it was obtained through illegal searches and arrests. The "poisonous tree" represents the illegal method of obtaining evidence (i.e., arrest or seizure), while the "fruit" symbolises the tainted evidence obtained from it.

In India, however, this doctrine has been applied more flexibly. Courts often admit evidence obtained through illegal searches and seizures, and similar methods, provided it is shown that the evidence is relevant to the matter in issue and genuine. Under S.2(15) of the Bharatiya Nyaya Sanhita 2023, the word "illegal" is applicable to everything which is an offence or prohibited by law or which furnishes a ground for civil action. Accordingly, evidence obtained by committing an offence or an act which is prohibited by law, or which furnishes a ground for civil action can be said to be obtained illegally. This article explores the development and evolving jurisprudence surrounding this doctrine in India.

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Rules governing admissibility of illegally obtained evidence

The Indian Evidence Act 1872 ("Evidence Act") was replaced by the Bhartiya Sakshya Adhiniyam 2023 ("BSA") with effect from 1 July 2024. The Evidence Act did not bar the admissibility of illegally obtained evidence. S.5 of the Evidence Act contemplated that evidence could be given on relevant facts as mentioned in S.6 to S.16 of the Evidence Act. This position continues to operate under the BSA as S.3 of the BSA mirrors S.5 of the Evidence Act. Under the BSA, evidence can be given on the relevant facts mentioned in S.4 to 14 therein. Accordingly, in India, the relevance of evidence is the only test for determining whether it is admissible. The BSA does not explicitly exclude the admissibility of illegally obtained evidence. The legal principles concerning the admissibility of illegally obtained evidence have been developed by the courts through its decisions over time.

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Precedents on admissibility of illegally obtained evidence ?

In Ulka Kolhe v. State of Maharashtra [AIR 1963 SC 1531] the Supreme Court disallowed a blood sample of the accused to be admitted in evidence as the blood sample was not collected as per the procedure laid down under the law. A decade later, the Supreme Court's landmark judgment in RM Malkani v. State of Maharashtra [(1973) 1 SCC 471] recognized that even if some evidence is illegally obtained, it is admissible provided it is relevant to the matters in issue and is free from tampering. However, the Court held that it could disallow evidence if strict rules of admissibility would operate unfairly against the accused. In that case, the Supreme Court addressed admissibility of a conversation between two parties which was recorded through a tape recorder without one party's consent. The conversation was held to be admissible in evidence as it was relevant to the matter in issue, there was no dispute as to the identification of the voices, and the conversation of the accused was voluntary and not extracted under duress or compulsion. The accused had been given an opportunity to test the genuineness of the conversation. It was further held that Article 21 of the Constitution was not violated as it could not be said that the conversation was recorded unlawfully. This approach laid a foundation for the admissibility of illegally obtained evidence subject to certain safeguards.

Shortly thereafter, in Pooran Mal v. Director of Inspection (Investigation) New Delhi and Others [(1974) 1 SCC 345], the Supreme Court examined the admissibility of evidence obtained pursuant to a search and seizure operation conducted by the Income Tax authorities, which was alleged to be illegal. The Court held that the Evidence Act considers relevance as the only test of admissibility and does not exclude relevant evidence on the ground that it was obtained under an illegal search or seizure. The Court held that evidence is admissible if there is no prohibition in the Constitution or other laws.

This doctrine is also applicable to matrimonial matters. In Deepti Kapur v. Kunal Julka [2020 SCC OnLine Del 672], the Delhi High Court considered whether a Compact Disc (CD) containing an audio-video recording of the wife’s conversation with a friend, allegedly recorded by a CCTV camera secretly installed by the husband, could be admitted as evidence. Apart from the principles of law of evidence, the High Court also considered S.14 of the Family Courts Act 1984 which empowers a Family Court to receive evidence which would assist the court to deal effectually with a dispute, whether the same would be otherwise relevant or admissible. The Court, taking note of the Supreme Court judgment in Pooran Mal held that excluding such evidence from admission in Family Court would render S.14 of the Family Courts Act 1984 ineffective. While a litigating party has a right to privacy, that right must yield to the right of the opposing party to bring relevant evidence to court to prove its case for a fair trial. Hence, the Court held that the evidence cannot be ignored only because it violates privacy.

In Yashwant Sinha v. CBI through its Director [(2019) 6 SCC 1] the Supreme Court considered whether it should permit certain documents to be placed on record in relation to an agreement between India and France relating to the Rafale deal of purchase of fighter aircrafts. The documents had been published in a leading newspaper on different dates. The State authorities contended that the documents were unauthorisedly accessed from the records of Ministry of Defence and their use before the Supreme Court was violative of the Official Secrets Act 1923 and the concept of privileged documents under the Evidence Act. The Supreme Court rejected the contention based on the law laid down in Pooran Mal. It can be seen from the above that Indian Courts have generally permitted illegally obtained evidence to be admissible provided it is relevant and genuine. Nonetheless, there are a few exceptions where courts have excluded tainted evidence.

