The nature of the individual State power dynamic in criminal investigations means that the privacy of an individual is always in conflict with the objective of maintenance of law and order. It is no different in India. This conflict comes to the fore even more prominently in a post Puttaswamy1 world where the right to privacy of an individual has been recognised as a fundamental right under Article 212 of the Constitution of India. Unlike the United States, where the principle of “fruit of the poisonous tree” means that all evidence illegally derived from an infraction of the Fourth Amendment3 is excluded,4 the general position in India has always been to ignore the illegality of such evidence and consider it relevant.
Section 55 of the Telegraph Act, 1885 and Rule 419-A of the Telegraph Rules, 1951 containing powers of wiretapping at the hands of the Government is a hotbed for such questions of admissibility of illegally obtained evidence. Both Section 5 and Rule 419-A contain wide-ranging powers of any Government to wiretap telephones if it considers it necessary in a situation of public emergency or public safety. It would be wrong to say that these provisions do not have procedural safeguards woven into them.6 However, the natural conflict between questions of admissibility of evidence and concerns of national security or public safety contained within Section 5 and Rule 419-A remains unanswered.7 The Delhi High Court's judgment in Jatinder Pal Singh v. CBI8 and the Bombay High Court's judgment in Vinit Kumar v. CBI9 in 2019 brings into perspective certain interesting questions regarding the same conundrum. Both High Courts in reviewing evidence obtained from wiretapped telephones delivered the first judgments dealing with the admissibility of illegally obtained evidence under the Telegraph Act, 188510, post Puttaswamy case11.
The admissibility of illegally obtained evidence: Pre Puttaswamy
The principle of evidentiary admissibility which drives any interpretation of evidence in India is the principle of relevancy found in Section 512 of the Evidence Act, 1872. This principle of relevancy can be understood better by referring to the definition of “relevant fact” in Section 2. Any fact is relevant to another if the fact in question relates to the other fact in any manner under the Evidence Act, 1872.13 Sections 24 to 3014 which contain the relevant provisions on admissibility under Indian law do not, in any form, discuss illegality in obtaining evidence as a ground. Hence, it is not surprising that the general position in Indian law has been fixed on considering evidence relevant regardless of the illegality in obtaining the same.15
In R.M. Malkani case16, the question before the Supreme Court concerned the admissibility of a conversation recorded through a tape-recording instrument attached to the telephone of the informant. The Supreme Court held that a piece of evidence is admissible even if it is illegally obtained17 unless the Judge exercises their discretion to consider such evidence inadmissible if it operates unfairly against the accused.18 However, in implementation, judgments applying R.M. Malkani case19 have rarely, or never, given this benefit to the accused. While dealing with the violation of Article 21 of the Constitution and the right to privacy, the Court regressively observed that protection by courts against wrongful or high-handed interference from the executive would not be given to guilty persons who violate the law, but only to those persons who are innocent.20 This perspective of the Court suggests an approach within the criminal justice system where the ends justify the means, and the achievement of a conviction or a committal is placed on a higher pedestal than questions of individual freedom or privacy.
In Pooran Mal case21, similarly, the Supreme Court again regressively laid down that the only way to test the admissibility of evidence in India would be the test of relevancy which is laid down under Section 5 of the Evidence Act, 187222. Thus, it was the Court's opinion that any claim of a breach of fundamental rights cannot exclude evidence obtained from an illegal search.23 This position has been continued to be maintained by the Supreme Court as recently as in Bharati Tamang case24. In the absence of any clarity from the Evidence Act, 1872, the application of such discretion through these judgments has meant that the rights of persons at the receiving end of such illegal investigation have been consistently placed at a disadvantage. Additionally, these judgments were also in clear ignorance of the scheme of Article 20(3)25. Any accused person could be wiretapped under provisions such as Section 5, without their knowledge on the grounds of them posing a threat to national security or public order. The evidence obtained through such wiretapping could then be used to incriminate the same accused person. This was, unfortunately, never taken into consideration.
