A quiet revolution has swept through the corridors of Indian law, a profound transformation that began not with a thunderclap, but with the quiet assent to three new legislative acts. Effective July 1, 2024, the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam (BSA) have replaced the colonial-era Indian Penal Code, Code of Criminal Procedure, and Indian Evidence Act. This isn’t just a legal update; it’s a re-imagining of justice for a modern, digital India. At the heart of this epic shift lies one of law’s most enduring puzzles: what do we do with evidence that has been obtained illegally?
The Principle of Relevancy and Procedural Safeguards in the New Regime
Under the former legal system, the admissibility of evidence was governed by a strict principle of relevancy. This meant that as long as the evidence was relevant to the case, it was admissible, regardless of how it was obtained. This approach was cemented in a series of judicial precedents. In the landmark case of Pooran Mal v. Director of Inspection1, the Supreme Court was unwavering, declaring that an illegal search did not render the evidence inadmissible. The court’s message was clear: there was no law to exclude such evidence, and the pursuit of truth in a trial superseded any procedural impropriety. This philosophy was echoed in R.M. Malkani v. State of Maharashtra2, where an illegally recorded conversation was admitted as evidence, reinforcing the idea that the end justified the means. The police, while subject to penalties for misconduct in cases like Dnyaneshwar v. State of Maharashtra3, knew that their ill-gotten gains would not be barred from the courtroom.
This “shallow” reasoning, as one analysis calls it, rested solely on the absence of a specific statutory or constitutional bar. This approach was even criticized by the Tenth Law Commission of India, whose 94th Report in 1983 accurately pointed out that the lack of a specific provision meant that the illegality of how evidence was obtained was of “no consequence”. The Report recommended the incorporation of a new section, Section 166A, into the Indian Evidence Act that would grant courts the discretion to refuse the admission of any illegally obtained evidence if its procurement would disrupt the administration of justice. This critical recommendation, however, was never adopted.
The new regime, while maintaining the core principle of relevancy under Section 5 of the BSA, introduces crucial procedural safeguards that directly address these past deficiencies. Instead of creating an exclusionary rule, the new laws focus on deterring illegal conduct during evidence collection through accountability and technology.
The BNSS mandates the use of technology to ensure transparency and accountability. For example, Section 105 of the BNSS explicitly requires that all searches and seizures must be mandatorily audio-video recorded. These recordings are then to be forwarded to a Magistrate to prevent tampering or falsification. This is a significant departure from the previous lack of a statutory mandate for such recordings.
Section 183 of the BNSS extends this requirement to victim statements, particularly in cases of sexual assault, where videography of the statement is now compulsory.
The BSA then steps into the digital realm, acknowledging the modern reality of evidence. Unlike the old law, which treated electronic records as secondary evidence, the BSA now recognizes them as primary evidence. To ensure their integrity, Section 63(4) of the BSA requires a certificate of authenticity, which must include details such as hash values. This ensures that electronic evidence is both relevant and reliable, addressing issues of admissibility and tampering risks.
The “Fruits of the Poisonous Tree” Doctrine: A Brief Interlude
India has consistently rejected the “Fruits of the Poisonous Tree” doctrine, which is a cornerstone of the American legal system. This doctrine, which originated from cases like Nardone v. United States4, extends the exclusionary rule established in Weeks v. United States5, to exclude not only illegally obtained evidence but also any evidence derived from it. The rationale behind this is to deter law enforcement misconduct. However, even in the U.S., exceptions exist, such as the “good faith” exception established in United States v. Leon6, where evidence obtained illegally is still admissible if police acted on a reasonable, good-faith belief that their actions were legal.
The Indian legal framework, in both its old and new avatars, has chosen not to adopt this doctrine. The focus remains on punishing the individual officer for a procedural lapse, such as in Dnyaneshwar v. State of Maharashtra (Supra), where the court penalized the police for an illegal search but still considered the evidence, rather than excluding the evidence itself. The new laws continue this approach by incorporating procedural safeguards to deter illegalities without a broad exclusionary rule.
Admissibility Of Illegally Obtained Evidence In Indian Judiciary
The question that we are dealing with is not whether an illegally obtained evidence is relevant, but whether it is admissible. The Tenth Law Commission of India submitted a report on illegally obtained evidence in 1983. The Law Commission’s 94th Report accurately pointed out the core issue by stating that “due to the absence of a specific statutory or constitutional provision which provides for excluding particular types of evidence, the fact that evidence was obtained illegally remains of no consequence in regard to its admission at the criminal trial.” As there is no provision governing the same, the question of admissibility of illegally obtained evidence is kept for the courts to decide. The Report identified four different categories of countries and their ways of dealing with illegally obtained evidence:
- First category countries: Illegally obtained evidence is considered admissible because there exists no law that excludes evidence on the ground that it was obtained under an illegal search or seizure, or was otherwise illegally obtained.
