Rethinking the ‘Fruits of the poisonous tree’ doctrine: Should the ‘ends’ justify the ‘means’?

“If I want to deprive you of your watch, I shall certainly have to fight for it; if I want to buy your watch, I shall have to pay for it; and if I want a gift, I shall have to plead for it; and, according to the means I employ, the watch is stolen property, my own property, or a donation. Thus, we see three different results from three different means. Will you still say that the means do not matter?”

— Mohandas Gandhi

Picture this: A police officer illegally breaks into a house belonging to a suspect (in an incident unrelated to any investigation) but stumbles upon a crucial piece of evidence (say, a blood-stained knife which looks like a murder weapon, or a forged letter of credit). Now, there’s no doubt that this rather enterprising police officer has committed a crime (housebreaking/trespass, amongst others) but would the evidence seized still be admissible in a court of law? Or would it be termed what we lawyers call the ‘fruits of a poisonous tree’ and eschewed from consideration being inadmissible? Is it true that, even if something is admittedly stolen, it is still admissible in evidence?

The short answer is Yes and this is precisely why the authors write this column. There is nothing in the Evidence Act, 1872[1] (“the Evidence Act”) forbidding the courts from looking at an illicitly obtained piece of evidence if it is otherwise relevant to the matter or goes on to establish the guilt or prove innocence. The Courts in India, as we shall shortly see, have time and again held that illegally or improperly obtained evidence is not per se inadmissible.

There are various ways in which evidence can be obtained illegally. Some of the common instances of illegally obtained evidence are:

Phone tapping/recording, except in accordance with law;
Illegal search and seizure;
Forced narcoanalysis;
Recording activities using secret cameras.

These instances are more common than one possibly imagines. This happens primarily because of:

A general attitude of disregard of procedures and due process guarantees;
The abysmal quality of our investigation;
Courts’ reluctance in excluding such illegally obtained evidence for the fear of letting a guilty person go scot free on account of what is perceived to be a mere technicality.

The perils of accepting the fruits of a poisonous tree are, therefore, very real. Other jurisdictions have moved away from the principle, either totally or, at any rate, substantially diluted it. Throwing out ‘illegally obtained evidence’ would undoubtedly incentivize the police in improving their methods and investigating in accordance with the law. It would also protect due process rights, personal liberty and check police arbitrariness.

In this background, the authors argue that there is a serious need to rethink the courts’ view on ‘admissibility of illegally obtained evidence’. The authors argue that this ‘ends justify the means’ approach is capable of grave prejudice and is largely responsible for the abysmal quality of investigations in the country and a serious reconsideration is needed.

Evolution of jurisprudence on the admissibility of illegally obtained evidence

Throughout history, the dominant approach of the judiciary has been not to exclude evidence on the ground of it being procured through illegal means. Evidence is weighed in a court based on its relevancy/probative value, and irregularity or impropriety in the method of procuring said evidence does not, by itself, make the evidence inadmissible.

One of the oldest cases on the question of admissibility of illegally obtained evidence is R v. Leatham [2]. This was a case of allegations of corrupt practices, heard before a Commission appointed under the Corrupt Practices Prevention Act, 1854. A letter written by the person suspected of bribery to his agent was produced by the agent. On information being subsequently filed, this letter was called for and produced by the secretary of the Commission. An objection was raised concerning the admissibility of the letter because it had been discovered in consequence of an inadmissible statement made by the accused.

In this background, Crompton, J. said, “It matters not how you get it; if you steal it even, it would be admissible” and the letter was admitted in evidence.

Closer to home, in India, we seemingly started off on the right track and, at least initially, did not follow the dictum of R v. Leathem. In Ukha Kolhe v. State of Maharashtra[3], the Court had the occasion of dealing with this issue; the question before the Court was: the admissibility of a blood sample in a case where the procedure for testing the blood sample was not followed and given this illegality – the Court excluded the results of the blood test, holding that, it is clear that the legislative intent was that the prescribed due procedure must be followed for collection of blood samples, and there can be no other way of collecting evidence other than what is specifically laid down. The Court ruled that the evidence cannot be held admissible when the due procedure has not been followed. To come to this conclusion, the Court drew strength from the landmark case of Nazir Ahmad v. The King-Emperor [4]where it was held, “… where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden…”

Indian courts’ shift to a more consequentialist approach: ‘the tree may be poisonous but the fruit is fine,’ in other words: ‘the ends justify the means’

The judicial policy of exclusion of illegally obtained evidence was short-lived. In R. M. Malkani v. State of Maharashtra[5], the Court admitted illegally obtained evidence. In this case, the police had fixed a tape-recording instrument to a telephone with the consent of only one of the parties to record the conversation, however, the other side contended that the tape-recorded conversation had been procured through illegal means. In this background, it was held that “even if evidence is illegally obtained it is admissible”.

