Anushka Jain, O.P. Jindal Global Law School
It is important to deliberate whether we as a society have moral limits which value personal liberty and privacy. To what extent are we willing to compromise our morals as well as personal liberty in pursuance of justice? With justice as an end goal if we are willing to compromise the means in which we pursue justice, then is it really justice then? We are faced with the question as to how far should there be discretion with the court in a criminal case to exclude or include evidence that has been obtained illegally or improperly. To decide whether illegally or improperly obtained evidence should be admissible in courts, we will be analysing and critiquing the current law by tracing the trajectory of our Judiciary as well as all these surrounding questions regarding admissibility of illegally or improperly obtained evidence and comparing it with other the law standing in other countries.
Without an express legal or constitutional prohibition against its admissibility, illegally obtained evidence remains admissible in criminal as well as civil trials in India. Illegally or improperly obtained evidence is allowed so long as it is relevant to the facts-in-issue at trial. This view has been followed by both British as well as Indian courts. Even though India recognizes an exception to this admissibility, being the Unfair Operation Principle, it has never been elaborated or actually applied.1 The only exceptions to evidences which when obtained are inadmissible are coded in The Indian Evidence Act, 1872, being evidence obtained which is protected by “spousal privilege” under Section 122, or “state privilege” under Section 123 or even “attorney client privilege” under Section 126 and a few other exceptions as well. The viability of illegally obtained evidence is not mentioned anywhere in the code or even in the Constitution.