VOL VIII NLIU LAW REVIEW ISSUE II

A RELOOK AT THE ADMISSIBILITY OF

ILLEGALLY OR IMPROPERLY OBTAINED
EVIDENCE

Paras Marya*

Abstract
This paper deals with the position of law
regarding the exclusion of evidence that has
been obtained illegally or improperly in a
criminal trial. The right to privacy having
been declared a fundamental right by the
Supreme Court comes in direct conflict with
the admissibility of illegally obtained evidence
in India. In fact, Indian courts have
consistently admitted illegally obtained
evidence in criminal trials, unlike other
jurisdictions where such evidence is excluded.
The approach of Indian courts so far has
been, that in the absence of a specific
statutory or constitutional provision which
provides for such exclusion, the fact that the
evidence was obtained illegally is of no
consequence to its admissibility in a criminal
trial. This paper proposes to revisit the
recommendations of the 94th Law Commission
Report, 1983, in light of the right to privacy
being recognised as a fundamental right
under Article 21 of the Constitution. In order
to do so, this paper will first analyse the

*
Paras Marya is a third-year student at National Law University, Jodhpur. The
author may be reached at [email protected].

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current position of law as propounded by the

judiciary, and delve into the rationale for such
pronouncements. Then the author shall
examine the analysis of the Report of 1983,
and also determine whether or not the
recommendations given at that time can be the
solution required today. To conclude, the
paper shall analyse the judgment in Justice K.
S. Puttaswamy v. Union of India and the
impact of the right to privacy on this aspect of
evidence law.

I. INTRODUCTION

The development in the scope of the right to privacy has been very
intriguing. As humanity leaps forward and individualism thrives in
society, the concept of privacy as a legal right emerges to have a
strong presence. This can be seen through the struggle for this right.
The United States was early to lay down the right as a spatial concept
under the Fourth Amendment. Soon this concept broadened to include
other aspects of human life apart from the human body, such as the
family, marriage and personal property. Protection from interference
into these aspects became more and more important. The right to
privacy is the backbone of multiple freedoms enjoyed by citizens
around the world today and has been the foundational argument for
decriminalisation of homosexuality, giving women the right to abort a
foetus, and regulating mass surveillance programs. Therefore, it
becomes equally important to draw the line on the operation of the
right, as no right is ever absolute. This delineation becomes especially
arduous when discussing the admissibility of illegally obtained
evidence in a criminal trial. The basic question that emerges is
whether law enforcement should be allowed to violate the privacy of

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citizens to obtain evidence that may convict them of criminal activity,

as their wrongfulness would not affect the admissibility of the
evidence. This question becomes complicated as individual answers
to the question are subjective and vary according to the degree of the
crime involved. Therefore, it is important that every country clearly
lays down the position of law in this aspect.

The position of law with respect to the admissibility of illegally and

improperly obtained evidence in a criminal trial in common law
countries can be divided into four main categories.1 First, the strictest
approach is adopted by certain countries, where the illegality in the
collection of evidence does not, in the absence of any specific
statutory or constitutional provision, render the evidence legally
inadmissible. Second, where the use of illegally or improperly
obtained evidence is regarded as relevant, and the court, in its
discretion, may regard itself as justified in rejecting such evidence.
Third, wherein due to a specific statutory provision, evidence that is
obtained in violation of such substantive norm is excluded. The fourth
category comprises of countries wherein a constitutional guarantee
excludes certain evidence from use at the trial (for example the Fourth
and Fourteenth Amendment in the case of the United States).

II. POSITION OF LAW IN INDIA

India falls within the first category of common law nations mentioned
above; that have adopted the strictest approach in taking of evidence,
and with an absence of any statutory or constitutional provision that
would exclude illegally obtained evidence, the impropriety of the
evidence does not render it inadmissible.

1
Law Commission, Evidence Obtained Illegally or Improperly, (Law Com No 94,
1983).

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The same is evident from a catena of judicial pronouncements by the

Supreme Court. Pooran Mal v. Director of Inspection of Income Tax2
elucidates this position perfectly. The Supreme Court declined to
issue a writ of prohibition in restraint of the use of evidence gathered
during search and seizure by the Authorities in contravention to
Section 132 of the Income Tax Act, 1961. The Court held that the
Indian Evidence Act, 1872 permits ‘relevancy’ as the only test of
admissibility as per Section 5 of the Act, and secondly, no other
provision of any law excludes evidence on the ground that it was
obtained illegally.3 Further, the Court refused to accept any
constitutional protections that would exclude such evidence, stating as
follows:
“A power of search and seizure is in any system of jurisprudence an
overriding power of the State for the protection of social security and
that power is necessarily regulated by law. When the Constitution
makers have thought fit not to subject such regulation to
constitutional limitations by recognition of a fundamental right to
privacy analogous to the American Fourth Amendment we have no
justification to import it into a totally different fundamental right by
some process of strained construction. Nor is it legitimate to assume
that the constitutional protection under Article 20(3) would be
defeated by the statutory provisions for searches.

