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A Study on the Admissibility of Evidence Obtained by Unlawful Means.

A Study on the Admissibility of Evidence Obtained by Unlawful Means in Indian Courts in view of Right to Privacy as a Fundamental Right

Criminal justice, as a component of our country’s justice delivery mechanism, has a profound effect on our citizens. A defendant’s destiny is determined by the judiciary’s decision, and the result of the case has an effect on his livelihood and liberty. Thus, a reasonable and impartial trial is a critical privilege that must be carried out in accordance with the standards of law and justice as well as the applicable procedural laws. While Indian laws specify a protocol, the attitude has been such that, in certain instances, the correctness of the means has been sacrificed in order to achieve the desired outcome. The researcher explores India’s prevailing stance on the admissibility of information collected illegally, noting the importance of safeguarding against illicit means of evidence extraction but still recognizing the right to privacy as a constitutional right.

Pooran Mal v. Director of Inspection (Inv.) is an important case to remember in order to grasp the situation in India. In this situation, the Supreme Court declined to grant a writ of prohibition prohibiting the entry of evidence obtained by authorities by search and seizure in violation of Section 132 of the Internal Revenue Code. This rejection was based on the court’s observation that Section 5 of the Indian Proof Act, 1872 establishes relevancy as the sole criterion for admissibility and that no other legislation or regulation expressly allows for the removal of evidence based on the illegality of the manner through which it was collected. The court has declined to consider any procedural safeguards that would prevent such information from being used, arguing that “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 for importing 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.”

Citizens have the right to privacy in their houses, free from arbitrary and unjustified searches and seizures. If unlawfully obtained evidence is admitted in courts, in violation of that right, then it would, in effect, be to “grant the right, but in reality, to withhold its privilege and enjoyment.” “Coerced confessions, wiretapped conversations, sting operations, illegal search, violating the body of a person, statements extracted during a period of unnecessary delay in bringing a suspect before a magistrate” are several unethical methods to collect proof, and this unethical method is included in the “poisonous tree.” proof collected by the use of such methods is referred to as “fruit of the poisonous tree.”


The Indian legal position has primarily been that, in terms of the illegality of searching for and collecting proof, the unlawfulness would not invalidate the arrest. This notion was affirmed by the Supreme Court in the case of Radha Kishan v. State of U.P, where it was stated that if a request for proof is made in violation of Sections 165 and 103 of the Criminal Procedure Code, the individual being sought may only refuse, and the court can look into the evidence with greater caution. There are no repercussions that can be more serious than this.

Additionally, the Supreme Court held in Magraj Patodia v. R.K Birla and Ors. that “obtaining a text by illegal or unethical means does not exclude its admissibility, given its genuineness and relevance can be established.” Thus, although the court may recognize the circumstances surrounding their production before the court, the illegality or improperness of the manner in which the proof was obtained has a little precise bearing on the evidence’s importance or significance. It was opined that such facts should be reviewed meticulously and that an investigation should be conducted to ascertain that such illegal tactics were used to procure the evidence in question without observing proper legal procedure. This medium, though, would become a distinct concern that would not interfere with pending trial proceedings.

The police used an eavesdropping system to tape-record a conversation between the accused and a third party in the critical case of R.M. Malkani v. State of Maharashtra, in which the former reportedly requested a bribe from the latter. The accused said that he should not be prosecuted for theft and punished based on testimony that was collected unlawfully. The evidence was accepted by the court, although it was noted that “improperly gathered evidence is more likely to be treated with care and caution by the Judge,” and that “the Police Officer is more likely to act reasonably if improperly obtained evidence is liable to be viewed with care and caution by the Judge.” In the case of Bai Radha v. State of Gujarat, the court softened its general position in favor of the victim, stating that unlawfully acquired evidence is admissible until it causes prejudice to the accused and that such proof must be treated with scrutiny, consideration, and caution.