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Exceptions to the rule on admissibility of illegally obtained evidence

In State of Punjab v. Baldev Singh [(1999) 6 SCC 172], the Supreme Court held that illegally obtained evidence cannot be allowed to be admitted in cases under the Narcotic Drugs and Psychotropic Substances Act 1985 ("NDPS Act"). The Court held that an article recovered from a person in violation of the safeguards contained in S.50 of the NDPS Act (procedure for searches) cannot be used as evidence of unlawful possession of contraband. The Court held that Pooran Mal ratio cannot be applied to items seized during a search conducted in violation of S.50 of the NDPS Act and therefore cannot be used as evidence of unlawful possession of the illicit article and evidence obtained without following the said procedure was inadmissible as it violated the accused's right to fair trial.

A similar exception was made by the Supreme Court regarding the legality of tests like polygraph and narcoanalysis in Selvi v. State of Karnataka [(2010) 7 SCC 263]. The Court held that evidence obtained through such measures cannot be admissible since it is directly in contravention of the right against self-incrimination. The Court held that if such "voluntary" statements are given weightage, then that may lead investigators to compel people to give information through coercion or threats and this will compromise the diligence required for conducting meaningful investigations.

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Admissibility of illegal evidence in Arbitrations

The Arbitration and Conciliation Act 1996 ("AC Act") does not address the issue of admissibility of illegally collected evidence. The AC Act provides that the tribunal shall not be bound by the Code of Civil Procedure 1908 ("CPC") and Evidence Act and the tribunal has the power to determine the admissibility, relevance, materiality, and weight of any evidence.

The Supreme Court in SREI Infrastructure Finance Ltd v. Tuff Drilling Pvt Ltd (2018) 11 SCC 470] held that though the tribunal is not bound by the rules of procedure in the CPC and Evidence Act, it is not incapacitated in drawing guidance from those rules. Taking this one step further, the tribunal therefore has the discretion to determine relevance and admissibility of illegally collected evidence.

The rules framed by leading institutions of arbitration such as the Indian Council of Arbitration (Rule 52), Mumbai Centre for International Arbitration (Rule 25) and Delhi International Arbitration Centre (Rule 25) are silent on the admissibility of illegally collected evidence. However, these empower arbitrators to determine the relevance and admissibility of evidence. This implies that arbitrators, just like courts, have the discretion to rule on the relevance of illegally collected evidence and determine admissibility, and in doing so, arbitrators will be guided by well settled principles of law as laid down by courts on the issue of illegally collected evidence.

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Comment

Indian Courts primarily focus on the relevance and genuineness of evidence rather than the way it has been obtained. If the evidence is relevant and its production in court does not impinge upon the fundamental rights of the opposite party (such as right to fair trial and right against self-incrimination) or it has not been collected in contravention of statutory procedure, it is generally admissible. The law laid down in RM Malkani and Pooran Mal has stood the test of time even though these judgments were rendered much before the right to privacy was recognized as a fundamental right by a nine-judge bench of the Supreme Court in KS Puttaswamy v. Union of India [(2019) 1 SCC 1]. The decision in KS Puttaswamy did not alter the principles of admissibility of evidence and in fact the test laid down in Pooran Mal was followed in Yashwant Sinha which post-dates the Puttaswamy judgment.

The Delhi High Court in Deepti Kapur observed that the test of ‘relevance’ is only a threshold test which ensures that a party can ‘bring’ evidence to court. It does not bind the court to treat such evidence as proof of a fact in issue, and merely because a court allows such evidence to be admitted does not absolve the person who has illegally collected it from civil or criminal liability. Courts can disallow evidence obtained illegally and impose liability on the party adducing such evidence. ????????????????

The 94th Law Commission Report published in the year 1983 mooted the introduction of a provision in the erstwhile Evidence Act that would give autonomy to the courts while deciding admissibility of illegally collected evidence. This recommendation is yet to see the light of the day and it is noteworthy that the recently enacted BSA does not contain any provision to deal with illegally collected evidence. In the absence of any statutory framework, Indian courts continue to follow the principles laid down in RM Malkani and Pooran Mal while considering illegally collected evidence. It remains to be seen whether the recommendations of the 94th Law Commission Report will be implemented, and the legislature will recognize certain grounds that will aid the court in ascertaining the admissibility of illegally obtained evidence.