It, therefore, follows that neither by invoking the spirit of our

Constitution nor by a strained construction of any of the fundamental
rights can we spell out the exclusion of evidence obtained on an
illegal search.”4

While dealing with the question of admissibility of an illegally

intercepted telephone conversation, the Supreme Court in State (NCT

2
Pooran Mal v. Director of Inspection of Income Tax, (1974) 93 ITR 505 (SC).
3
Id. at 24.
4
Id.

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of Delhi) v. Navjot Sandhu @ Afzal Guru5 stated that the question was
no longer res integra, observing that a tape-record of a relevant
conversation is a relevant fact and therefore is admissible under
Section 7 of the Indian Evidence Act. 6 In this case, the Court relied on
its own previous decision in R.M. Malkani v. State of Maharashtra7
wherein it held that evidence in the form of tape recorded evidence of
a telephonic conversation without the consent of the accused, was
admissible and that illegality in gathering such evidence did not affect
its admissibility. The Court rejected the argument that it was illegal to
tamper with a telephonic conversation, as even if it was illegal, the
admission of the evidence did not become impressible, as long as it
was relevant.8 At the time, an attempt to challenge the evidence under
Article 21 of the Constitution did not succeed, in fact, the Court
stated:

“Article 21 contemplates procedure established by law with regard to

deprivation of life or personal liberty. The telephonic conversation of
an innocent citizen will be protected by Courts against wrongful or
high handed interference by tapping the conversation. The protection
is not for the guilty citizen against the efforts of the police to vindicate
the law and prevent corruption of public servants.”9
The rationale of the Court is therefore clear, the sole criterion for
admissibility of evidence is its relevance and not the procedure or
means through which it was obtained. In the case of R.M. Malkani
however, the Court is unable to identify the logical leap of faith in not
providing the protection to the “guilty”, for how is a public servant or
investigator able to determine the “guilt” of a person and deny him
the personal liberty under Article 21? It would, however, be pertinent
to mention that, the Supreme Court, in People’ Union for Civil

5
State v. Navjot Sandhu @ Afzal Guru, [2005] Cri LJ 3950.
6
Id. at 16.
7
R.M. Malkani v. State of Maharashtra, AIR [1973] SC 157.
8
Id. at 29.
9
Id. at 31.

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Liberties (PUCL) v. Union of India 10 held that telephone tapping

infringed the right to privacy, and laid down guidelines to be followed
in the exercise of state surveillance. Even so, the Court did not decide
on the exclusionary rule in evidence based on the legality of the
methods used to obtain it.

The reasons for the current position of law decided by the Indian
courts are clear. First and foremost, the fact that the Indian law of
evidence is almost entirely codified and categorisation of admissible
and inadmissible evidence is laid down by statute, the courts have not
been inclined to go outside the legislation to determine the question of
admissibility.11 Secondly, the courts have recognised safeguards
required to be carried during investigations under the Code of
Criminal Procedure, 1973.12 Therefore, when questioned on the
admissibility of evidence in breach of such safeguards, the courts are
willing to reprimand the police; however, the admissibility of the
evidence remains unaffected. 13 Further, courts have also relied on the
interpretation and pronouncements of English law since the law of
evidence in India is modelled on the rules of evidence present in
English law.14 In R.M. Malkani’s case,15 the Court gave the same
reasoning and relied on multiple English judgments 16 to observe that
evidence would be admissible even if it is stolen.17 However, the
English law on evidence is now codified under the Police and
Criminal Evidence Act, 1984, under which the court may refuse to
allow evidence if it appears to the court that the admission of the

10
People’ Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301.
11
Pooran Mal v. Director of Inspection of Income Tax, (1974) 93 ITR 505 (SC), 24.
12
§ 100, Code of Criminal Procedure, 1974.
13
Kochan Velayudhan v. State of Kerala, AIR (1961) Ker. 8, 21, 22; Ramrao Ekoba
v. The Crown, AIR (1951) Nag. 237; Lalbahadur Keshi v. State, AIR (1957)
Assam 74.
14
Pooran Mal v. Director of Inspection of Income Tax, (1974) 93 ITR 505 (SC), 25.
15
R.M. Malkani v. State of Maharashtra, AIR (1973) SC 157.
16
Kuruma, Son of Kanju v. R., (1955) AC 197; R. v. Maqsud Ali, (1965) 2 All ER
464; Jones v. Owens, (1870) 34 JP 759; R. v. Leatham, (1861) 8 Cox CC 498.
17
R.M. Malkani v. State of Maharashtra, AIR (1973) SC 157, 30.