It has been found that Indian courts place a higher priority on the relevance of testimony than on the origins of that proof. When it comes to resolving lawsuits, the general rule is that judges consider the rules of the Indian Evidence Act to be comprehensive and are unable to move beyond them. Indian judges have repeatedly focused on specific English case laws that are no longer valid in England due to their hesitation. Fearing the release of criminals on technicalities, Indian courts have developed a potentially dangerous precedent. Since unlawfully acquired information is admissible, the police are no longer motivated to follow proper protocol strictly, and the courts have turned a blind eye to this


Nevertheless, there are several significant decisions in which courts have disallowed testimony gathered illegally. This more stringent standard of admissibility is extended where the proof appears to behave unlawfully against the defendant. This standard of unfairness has not been stated expressly in any precedent but rather is determined by the facts of each case. This scheme is comparable to the United Kingdom’s “Unfair Operation Principle,” which forbids the admission of facts that contradicts a case’s fundamental justice.

In Selvi and Others v. State of Karnataka, the Supreme Court addresses and interprets Article 21’s right to life and personal liberties and Article 20(3)’s right against self-incrimination when determining the legality of scientific examinations such as polygraphs and narco-analysis. This research is conducted in view of the method and procedure used by criminal agencies to obtain information that may result in a breach of constitutional rights. The court concluded that using a “shortcut” approach to performing content inquiry results in a reduction in diligence. This justification implies the rejection of proof gathered in violation of the Constitution. Article 21 respects the link between the right to a fair hearing and the right from self-incrimination, as shown in this situation. Forcing an individual to submit to either of the above procedures breaks the standard of “substantive due process,” which must be followed to protect personal liberty. It was noted that “compulsory administration of these procedures constitutes an unjustified interference into an individual’s mental privacy, and may constitute barbaric, inhuman, or degrading care.” The general interest cannot be used to excuse the abridgment of human rights.

Additionally, in People’s Union for Civil Liberties v. Union of India, the Supreme Court ruled that wiretapping was a “significant violation of an individual’s privacy.” The court expressly recognized privacy as a necessary component of the universal right to life protected by Article 21 of the Constitution. This also conforms to Article 17 of the International Covenant on Civil and Political Rights (ICCPR), which India has ratified. The privilege, though, is only enforceable against State Acts, not against private individuals. Additionally, an individual exercising their right to freedom of speech and expression when on the phone will constitute a violation of Article 19(1)(a) of the Constitution unless the tracing of these calls by state officials or government departments meets the test of reasonableness, in which case the restriction on the fundamental right may be rendered under Article 19. (2).

With these clauses in mind and unable to abolish the procedure of phone tapping entirely, the Supreme Court released instructions for the government to obey in order to mitigate the law’s harshness. These rules specify who can tap phones and in what conditions this may occur. The court delegated the authority to compel phone tapping to the Union Home Secretary and his state colleagues. Additionally, the court clarified that the government must establish that the requested details cannot be accessed by any other method to review the legitimacy of phone tapping in the future, the court mandated the formation of a high-level commission.

In terms of these decisions, courts now have the freedom to delete proof under Section 5 of the Evidence Act by balancing it against the Constitution’s Articles 21 (Right to Privacy) and 20(3) (Right against self-incrimination). This results in a situation comparable to those seen in the United States, where information gathered illegally is essentially omitted, relying on the values of judicial honesty, discipline, security, and reliability.


The 94th Law Commission Report was written with a human rights lens in mind, and the current legislative protections under the Indian Proof Act relating to the unlawfulness of improperly collected evidence were analyzed in light of the broad reach of Article 21 of the Constitution and the rights it aims to protect.

  • The Courts determined that the current recourse available to an individual who is subjected to an unlawful search and seizure is insufficient. Additionally, the study argues that the primary justification the exclusionary rule should be adopted in Indian court procedure is to serve as a barrier to an unlawful proof gathering. The Commission argues that legislation can be amended to provide judicially enforceable penalties regarding efforts to obtain evidence unlawfully.