It is also important to note that the judgments of R.M. Malkani26 and Pooran Mal27 were both delivered post the decision of the Supreme Court in Kharak Singh28 which had held that the right to privacy is not guaranteed under Article 21. These judgments were also delivered before Maneka Gandhi case29 read the concept of “due process of law” into the ambit of Article 21. Thus, any reliance placed on these judgments delivered before both Kharak Singh case30 and Maneka Gandhi case31 to argue that principles of policy and violation of fundamental rights would not render illegally obtained evidence inadmissible would be wrong. Thus, with K.S. Puttaswamy case32 recognising the right to privacy under Article 21, any evidence obtained through surveillance must not only fulfil the requirement of the “procedure established by law” such as Rule 419-A of the Telegraph Rules, 1951 or Section 5 of the Telegraph Act, 1885, but also the “due process” test laid down by Puttaswamy case33. This test provides that any infringement of an individual's privacy which is undertaken by the State must fulfil three requirements being:
(1) The existence of law or legality of the measure undertaken;
(2) The necessity of the measure undertaken in relation to legitimate State aim; and
(3) Proportionality ensuring a rational nexus between the objects and the means adopted to achieve them.34
The Telegraph Act and procedural safeguards: The judgments of Vinit Kumar and Jatinder Pal Singh
Section 5(2) of the Telegraph Act, 1885 empowers the Central Government/State Government or any officer specially authorised to intercept any message or messages to and from any person or class of persons on the occurrence of any public emergency, or in the interest of public safety. Rule 419-A(1) of the Telegraph Rules, 1951, to be read together with Section 5(2), provides that any such direction for interception must not be issued except by an order made by the Secretary to the Government of India or by Secretary to the State Government in charge of the Home Department or in unavoidable circumstances by an officer, not below the rank of Joint Secretary to the Government of India. However, Rule 419-A(1) also provides for an exemption from this requirement. In emergent cases, when obtaining prior directions is not feasible due to it arising out of remote areas or due to operational reasons, an interception may be carried out with the prior approval of the Head or the second seniormost officer of the authorised security and law enforcement agency centrally. Such an interception is to be informed to the competent authority concerned within 3 working days and confirmed within 7 working days.
The safeguards within Rule 419-A(2) provide that any order which has been issued by a competent authority is to be sent to a Review Committee within 7 working days. The order sent to the Committee shall under Rule 419-A(5) specify the use of the intercepted messages, and they shall continue to remain in force for a period not exceeding 60 days unless renewed, for a maximum cumulative period of 180 days under Rule 419-A(6). These Review Committees meet every two months and examine the validity of such interceptions. It is evident from a bare perusal of Rule 419-A that the construction of the legislative scheme under it has been done in this manner to restrict the exercise of discretion within it solely in the hands of the executive. The dangers of the same are evident from the judgments of Vinit Kumar35 and Jatinder Pal Singh36.
In Vinit Kumar case37, it was alleged by Central Bureau of Investigation (CBI) that the petitioner had bribed an official of a public sector bank to obtain a credit-related favour. For the same, three orders were passed under Rule 419-A to intercept his telephone calls. The petitioner, in this case, challenged these three orders and argued that the illegally recorded telephonic recordings in the charge-sheet and all material collected on its basis should be set aside.38 Dealing with this issue of admissibility of illegally obtained evidence for the first time post Puttaswamy case39, Ranjit More, J.'s judgment departed from the established practice of ignoring concerns of privacy in relation to evidence, and instead adopted the three-pronged test of Puttaswamy case40. The judgment did not clearly distinguish its analysis for each of these prongs, instead, basing the bulk of its analysis on the first prong of legality. Accordingly, the Court observed that based on the materials-on-record, there were no circumstances or situations of “public safety” or “public emergency” in the matter at hand.41 In the absence of any such material, the Court in one sweep struck down the orders, holding that the interception orders have failed the test of legality, necessity, and proportionality.42 Importantly, the Court also observed that sanctioning a violation of fundamental rights on the notion that in criminal law, the ends justify the means, would amount to manifest arbitrariness and contempt of the Supreme Court's directions in Puttaswamy case43.44
In Jatinder Pal Singh case45 it was alleged by CBI that the petitioner had entered into a criminal conspiracy with Dr Ketan Desai, President of Medical Council of India to obtain recognition for the courses in a medical college in contravention of relevant rules and regulations. This conspiracy was revealed to CBI on placing the mobile phones under surveillance.46 It was argued by the petitioner that the manner of placing the mobile phones under telephonic surveillance was illegal and as a consequence, no reliance could be placed on them.47 In analysing the records, the Court found that there was no material-on-record to establish that any review of the order of the Home Secretary had been conducted in compliance with Rule 419-A and the Telegraph Act.48 Although the Court did not dive into an analysis of Puttaswamy case49 in the absence of any orders passed under Rule 419-A unlike Vinit Kumar case50, the Court did hold that non-compliance with these Rules would lead to manifest arbitrariness and violate the fundamental rights of citizens.51 Thus, the Court set aside the charges which were framed against the petitioner.