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evidence would have such an adverse effect on the fairness of the

proceedings that the court ought not to admit it. 18 In light of the above
analysis, it is pertinent to note the recommendations of the Law
Commission in its 94th Report of 1983.

III. RECOMMENDATIONS OF THE 94TH LAW

COMMISSION REPORT

The importance of the subject matter from a human rights perspective

and the expanding scope of Article 21 of the Constitution of India
were the underlying reasons for the Commission’s effort to examine
legal theory and present its recommendations.19
The Report clearly rejects the consideration that alternative remedies
present to an accused against illegal search and seizure are adequate;
it regards that the practical difficulties for a victim of such search to
pursue sanctions effectively and the tardy process of disciplinary
actions cannot be overlooked. 20 Further, the Report states that one of
the arguments in favour of the exclusionary rule is that of
deterrence.21 The argument of deterrence is essentially that the
exclusion of evidence adequately deters illegal conduct in the
collection of evidence. However, the Commission rightly points out
that such a conclusion will always remain a matter of opinion;
nonetheless, there should be a presumption in favour of the
effectiveness of judicially enforceable sanctions against attempts to
procure evidence illegally. Another argument analysed by the Report
is that of the purity of the judicial process; there is a need to ensure
that there is a deprivation to the wrongdoer of the benefit of his

18
§ 78(1), Police and Evidence Act 1984.
19
Law Commission, Evidence Obtained Illegally or Improperly, (Law Com No 94,
1983) ¶1.4.
20
Id. at 10.4.
21
Id. at 10.5.

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wrongdoing. With respect to Wigmore’s contrary view on the

matter,22 that is, that the court does not condone the illegality but
merely ignores it, the Report criticizes that when the court admits
such evidence it does not merely ignore the illegality of the search
and of such evidence, but also indirectly implicates itself in the
illegality. It is to such a degree, that the court becomes a party to the
procedure which shows disrespect for the judicial process.

In order to arrive at a recommendation, the Commission analysed the

arguments against the exclusionary rule. 23 These are predominantly
the concern of the court to arrive at the truth and that the illegal
acquisition of evidence is a collateral inquiry and does not affect the
logical relevancy of the evidence. Further, there are arguments that
there are other sanctions and remedies that exist against a person’s
illegal acts and would be a reasonable deterrent. Lastly, the report
also states that it would be a grave injustice to a party to be denied the
use of such evidence when they were not involved in the illegality.
These arguments are competing at a principle level with the
arguments in favour of the rule. While the arguments in favour of the
exclusionary rule put weight on the rights of the victim of such search
and the holistic view of justice, the arguments against such rule put
weight on the purpose of the court to arrive at the truth and the rights
of the victim of the alleged crime. If we are to put the two arguments
in a supremely rudimentary form, it can be said that the arguments in
favour of the exclusionary rule are those where the end does not
justify the means and those against such rule are where the ends
justify the means.

At the time of the Report, the Commission found that excluding the
admission of illegal evidence on a constitutional ground based in

22
8 WIGMORE, EVIDENCE 2176 (McNaughten Revision 1961) as cited in Law
Commission, Evidence Obtained Illegally or Improperly, (94th Report, 1983) ¶
10.8.
23
Law Commission, Evidence Obtained Illegally or Improperly, (Law Com No 94,
1983) ¶10.10.

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Article 21 was a question which could not be answered due to the

lack of direct authority on the subject. 24 Therefore, the
recommendations have to be understood with the judicial
pronouncements of that time, namely, M.P. Sharma and Kharak
Singh,25 that there was no fundamental right to privacy under the
Constitution of India, and therefore, a corresponding provision as that
of the Fourth Amendment of the U.S. Constitution could not be read
into it. With respect to Article 21 creating an exclusionary rule of
evidence, the Commission said:
“There is no doubt that this question will arise in courts someday.
When it arises, the courts will be called upon to make a difficult
choice, but they will have a number of models available for concrete
study.”26
The Commission in its Report concluded that there is a need to reform
the current position of law. This was because it felt that the major
deficiency in the present Indian position is that it reflects a legalistic
approach, which would completely shut out any consideration for
deeper human values. Therefore, there ought to be recognised a
power in the court to take into account all these aspects which are of
basic relevance to the administration of justice. 27 Thus the Report
recommended that Section 166A should be inserted to the Indian
Evidence Act.
Section 166A 28 provides the court with the power to refuse to admit
anything in evidence that was obtained illegally or by improper means
if the court is of the opinion that because of the nature of the means
by which it was obtained, the admission would tend to bring the

