The Unfair operation principle and the exclusionary rule: on the admissibility of illegally obtained evidence in criminal trials in India

Abstract

This article addresses the admissibility of illegally obtained evidence, as a matter of evidence law, in criminal trials in India. The United States Constitution’s Fourth Amendment jurisprudence provides, as a matter of constitutional law, that illegally obtained evidence is inadmissible. This rule is known around the world as the Exclusionary Rule. The U.S. Supreme Court has carved our several exceptions to the Exclusionary Rule; however, illegally obtained evidence remains inadmissible in criminal trials in the U.S. in most instances. Relevant legal propositions to this effect have been codified under the Police and Criminal Evidence Act of 1984 in the United Kingdom where inadmissibility of illegally or unfairly obtained evidence remains largely a matter of discretion with the trial * Stone Scholar, LL.M. (Columbia), LL.B. (Delhi); Associate Professor of Law & Assistant Dean (Research and Publications), Assistant Director (Center on Public Law and Jurisprudence), Assistant Director (Mooting and Advocacy Program), Jindal Global Law School, O.P. Jindal Global University, Sonipat, India. The author can be reached at kgautam@jgu.edu.in. The author would like to thank Professor David Siegel (New England Law, Boston) for his valuable comments on an earlier draft of this article in July 2015. An earlier version of this article was presented at the seminar on ‘Judicial Process, Legal Systems and the Rule of Law: Comparative Perspectives on India and the U.S.A.’ organized by Jindal Global Law School in Haryana, India on August 13, 2014. The article was presented in the session on ‘Legal Practice, Court Procedures and Constitutional Perspectives from India and the United States.’ The author is thankful to the Chair of the Session, Judge Gary Eugene Bair, Associate Judge, Montgomery County Circuit, 6 Judicial Circuit, U.S.A., and Professor (Dr.) Stephen P. Marks (Harvard University) and all the participants in the seminar for their valuable comments. The author would also like to thank his teaching assistant V. Balaji (JGLS 2012) for excellent research assistance. †. Oliver Wendell Holmes, The Path of Law, 10 HARV. L. REV. 457, 469 (1897). 148 INDIANA INT’L & COMP. LAW REVIEW [Vol. 27:147 judge. Under Indian law, there is no statutory prohibition against illegally obtained evidence under either the Indian Evidence Act of 1872 or the Code of Criminal Procedure of 1973. However, a review of reported Indian Supreme Court opinions on the point discloses the existence of a judge made doctrine, largely derived out of British common law, whereby illegally obtained evidence can be excluded at the discretion of the trial judge if the admission of the same would operate unfairly against the accused. This rule is designated as the Unfair Operation Principle. This article, for the first time, closely engages with the Unfair Operation Principle as a matter of evidence law. The first part of this article provides a restatement of the law of admissibility of evidence at criminal trials in India by surveying existing Indian jurisprudence on the point. It locates the Unfair Operation Principle as a part of general law of admissibility. The second part of this article argues that a judge has no discretion to admit illegally obtained evidence under the Unfair Operation Principle. This proposition is supported by the philosophy of Professor Ronald Dworkin and accordingly a Dworkinian analysis is provided. The third part of this article compares the Unfair Operation Principle with the Exclusionary Rule in order to demonstrate the similarities and differences between the two. It argues that both rules are similar to the extent that they both protect the interests of an accused at a trial, but are distinct to the extent that one is a rule of evidence law and the other is a rule of constitutional law. Accordingly, the third part makes a comparative argument to support the proposition advanced in the second part.