Similarly, in Poorna Mal v. Director of Inspection of Income Tax (Investigation), New Delhi[6], while ruling on the question of admissibility of material seized in a search, alleged to be vitiated by illegality, the Court held that “unless there is an express or necessary implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out”.

In State of M.P. through CBIv. Paltan Mallah [7] , it was held that “the evidence obtained under illegal search could still be admitted in evidence, provided, there is no express statutory violation or violation of the constitutional provisions”. The Court also went on to say that “The general provisions given in the Criminal Procedure Code are to be treated as guidelines and if at all there is any minor violation, still the court can accept the evidence and the courts have got discretionary power to either accept it or reject it.”

It is clear that, even if a piece of evidence is procured by improper or illegal means, there is no bar to its admissibility if it is otherwise relevant and its genuineness is proved. This is the view that courts in India have taken. If the evidence is admissible, it does not matter how it has been obtained. The ends do justify the means. This consequentialist approach is deeply troubling. Indian courts seem to be unduly moved by the fear of letting the guilty escape on account of a technicality. But in doing so, the courts have set a very dangerous precedent and there is no incentive anymore for the police officers to comply-with, much less improve, legal methods. These decisions have been used over the years to turn a total blind eye to the most serious procedural transgressions by the police in the collection of evidence.

Departures from the consequentialist approach

There have been some cases, however, where the courts have disallowed illegally obtained evidence, if, in the given case, the strict rules of admissibility would operate unfairly against the accused.

In Umesh Kumar v. State of A.P.[8], for instance, a complaint with supporting documents was sent to the Secretary, Union of India written by a Member of Parliament seeking an enquiry against the then, DG, alleging that he had disproportionate assets in the name of his wife and her associates. Later, it was known that the complaint was not sent by the Member of Parliament and, on an enquiry, it was found that the supporting documents annexed with the complaint were obtained by one Y on the instructions of a senior officer. On an FIR being filed and subsequent enquiry, a charge-sheet was filed against another person named Z. Z approached the Supreme Court for quashing of the charge-sheet against him; in this background, a question arose concerning the complaint against the DG and the Court held that, even though the complaint was false, the documents annexed with the complaint, though illegally collected, were not fabricated and, therefore, could be taken note of. It being the settled legal position that “even if a document is procured by improper or illegal means, there is no bar to its admissibility if it is relevant and its genuineness is proved. If the evidence is admissible, it does not matter how it has been obtained.”

However, what is important is that the Court also went on to say: “However, as a matter of caution, the court in exercise of its discretion may disallow certain evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. More so, the court must conclude that it is genuine and free from tampering or mutilation…”

What exactly would operate “unfairly” against the accused is a fact-intensive exercise and no Indian judgment has laid down the precise contours of this exception. This exception seems to have been inspired by the “Unfair Operation Principle” in UK which prohibits admission of evidence if, in the given case, its reception runs contrary to the principles of basic fairness. The principle gives courts the discretion to decide, on a case to case basis, as to what would operate fairly or unfairly against the accused, and in appropriate cases, exclude such evidence.

The Supreme Court in Selvi v. State of Karnataka[9], while testing the legality of scientific tests like polygraph or narcoanalysis, made some interesting observations in this regard. The Court opined that if involuntary statements were given weightage during a trial, the investigators might feel incentivized to, “compel such statements – often through methods involving coercion, threats, inducement or deception.” In the view of the Court, the right against self-incrimination served as a safeguard against torture and other methods that could be used to elicit information and the exclusion of such testimonies was important as otherwise, investigators will rely more on such violative methods instead of following the due process of law and this would be against the protection against self-incrimination granted by the Constitution. The Court remarked, “The frequent reliance on such `short-cuts’ will compromise the diligence required for conducting meaningful investigations.” The Court seemed to suggest or at least presage exclusion of unconstitutionally obtained evidence.