24
Id. at 10.17.
25
M.P. Sharma v. Satish Chandra, (1954) AIR 300; Kharak Singh v. State of U.P.,
AIR (1963) SC 1295.
26
Law Commission, Evidence Obtained Illegally or Improperly, (Law Com No 94,
1983) ¶10.17.
27
Id. at 11.3.
28
Id. at Ch.10A.

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administration of justice into disrepute. Further, the Section suggests

that the court shall look into the circumstances surrounding the
proceeding while admitting such evidence or refusing to admit the
same. These circumstances would include whether human dignity was
violated during the procurement of evidence, the seriousness of the
case, importance of the evidence, whether there were circumstances
justifying such action, etc. Therefore, through this section, the
Commission attempted at providing discretion to the courts in order to
prevent cases wherein the illegality is so shocking and outrageous that
the judiciary would rather exclude the evidence. However, as
explained above, this analysis of the Indian position and an attempt at
reformation is in the background of judicial decisions denying the
right to privacy and any constitutional safeguard to such search or
seizure. Therefore, the application of the doctrine with respect to the
recent constitutional bench decision of Justice K.S. Puttaswamy v.
Union of India must be examined.

IV. IMPACT OF JUSTICE K.S. PUTTUSWAMY V. UNION

OF INDIA

In the operative order of the judgment in Justice K.S. Puttaswamy v.

Union of India, the Supreme Court held that the right to privacy forms
an intrinsic part of the right to life under Article 21 of the
Constitution, and is hence a guaranteed freedom. All the separate
opinions in the case have unequivocally concluded that privacy forms
a core constitutional freedom and is the structural foundation to other
core freedoms. What has also been rightfully pedestalized is the
concept of consent, and not only in relation to the physical body but
also in relation to personal data and property. 29 In order for the right
to privacy to have any impact on the question of the applicability of

29
Justice K.S. Puttaswamy v. Union of India, AIR (2017) SC 4161, 489.

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the “exclusionary rule”, we would have to look into the scope of the
right to privacy laid down in the judgment.

This scope is anything but narrow, as the right has not been limited to
just dignity or as a derivative right under Article 21. This can be seen
as the right has been extended from person to personal property and
further to personal information voluntarily given to a third party. 30
This means that information given for a specific purpose to the State
can only be used for that purpose and not extend to other areas. When
examining the scope of the right with respect to evidence collection,
multiple case laws from foreign jurisdictions were analysed
throughout in the judgment.
Section 8 of the Canadian Charter of Rights and Freedoms, 1982
states that “everyone has a right to be secure against unreasonable
search and seizure.” While understanding the section, J. Chandrachud
referred31 to Hunter v. Southam Inc.,32 wherein the Supreme Court of
Canada held that the purpose of the section was to protect an
individual’s reasonable expectation of privacy but the same must be
balanced against a “reasonable” search in public interest. While
understanding the United States Fourth Amendment, J. Chandrachud
analysed the “reasonable expectation of privacy” test, wherein, if a
person has exhibited an expectation of privacy, and that such
expectation is “reasonable” according to society, then such an
expectation is protected under the right of privacy. 33 Further J.
Chelameswar stated that there are three aspects of privacy: ‘repose’ or
freedom from unwarranted stimuli, ‘sanctuary’ or protection against
intrusive observation, and ‘intimate decision’ or autonomy with
respect to the most personal life choices. 34 While illustrating
examples of violations of the right in order to establish the scope of

30
Id. at 330.
31
Id. at 99.
32
Hunter v. Southam Inc., (1984) 2 SCR 145.
33
Katz v. United States, 389 US 347 (1967).
34
Justice K.S. Puttaswamy v. Union of India, AIR (2017) SC 4161, 227.

