Column: Fruit of the Poisonous Tree

Bar & Bench March 15 2019

Satvik Varma

At the recent Supreme Court hearing of the review petitions seeking inquiry into the Rafale deal, arguments based on the doctrine of “Fruit of the Poisonous Tree” were submitted. Coined by Justice Frankfurter of the United States Supreme Court, this doctrine is part of the court-made “Exclusionary Rule” of evidence and postulates that illegally obtained evidence is inadmissible in court.

The doctrine is based on the protection afforded by the Fourth Amendment of the United States Constitution, which provides for people to be secure in their persons and homes. Established primarily to deter law enforcement authorities from violating individual rights during search and seizure, some exceptions have been carved out including that the evidence was discovered, in part, as a result of independent sources or that it would inevitably have been discovered despite the tainted source.

This doctrine has no parallel in India and, as indicated during the hearing, there is nothing which prevents Indian courts from considering even stolen evidence, if it helps establish guilt or prove one’s innocence. The Indian courts’ powers to admit such evidence is bolstered when the probative value of the evidence indicates its relevance. Even otherwise, the Indian Constitution empowers the Supreme Court to make any order for the discovery or production of any document before it.

In such circumstances, why was certain information, including file notings, withheld from the Supreme Court? And is “national security” only an armour now being used by the authorities to prevent embarrassment, likely to be caused by the fruits having been placed at the high table? 

The Indian Evidence Act (“Act”), which like many statutes is based on English law, has an entire chapter dedicated to the relevancy of facts, which specifies that the primary criterion for determining the admissibility of evidence in Indian courts is its relevance. Hence, as things stand today, source is not what takes priority. 

The Supreme Court of India decisively considered the admissibility of illegally obtained evidence in 1973, whilst deliberating on the issue whether audio recordings of a telephone call would be admissible. It was argued that admissibility of the recorded evidence offended Articles 20(3) and 21 of the Constitution, and that the manner of acquiring the tape-recorded conversation did not keep with the procedure established by law. However, the appellant's conversation was voluntary, and was not extracted under duress or compulsion. This, the Court held, rendered the evidence of such conversation admissible.

Relying on an English decision, the Court noted that, “it matters not how you get it if you steal it even, it would be admissible in evidence.” So long it is not tainted by an inadmissible confession of guilt evidence, even if illegally obtained, is admissible. While passing its decision the Court also cited its dicta in another case and noted that “a document which was procured by improper or even by illegal means could not bar its admissibility provided its relevance and genuineness were proved.”

On the heels of this decision, in 1974 the Supreme Court re-examined the issue of wrongfully obtained evidence. This case, before a Five Judge Constitution Bench, pertained to searches and seizures to check tax evasion under the Income Tax Act, with a prayer seeking to restrain the tax department from using, as evidence, any information gathered from the seized account books. The Constitution Bench held that information seized as a result of such search could be used in evidence even if the process was illegal. The Bench observed that nothing in Article 19 of the Constitution forbade the use of evidence obtained as a result of an illegal search. 

The Constitution Bench also noted that no provision of the Act was challenged as violating the Constitution and the Act considered relevance as the only test of admissibility. In fact, the Constitution Bench authoritatively stated that it was not open to them to strain the language of our Constitution, because some Judges of the “American Supreme Court have spelt out certain constitutional protections from the provisions of the American Constitution.” The Bench concluded by noting “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.” 

Applying the above, the Supreme Court most recently upheld that evidence illegally obtained is not liable to be shut out and observed that every detail should be placed before it to examine the guilt of an accused and more importantly to reach a just conclusion. 

Notably, the Constitution Bench decided that no constitutional limitation existed precluding it from reviewing illegally obtained evidence as, in 1974, there was no recognition of a fundamental right to privacy. The law has now evolved and progressed to recognize privacy as a fundamental right as pronounced by another Constitution Bench in 2018. English Courts themselves are beginning to strike a balance between individuals' rights like prohibiting phone tapping or hacking of emails, and weigh its probative value against the prejudicial effect of illegally obtained material.

But, the Constitution Bench decision is still good law. Examined on those principles, the Bench hearing the Rafale review petitions correctly stated that it can’t, now, ignore information before it, as the same may be relevant in the greater public interest. In fact, with the allegations made in the review petitions, and as the Supreme Court previously took the contents given to it in the sealed cover at face value, the Court is right in wanting to examine all the material presented for vindicating the truth.

Eventually, justice is better achieved by putting all relevant material before the court, preferably not in sealed covers, for their Lordships’ evaluation, with a view to examine the facts and ascertain the truth. Only then will justice be seen to be done!

Satvik Varma is a counsel based in New Delhi. A graduate of Harvard Law School, he’s also licensed to practice in New York. 

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