Selvi[10] was also observed by one of the most celebrated and landmark judgment of recent times; the nine-Judge Constitution Bench judgment in K.S. Puttaswamy v. Union of India[11] which recognised the right to privacy as a fundamental right, entitled to protection as a part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. The Court also overruled certain judgments which held contrary views like KharakSingh[12] which was relied on in R.M. Malkani[13].

Taking this step of recognition of the right to privacy as an inherent fundamental right further, the Bombay High Court in Vinit Kumar v. CBI[14], set aside certain interception orders and directed the destruction of copies of the intercepted messages. Here, the issue was whether the orders which directed interception of telephone calls were ultra vires of Section 5(2) of the Telegraph Act, 1885[15] and the Rules and whether they were violative of the petitioner’s fundamental rights.

The petitioner relied heavily on a judgment of the Supreme Court in People’s Union for Civil Liberties (PUCL) v. Union of India[16] which, being way ahead of its time, had recognised “hold[ing] a telephonic conversation in one’s home or office without interference” as a part of the right to privacy. The Court observed that adopting the adage ‘the ends justify the means’, “would amount to declaring the government authorities may violate any directions of the Supreme Court or mandatory statutory rules in order to secure evidence against the citizens. It would lead to manifest arbitrariness and would promote the scant regard to the procedure and fundamental rights of the citizens, and law laid down by the Supreme Court”. This decision, again, seems to place unconstitutionally obtained evidence on a higher pedestal than evidence which is merely illegally obtained. Given the fact that the a huge body of precedent (permitting the admissibility of illegally obtained evidence) still stands, it would be interesting to see if other courts would be inclined to pursue and take further the Bombay High Court’s decision in Vinit (supra) and the Supreme Court’s decision in Selvi (supra) and start excluding even illegally obtained evidence. The authors argue that they should since not doing so would be tantamount to saying that: something which is illegally obtained may still be termed ‘constitutionally obtained’ and received in evidence.

The Bombay High Court judgment in Vinit Kumar[17], needless to state, is extremely welcome though its capacity for general application in other cases is doubtful given the fact that the rules under the Telegraph Act specifically allow the destruction of illegally obtained evidence. Evidence illegally obtained in other proceedings, where there is no specific provision of destruction/exclusion, is still likely to be held admissible and the general rule still remains: “even if evidence is illegally obtained it is admissible”.

Comparison with other jurisdictions

In the United States (‘US’), before 1914, warrantless and illegal searches were common and evidence procured from these searches was admissible in court. However, in 1914, the United States Supreme Court had to deal with the question of a warrantless search of a house wherein the evidence collected was used to convict the owner of the house for illegal gambling. This was the case of Fremont Weeks v. United States[18] where the Court overturned Week’s conviction based on the Fourth Amendment of the Constitution of the US, which bars the use of evidence secured through a warrantless search and seizure. Thus, was born the exclusionary rule, which is a judicially created remedy used to check police misconduct in obtaining evidence. As per the exclusionary rule, a Judge may exclude incriminating evidence from a criminal trial if there was police misconduct in obtaining the evidence. The exclusionary rule was the predecessor of the doctrine of “fruits of the poisonous tree”.

The doctrine of the “fruits of the poisonous tree” holds that the evidence (fruit) from an illegal search or seizure which is a tainted source (the tree), would also be tainted and hence, inadmissible.

The term “fruits of the poisonous tree” was first used by Frankfurter, J. in Nardone v. United States[19] wherein it was held that, in a prosecution in a federal court, evidence procured by tapping wires in violation of the Communications Act of 1934 is inadmissible. This was applied not only to the intercepted conversations but also to evidence procured through the use of knowledge gained from such conversations. Eventually, there was a difference of opinion and contradictory judgments with regard to the exclusionary rule until 1961, when, in Mapp v. Ohio[20], the US Supreme Court held that under the “due process” clause, evidence obtained by a search and seizure in violation of the Fourth Amendment is inadmissible in a State prosecution for a State crime. Though this initially applied to criminal cases only, in recent times, the US courts have also applied this to civil cases.