The relevance of these judgments: Admissibility of illegally obtained evidence going forward
At the outset itself, it is important to recognise the stage at which these judgments were delivered. In Jatinder Pal Singh case52, the public servant who was being bribed through the alleged conspiracy had already been discharged while charges framed against the petitioner since 2012 were still pending. In Vinit Kumar case53, the petitioner had to approach the Court for an exercise of its writ jurisdiction to claim a violation of his fundamental rights at the stage of trial. In both instances, the petitioners had to approach a higher court to obtain a relief. However, with the precedents of Jatinder Pal Singh case54 and Vinit Kumar case55, an accused against whom a charge-sheet has been filed based on the illegally obtained evidence, would now be able to challenge such evidence at the stage of arguments on charge/discharge under Section 22756 or Section 22857 of the Criminal Procedure Code, 1973. Regardless of the same, most remedies in relation to challenging such evidence exist outside the framework of the trial in the form of applications to writ jurisdiction, applications for criminal revision or quashing proceedings before a higher court. Invoking these remedies would mean that any such trial becomes longer and unfairly prejudicial towards an accused. Such illegalities and unfairness against individuals can be countered if a scope of judicial or legislative oversight is introduced into the framework of surveillance. For example, in R. v. Yat Fung Albert Tse58 which dealt with the constitutionality of Section 184.4 of the Criminal Code of Canada, powers like those under Rule 419-A rested with a police officer to conduct interception due to the urgency of a situation. The Court found that Section 184.4 violates Section 8 of the Charter59 as it does not provide a mechanism for oversight, and more importantly, a provision of notice to persons whose private communications have been intercepted.
The Justice B.N. Srikrishna Committee in its Report found that as many as 7500 to 9000 interception orders were passed by the Central Government every month during its review period, and that the Review Committees had the unsavoury work of reviewing 15,000 to 18,000 of these orders while meeting once in two months.60 Such volume in the hands of one executive body which meets just once every two months would mean that an examination of such privacy-intrusive orders is only being done for the sake of it. Accordingly, the Justice B.N. Srikrishna Committee observed that the absence of any oversight into such exercise of decision-making by the executive in India, might, in the context of Puttaswamy case61 be unconstitutional.62 Worryingly, the Committee also observed that most intelligence gathering in India fails at the first prong of the Puttaswamy case63 test itself, being undertaken without the sanction of law, as could be seen in both Jatinder Pal Singh case64 and Vinit Kumar case65.66 Thus, the Committee observed that a law needs to be introduced providing for both parliamentary oversight and judicial approval. For the aspect of judicial approval, the Committee recommended that a District Judge may be posted in each district to go through the orders, with such proceedings being done within closed doors. The Committee also recommended that appropriate reporting should be done to a designated Parliamentary Committee and approvals must be granted in a time-bound and judicious manner.67
Introducing protections such as this within the process envisaged under Section 5 and Rule 419-A is essential if we are to ensure that overbroad exercise of executive discretion invading upon the privacy and the right against self-incrimination of its citizens does not go without oversight. Similarly, for remedies within the institution of trial itself, the introduction of a provision like Section 166-A in the Evidence Act, 1872 as was envisaged by the Law Commission in its 94th Report68 in 1983 excluding illegally obtained evidence would be important. However, unlike Section 166-A, any addition to the Evidence Act, 1872 today must provide for a strict exclusionary rule like the United States where illegally obtained evidence is excluded irrespective of its relevance.