- Second category countries: The use of illegal or improper methods in procuring evidence is regarded as relevant to the extent that the court can reject such evidence.
- Third category countries: There exists a specific statutory provision that excludes the illegally obtained evidence.
- Fourth category countries: Exclusion of illegally obtained evidence through constitutional guarantee or the judicial construction of such constitutional guarantee.
According to the Report, India is a first category country. The position of law as to the admissibility of illegally obtained evidence in the Indian judiciary is quite clear. Through a plethora of case laws, illegally obtained evidence is considered admissible in India. However, the police officers or persons who retrieve the evidence by illegal means are subjected to some punishment by way of compensation. The Report recommended incorporation of Section 166A into the Indian Evidence Act, which would grant courts the power to refuse the admission of any illegally obtained evidence, if the court believed that the nature of the means of gathering the evidence would lead to disruption of the administration of justice. This Section was never inserted in the Indian Evidence Act. Till today, the jurisprudence on admissibility of illegally obtained evidence is dictated by case laws.
The Gaping Hole: The Conflict with the Right to Privacy
The new laws’ divergence from an exclusionary rule has created a “gaping hole” in Indian evidence law, particularly in light of the Supreme Court’s landmark ruling in Justice K.S. Puttaswamy v. Union of India7. This judgment, which declared the right to privacy an intrinsic part of the right to life under Article 21 of the Constitution, directly conflicts with the traditional principle of admitting illegally obtained evidence. The Puttaswamy judgment, by overruling M.P. Sharma v. Satish Chandra8, established that the right to privacy extends to protection against unreasonable search and seizure.
This means that the “relevancy” of evidence, which was once the sole test for admissibility, must now be weighed against the violation of privacy that was necessary to obtain it. The new laws, while technologically advanced, have not yet fully addressed this conflict. There is a strong argument that a judicial evolution of a doctrine-like exclusion for privacy breaches is an “inevitable” next step to balance the pursuit of justice with the protection of fundamental rights. The new legal regime, therefore, serves as a crucial first step, but the final jurisprudence on this issue will likely be shaped by the judiciary’s efforts to reconcile statutory provisions with the constitutional mandate of privacy.
Conclusion
In conclusion, the new criminal laws in India mark a significant evolution in the jurisprudence surrounding illegally obtained evidence. The traditional “relevancy-only” approach, cemented by judicial precedents, has been challenged and refined, though not entirely replaced. The new regime, guided by the BNSS and BSA, introduces crucial procedural and technological safeguards, such as mandatory audio-video recordings and the recognition of digital evidence as primary evidence. These measures are designed to deter illegalities from the outset and enhance the reliability of evidence. However, a fundamental conflict remains. While the new laws do not adopt the “Fruits of the Poisonous Tree” exclusionary rule, the Supreme Court’s declaration of the right to privacy as a fundamental right in Justice K.S. Puttaswamy v. Union of India creates a “gaping hole” in evidence law. This constitutional shift means that the relevancy of evidence must now be balanced against the violation of privacy required to obtain it.
Therefore, the ultimate outcome is that the new legal regime, while a progressive step, serves as a crucial foundation. The final and most significant changes will likely come from the judiciary itself, as it navigates the delicate balance between the efficiency of the justice system and the constitutional protection of individual rights. The ongoing evolution of this jurisprudence will likely lead to a more nuanced, case-by-case approach, akin to the principles of fairness and equality of arms applied in other legal domains.
Citations
- Pooran Mal v. Director of Inspection (1974) 1 SCC 345
- R.M. Malkani v. State of Maharashtra AIR 1973 SC 157
- Dnyaneshwar v. State of Maharashtra 2007 INSC 323.
- Nardone v. United States 302 U.S. 379 (1937)
- Weeks v. United States 232 U.S. 383 (1914)
- United States v. Leon 468 U.S. 897 (1984)
- Justice K.S. Puttaswamy v. Union of India AIR 2017 SC 4161
- M.P. Sharma v. Satish Chandra AIR 1954 SC 300
Expositor(s): Adv. Archana Shukla
