-By Shuchi Agrawal
Introduction
The Indian Evidence Act of 1872 does not forbid the examination of illegally collected evidence by the Courts, if it is relevant or establishes guilt or innocence. However, Indian courts have had conflicting opinions on the admissibility and evidence value of illegally collected evidence. Two major doctrines related to this conflict are the ‘Fruit of the Poisonous Tree’ doctrine and the ‘Unfair Operation Principle.’ The ‘Fruit of the Poisonous Tree’ doctrine considers illegally obtained evidence to be inadmissible in court, subject to certain exceptions. On the other hand, the ‘Unfair Operation Principle’ considers illegally obtained evidence to be admissible and allows the Court to exercise its discretion in excluding such evidence if it would lead to unfairness to the accused. It is argued that the ‘Fruit of the Poisonous Tree’ doctrine is a better approach towards dealing with illegally obtained evidence.
The ‘Fruit of the Poisonous Tree’ doctrine was introduced in Nardone v. United States, where convictions were reversed since the evidence against the accused had been gathered by illegal means. Since then, this doctrine has been invoked in multiple cases, including the review petition filed for seeking inquiry into the Rafael deal.
Brief Historical Context
The present conflict is rooted in the criminal justice model which a society may adopt for investigating and punishing offenders. Two such models are the Crime Control Model and the Due Process Model. While the crime control model is aimed at repressing criminal conduct, the due process model is focused on the “reliability of the fact finding process.” Under the due process model, the State prosecutes the accused for breaking the laws of the land, and therefore, cannot itself break laws which it is supposed to uphold. Hence, any illegally obtained evidence cannot be accepted under the due process model.
Historically, the Courts of England have been inclined to the Unfair Operation Principle, with R v. Leatham being an example of the same. However, Indian courts were originally different in their approach to this legal conflict. In Ukha Kolhe v. State of Maharashtra, the Court held that the legislative intent required the due procedure to be followed while collecting evidence. However, soon the Indian courts took a different position and allowed the application of the Unfair Operation Principle in R. M. Malkani v. State of Maharashtra and Pooran Mal v. Director of Inspection of Income Tax (Investigation), New Delhi. However, it is important to note that such judgements were pronounced when the right to privacy was not recognized in India. The circumstances have now changed, as the right to privacy has been recognized as a fundamental right by a Constitutional Bench, in 2018. This implies that it cannot be claimed that no constitutional construction exists against admission of illegally obtained evidence. Moreover, the doctrine that the Indian criminal justice system adopts must not be violative of the right to privacy, else it will be unconstitutional.
The Fruit of the Poisonous Tree Doctrine and the Rule of Law
Relevantly, in Selvi v. State of Karnataka, the Supreme Court, while evaluating the legality of certain tests such as polygraph and narco analysis, remarked that the reliance placed on “short-cuts” would compromise “the diligence required or conducting meaningful investigations.” A similar concern was raised in Baldev Singh,where the Court had observed that the “legitimacy of the judicial process” could be questioned if the Court was seen condoning “acts of lawlessness” done by investigating agencies. Further, they had considered the effect that such condonation would have on the administration of justice, which they regarded as impermissible. Admitting illegally obtained evidence would grant the investigative agencies complete impunity. Further, a potentially higher conviction rate could incentivize their reliance on illegal methods of evidence gathering.
Additionally, in Queen v. Ireland, the Australian High Court had stated that admission of illegally obtained evidence can result in a prejudice against the accused. In R v. Collins the court elaborated on a similar point and held that the disrepute caused by admission of illegally obtained evidence would result in the deprivation of a fair hearing to the accused. Moreover, it has been established that convictions cannot be secured by employing methods which are offensive to a “sense of justice.” This is so, because individuals may be coerced into providing statements which may not be correct or reliable. For instance, in the Central Park Jogger Case, the accused persons had alleged that they been deprived of food and sleep for more than 24 hours and were forced to confess to the crime. In such circumstances, it is important to safeguard the rights of the accused and ensure that the investigative agencies are not allowed to employ extra-judicial methods or torture to obtain information. Notably, even the Rome Statute, which is the governing document of the International Criminal Court, does not allow the admission of evidence which is obtained by “coercion or torture.”
Additionally, in Mapp v. Ohio criticism was levelled against the ‘fruit of the poisonous tree’ doctrine in the argument that it may allow a criminal to go free because of a small error on part of a constable. In response to this argument, Cardozo J. had stated that judicial integrity is an important consideration in such a case and that a government is very quickly destroyed if it fails to follow its own laws or the “charter of its own existence.” Further, the ‘Fruit of the Poisonous Tree’ doctrine is subject to certain important exceptions, such as inevitable discovery, which is applicable in a situation where the police would have made a discovery even without relying upon illegal methods, and where an officer in good faith, believes himself to be authorized to gather evidence. Other exceptions include a situation where a discovery is made by an independent source, and where such evidence is utilized for impeaching the “credibility of the accused” should they “choose to depose.” These exceptions seek to ensure that the doctrine is not used by guilty persons to circumvent legal scrutiny.
Moreover, the Law Commission of India’s 94th Report, had suggested the enactment of a provision which would have allowed courts to decide whether or not they would admit illegally obtained evidence after taking into consideration the “nature of the illegality” and if such admission would cause disrepute to the “administration of justice.” Further, in Umesh Kumar v. State of A.P. it was opined that courts should exercise their discretion in disallowing evidence “in a criminal case if the strict rules of admissibility would operate unfairly against the accused.” However, the word “unfairly” is subjective and no judgement has established the limits of its interpretation.
Conclusion
Thus, it is contended that admission of illegally obtained evidence would not only deprive the accused of a fair trial but would also, in effect, condone the illegal actions of the investigative agencies which would be violative of the fundamental principles of the due process model. The condonation of illegal actions on part of the State would have enormous potential for abuse and would grant the investigative agencies complete impunity. Furthermore, the State cannot be allowed to “break the law in order to secure a conviction.” The methods adopted to gather evidence must not be questionable, else the “legitimacy of the judicial process itself” can be questioned. More fundamentally, the Fruit of the Poisonous Tree doctrine restrains the investigative agencies from breaking the laws and violating people’s rights in their search for evidence. In addition to this, privacy and dignity are fundamental rights under Art. 21 of the Constitution, and are considered to be “inherent in a human being.” Consequently, the investigative agencies cannot be allowed to violate these rights of an individual in order to secure evidence or a conviction. Thus, the Fruit of the Poisonous Tree doctrine is a better approach towards dealing with illegally obtained evidence.
[The author, Shuchi Agrawal, is a 3rd year student of B.A. LL.B. at Jindal Global Law School.]