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the right to privacy, stress was laid on the right to privacy with respect
to the State and its intrusion into the body of subjects.35 Under this, he
mentions “telephone tapping” and “internet hacking” by the State in
order to obtain personal data as violating the privacy of the body of its
subjects. Similarly, J. Nariman in his judgment noted that one of the
main aspects of the right to privacy is that of informational privacy
which does not deal with a person’s body but deals with a person’s
mind.36 This therefore recognizes that an individual may have control
over the dissemination of material that is personal to him. It also
follows that unauthorised use of such information may lead to
infringement of this right. As such, the decision of the Supreme Court
in M.P. Sharma,37 wherein it was held that the United States Fourth
Amendment could not be incorporated into the guarantee against self-
incrimination in the Constitution, was overruled. It is pertinent to
mention this analysis by J. Bobde:

“M.P. Sharma is unconvincing not only because it arrived at its

conclusion without enquiry into whether a privacy right could exist in
our Constitution on an independent footing or not, but because it
wrongly took the United States Fourth Amendment – which in itself is
no more than a limited protection against unlawful surveillance – to
be a comprehensive constitutional guarantee of privacy in that
jurisdiction.”38

With such an expansive scope of the right to privacy and multiple

references to the United States Fourth Amendment, it would be
correct to assume that within the right to privacy there exists an
“expectation against unreasonable search and seizure”. However, this
would mean that evidence that is improperly obtained, through an
illegal search, would be tainted, as it would violate a fundamental

35
Id. at 229.
36
Id. at 472.
37
M.P. Sharma v. Satish Chandra, (1954) AIR 300.
38
Justice K.S. Puttaswamy v. Union of India, AIR (2017) SC 4161, 241.

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right guaranteed under Part III of the Constitution. While adjudicating

on the legality of such infringements, the court will rely on the
standard of justness, fairness and reasonability. 39 Accordingly, the
law would have to have a rational purpose, procedural guarantees
against abuse, be proportionate, necessary and infringe the right
minimally. Therefore, at the present stage in order for the State to
continue with relevancy being the only criteria for admissibility, the
above-mentioned test would have to be satisfied.

This judgment, in the absence of further legislation, would leave it to

the courts to balance a well-settled question of law with a violation of
a fundamental right without any “procedure established by law”.
Therefore, the declaration of the right to privacy leaves a gaping hole
in evidence and constitutional law, which requires the attention of the
legislature as well as the judiciary.

V. CONCLUSION

The basis of the present position under Indian jurisprudence is a

legalistic one. Indian courts have continuously rejected arguments
with respect to Article 21 of the Constitution that favour an
exclusionary rule, based on the premise that the right to privacy is not
envisaged in the Constitution and there is no analogous provision of
the United States Fourth Amendment in it. However, with the recent
pronouncement on the right to privacy, this premise is questioned.
The scope of the right to privacy being overarching would mean that
the ‘fruit of the poisonous tree’ doctrine will be applicable to India as
it is in the United States. At the same time, we also have to keep in
mind the provision of restricting the right to privacy under the
concept of “procedure established by law”. However, in the absence

39
Maneka Gandhi v. Union of India, (1978) AIR 597.

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of any established law, there would be a direct application of the

doctrine.
With respect to the recommendation of the Law Commission in the
form of Section 166A,40 it is clear that there is a need for change in
the position of Indian law on this subject, and the recommendations of
the Commission are also well-founded. Section 166A states that in
order to determine the admissibility of evidence, the court shall
consider all circumstances, including the importance of the evidence,
the extent to which human dignity and values were violated in
obtaining it and the question whether there were circumstances
justifying the same action. Such a recommendation strikes balance
between the objective of evidence and the current position of law
along with the changes in the law of privacy. This would also mean
that judges would be the sole authority on the admissibility of
evidence guided by the Section. Such an amendment in the law would
have a tremendous impact not only on the position of privacy law vis-
à-vis the Constitution but also on the practical lives of law
enforcement. This is because such a change in the law, which is
inevitable, will open a pandora’s box given the array of cyber-crime
investigations taking place today. As of now, for law enforcement,
there is only one test of evidence, the test of relevancy. After the
declaration of the law of privacy, the “relevancy” of the evidence will
have to weigh against the violations of privacy needed to obtain it.
There is, therefore, a need to fill the gaping hole that is present today
in the Indian law of evidence. This is also evident from the fact that
the Law Commission itself envisaged the problem at hand when the
scope of Article 21 of the Constitution would expand to include
privacy.41 The legislature must now strike a balance between the
fundamental right to privacy and the conflicting principles of the

40
Law Commission, Evidence Obtained Illegally or Improperly, (Law Com No 94,
1983) Ch.10A.
41
Id. at 1.4.

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admissibility of tainted evidence. The test for this, however, will now
have to take into account Article 21, as illegally obtained evidence
will now be in direct conflict with this fundamental right.

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