The judgments of Vinit Kumar69 and Jatinder Pal Singh70 are pioneering precedents from our courts that operationalise the right to privacy which was recognised in Puttaswamy case71. These judgments hand every affected person within the criminal justice system a precedent through which they can challenge such illegalities. Thus, it is a step in the right direction towards operationalising the protections of Puttaswamy case72 within the realities of the criminal justice system.
† Delhi-based criminal lawyer. The author can be reached at <email@example.com>.
†† Associate, Chambers of Jai Anant Dehadrai. The author can be reached at <firstname.lastname@example.org>.
1. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
2. Constitution of India, Art. 21.
3. Constitution of the United States, Fourth Amendment— “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
4. G.L. Peiris, “The Admissibility of Evidence Obtained Illegally: A Comparative Analysis”, (1981) Vol. 13:2 Ottawa Law Review, pp. 309, 315-316.
6. For example, the necessity of there being a public emergency or a question of public safety under S. 5 and the recording of reasons in writing, and cls. (2) and (3) of R. 419-A which require reasons to be written for such interception and consideration of alternative ways of attaining the same evidence before an order for interception is put forth.
7. See State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, para 154, where in examining the admissibility of intercepted messages between two accused in Parliament attack case, the Supreme Court observed that non-compliance with S. 5(2) or R. 419-A does not render such illegally obtained evidence inadmissible.
14. Evidence Act, 1872, Ss. 24, 25, 26, 27, 28, 29 and 30.
15. Law Commission of India, Report No. 94, Evidence Obtained Illegally or Improperly: Proposed Section 166-A, Indian Evidence Act, 1872, (October 1983), Para 3.1. For example, in Sunder Singh v. State of U.P. AIR 1956 SC 411, para 9, the judgment referred to by the Commission to put forth its case, the irregularity in the search and recovery procedure did only at the highest effect the “weight” of the evidence.
16. R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471.
17. R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471, para 24.
18. R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471, para 24.
20. R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471, para 31.
21. Pooran Mal v. Director of Inspection (Investigation), (1974) 1 SCC 345.
23. Pooran Mal v. Director of Inspection (Investigation), (1974) 1 SCC 345, para 23.
24. Bharati Tamang v. Union of India, (2013) 15 SCC 578, para 28.
25. Constitution of India, Art. 20(3).
28. Kharak Singh v. State of U.P., AIR 1963 SC 1295.
29. Maneka Gandhi v. Union of India, (1978) 1 SCC 248, para 48.
32. (2017) 10 SCC 1, para 652.2.
34. (2017) 10 SCC 1, para 325.
38. Vinit Kumar case, 2019 SCC OnLine Bom 3155, para 2.
41. Vinit Kumar case, 2019 SCC OnLine Bom 3155, para 19.
42. Vinit Kumar case, 2019 SCC OnLine Bom 3155, para 20.
44. Vinit Kumar case, 2019 SCC OnLine Bom 3155, para 42.
46. Jatinder case, 2022 SCC OnLine Del 135, paras 2(i) and (ii).
47. Jatinder case, 2022 SCC OnLine Del 135, para 6(b).
48. Jatinder case, 2022 SCC OnLine Del 135, para 57.
51. Jatinder case, 2022 SCC OnLine Del 135, para 59.
56. Criminal Procedure Code, 1973, S. 227.
57. Criminal Procedure Code, 1973, S. 228.
58. 2012 SCC OnLine Can SC 16 : (2012) 1 SCR 531.
59. Constitution Act, 1982, Canadian Charter of Rights and Freedoms, S. 8, “Everyone has the right to be secure against unreasonable search or seizure”.
60. Srikrishna Committee Report [Data Protection] (2018) p. 125.
62. Srikrishna Committee Report [Data Protection] p. 127.
66. Srikrishna Committee Report [Data Protection] p. 128.
67. Report of Justice B.N. Srikrishna Committee, A Free and Fair Digital Economy: Protecting Privacy, Empowering Indians (2018) p. 128.
68. Law Commission of India, Report No. 94, Evidence Obtained Illegally or Improperly: Proposed Section 166-A, Indian Evidence Act, 1872, (October 1983).