However, as with most things in criminal law, the exclusionary rule also has some exceptions which attempt to strike a balance between the imperatives of fact-finding/prosecution and the protection of the due process of rights of the accused. The exceptions are as follows[21]:

Use of illegally obtained evidence not for the purpose of proving guilt but to impeach the credibility of the accused should he/she choose to depose;
Inevitable discovery: By virtue of this exception, something which the police would have found inevitably, even without the illegal search/seizure/method, is taken to be admissible.
Good faith: An officer acting under the impression of being permitted by law, for instance, conducts a search believing a warrant to be authorised but later revoked, is believed to have acted in good faith and any discovery is held admissible in law. This exception was created by the Supreme Court in United States v. Leon[22], because, according to the majority opinion, the rule was designed to deter police misconduct, and excluding evidence when the police did not actually misbehave would not deter police misconduct and only lead to vital evidence being eschewed without any redeeming value.
Independent source: Evidence procured by illegal means by an independent source or third person which in part at least is not obtained from a tainted source. An independent source must be someone absolutely unconnected to the illegality of the arrest, search, and/or seizure (People v. Arnau[23]).
Attenuation. If the link between an illegal search and legally admissible evidence is thin, the evidence is admissible, even if the illegal search may have set in motion the chain of events that led to evidence being revealed. In other words, unless it can be proven that the evidence resulted directly from some illegal action taken by law enforcement officials, it can be admitted. In People v. Martinez[24], a three-part test was established for this exception: “(1) the time period between the illegal arrest and the ensuing confession or consensual search; (2) the presence of intervening factors or event; and (3) the purpose and flagrancy of the official misconduct“.

In the United Kingdom (‘UK’), Section 78(1) of the Police and Criminal Evidence Act, 1984 (“the PCE Act”) states that, in any proceedings, a court may refuse to allow evidence, if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have an adverse effect on the fairness of the proceedings; this is known as the “Unfair Operation Principle”. Section 82(3) of the PCE Act also gives courts the power to refuse evidence (whether by preventing questions from being put or otherwise) at its discretion.

Back home in India, the Law Commission of India, in its 94th Report[25], suggested the incorporation of a provision Section 166-A in Chapter 10 of the Evidence Act which, if enacted, would have read as “In a criminal proceeding, where it is shown that anything in evidence was obtained by illegal or improper means, the court, after considering the nature of the illegality or impropriety and all the circumstances under which the thing tendered was obtained, may refuse to admit it in evidence, if the court is of the opinion that because of the nature of the illegal or improper means by which it was obtained its admission would tend to bring the administration of justice into disrepute.”

The Law Commission also suggested that a court, while making the above assessment, may consider all the circumstances surrounding the proceedings and the manner in which the evidence was obtained, including but not limited to:

the extent to which human dignity and social values were violated in obtaining the evidence;
the seriousness of the case;
the importance of the evidence;
the question whether any harm to an accused or others was in?icted wilfully or not, and;
the question of whether circumstances were justifying the action, such as a situation of urgency requiring action to prevent the destruction or loss of evidence.

However, none of the above was ever implemented and the courts, in India, except a handful of decisions to the contrary (not capable of general application), continue to go by the dictum of ‘even if it’s stolen, it is admissible in evidence’.

Way forward

“There is no crueller tyranny than that which is perpetuated under the shield of law and in the name of justice.” – Montesquieu

The time is always right to do what is right. The countries which originally incorporated this principle have moved away from it and so must India. On the judiciary’s side, the Supreme Court’s judgment in Puttuswamy, followed by the Bombay High Court’s judgment, is definitely a step in the right direction and a step we welcome. Having said that, an amendment in the law is imperative to clearly lay down a rule where the court is given the discretion to exclude illegally obtained evidence; which discretion may be exercised – keeping in mind a variety of circumstances as detailed above. If the change doesn’t come-in from the legislature, the judiciary must clearly lay down exclusionary principles (as in US) or put the ‘unfair operation principle’ (inspired from UK) on firmer legal ground. It is high time that the law, instead of looking the other way, must disincentivise illegal investigations and protect due process by refusing to receive illegally obtained evidence. Any other view would be tantamount to the law missing the forest for the (poisonous) trees.

*Former Judge. Partner, L&L Partners, Law Offices.

**Associate, L&L Partners. The views of the authors are personal.

[1] Evidence Act, 1872

[2] (1861) 8 Cox CC 498

[3] (1964) 1 SCR 926

[4] 1936 SCC OnLine PC 41

[5] (1973) 1 SCC 471

[6] (1974) 1 SCC 345

[7] (2005) 3 SCC 169, ¶ 32

[8] (2013) 10 SCC 591

[9] (2010) 7 SCC 263

[10] Ibid