Fruits Of The Poisonous Tree - How Indian Evidence Law Makes Custodial Violence Rational
- IJLLR Journal
- Jun 10
- 2 min read
Aarefa Bootwala, BBA LLB, BITS Law School
I. INTRODUCTION
As stated in the Status of Policing in India Report 2025, the National Crime Report Bureau reported that between 2011 and 2022, there were 1,107 deaths in police custody and not a single office was convicted. The same report further notes that out of 394 custodial deaths between 2018 and 2022, only 41 cases were registered against the police, chargesheets were filed for only 5 of those and there were zero convictions. As per the SPIR 2025 survey, more than 70% of the police personnel believed that the police should be able to use force without any punishment and 63% in Gujarat agreed torture is necessary to gain information. These are not statistics of a system that has failed to deter custodial violence but of a system that has never tried.
This article asserts that the most neglected and significant structural reason for this failure lies in the law of evidence. When a legal system excludes evidence derived through torture or unlawful means, it eliminates the investigative utility of such methods as the police cannot rely on the resulting evidence in court. However, the opposite is achieved when a legal system admits such evidence irrespective of the manner in which it was obtained, it effectively rewards constitutional violation with convictions. India, unfortunately, in practice consistently follows the latter. Drawing on Bentham’s deterrence calculus and Bruinsma’s classical theory, it contends that only an exclusionary theory can remove it.
The Indian Evidence Act, 1872 (“IEA”) which is now replaced by the Bharatiya Sakshya Adhiniyam, 2023 (“BSA”) recognizes relevancy as the only criteria for admissibility. The source from which the evidence emerges is legally inconsequential however violative it is to the constitutional rights of the suspect. A confession given under torture is inadmissible but the weapon which a suspect may reveal under torture is admissible. This distinction incorporated in Section 27 of the Indian Evidence Act 1872 and now reproduced without any amendment as Section 23 of the BSA is the explicit apparatus through which law in India converts custodial violence into admissible evidence.