  • The Commission’s study further examines the transparency of the legal procedure. It believes that there is a need to ensure that the wrongdoer is not rewarded for illegally collecting proof.

  • The Report states that while the arguments against the exclusionary rule emphasize the importance of the court determining the truth and the rights of the victim of the alleged crime, the arguments for its implementation emphasize the rights of victims of illegal search and seizure, as well as violations of privacy, faith, and confidentiality, among other things. As a result, one side asserts that the results justify the means, while the other contends that the ends do not justify the means.

  • The Report concluded that the legislation is in desperate need of change, as it represented a legalistic mindset deprived of any greater regard towards human principles.

  • As a result, this Report proposed amending the Indian Proof Act to include Section 166A, which would empower courts to decline to admit evidence collected unlawfully or inappropriately if the court concluded that the methods used to procure the evidence would jeopardize the administration of justice. Additionally, the Section will advise courts to consider the circumstances underlying the admission or refusal of proof, including the significance of the evidence, the gravity of the matter, and whether the circumstances warranted the decision. As a result, this Section will aim to empower courts to determine if the illegality is so surprising and outrageous that the facts can be excluded.


An in-depth examination of the situation in India with regard to the admissibility of illegal information reveals an urgent need for preventive legislative safeguards to preserve citizens’ privileges and deter officials and institutions from utilizing illegitimate methods to obtain evidence. There are various explanations for India’s current State – a lack of citizen diligence, a lack of support by institutional institutions, a misuse of authority by police officers, and a concern that judges would release the culprit on technicalities. If not, strictly speaking, the exclusionary rule may be applied in India by giving courts the right to apply it based on the facts of the event. This must not be achieved arbitrarily but with the aim of striking a compromise between the right to privacy and the critical nature of justice delivery. To address the question of criminally acquired proof being admissible in Indian courts, the researcher makes the following recommendations:

  • India shall follow the exclusionary concept in accordance with existing provisions and safeguard recognized privileges. Exclusion of facts obtained illegally would safeguard the courts’ dignity since courts would have the authority and responsibility to fail to tolerate unethical acts. Already, there are instances where the criminal activity is so disturbing that the court will rule that admitting the facts would be unfair. If judges are not allowed to remove information gathered improperly, unethical acts by investigating authorities and enforcement personnel will be excused, and they will never be challenged or cross-checked for their actions, nor will they be deterred from doing so in the future.

  • But, in some instances, where illegally acquired testimony is not allowed at trial, gross injustice can be perpetrated, diminishing public confidence in the courts as protectors and deliverers of justice. The primary shortcoming of the current Indian position is that it represents a statute-driven strategy that often precludes recognition of more profound human principles. As a result, courts must be given the freedom to enforce the exclusionary provision in accordance with the evidence of the case and the conditions necessary to strike a compromise with the interests of the convicted and the survivor. Additionally, the legislation must be amended to account for the same in order to ensure greater compliance. Additionally, the 94th Law Commission Report’s findings must be reconsidered.

Legal References (Manupatra Citations):-

  1. Pooran Mal v. Director of Inspection (Inv.) - MANU/SC/0055/1973

  2. Dollree MAPP, etc. vs. OHIO - MANU/USSC/0108/1961

  3. Andrew R. MALLORY vs. UNITED STATES of America - MANU/USSC/0034/1957

  4. Radha Kishan v. State of U.P - MANU/SC/0146/1962

  5. Patodia v. R.K Birla and Ors. - MANU/SC/0322/1970

  6. R.M. Malkani v. State of Maharashtra - MANU/SC/0204/1972

  7. Bai Radha v. State of Gujarat - MANU/SC/0041/1968

  8. Selvi and Others v. State of Karnataka - MANU/SC/0325/2010

  9. People’s Union for Civil Liberties v. Union of India - MANU/SC/0149/1997


Abhijeet Kumar Singh

8th Semester

Kalinga University, Raipur

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