The term "fruits of the poisonous tree" was first used by Justice Frankfurter1 in Nardone v. United States2 . This is applied not only to the intercepted/taped conversations but also to evidence procured through the use of facts derived from such conversations. The doctrine is based on the protection given by the Fourth Amendment3 of the United States Constitution. This doctrine finds a flexible approach in India. The Indian courts have discretionary powers to admit such evidence despite its source being illegal.


The doctrine stands on various principles. First, it mandates the admission and rejection of evidences in the court of law solely through their reliability and source. Evidence extracted through threats, inducements, torture are likely to be unreliable. The disciplinary principle encourages courts to discourage improper practices during the investigation stage to procure evidence. The Protective Principle provides safeguards for the individual's rights and liberties. Another is Judicial Integrity Principle, which implores the courts to pro


The Indian courts have different approach towards this doctrine as compared to the United States. In the USA, the judicial rulings make procurement of evidence through means as "illegal" because the right of privacy envisaged under the Fourth Amendment is followed strictly. As of now, the said doctrine has no strict enforceability in Indian law. Indian courts have discretionary power to admit the evidence obtained through wiretapping, theft, wrongful arrest, sting operations, etc, as the Indian Evidence Act is exhaustive and relevancy of any fact is such if such fact is largely relevant. The United Kingdom has 'The Unfair Operation Rule 4 wherein evidences extracted by being unfair to the accused through illegal and unfair means can be excluded. In some cases, the application of this doctrine might free the guilty. However, the rights of accused against the rights of public security is very important.

Even the first law commission report5 had reflected that there was a gross misuse of power by the police to extract statements or evidences, practices which continue till today. In India, people are unaware of their legal rights and find themselves trapped in police abuse, unlawful arrest. Therefore, it becomes all the more important to exclude such evidence during court trials. A landmark decision based on the exclusionary rule is Boyd v. United States6 , wherein some customs officers searched and seized petitioner's glass plates on suspicion that the documents related to these objects were falsified to evade customs duties. The issue before the court was whether the production of person's private papers to be used as an evidence against him in the trial, constitutes unreasonable search and seizure within the Fourth Amendment. The said evidence was excluded and court laid down a principle that all intrusion from the part of the government or its employee will constitute the breach of personal security, personal liberty and private property.


The 94th Law Commission Report7 acknowledged that due to increase in violation of human rights and the expansion of Article 218 , it is necessary to re-consider this doctrine into the current statute. The act of wiretapping, unlawful seizures, as invasive to human dignity and social values which are so crucial to a fair criminal justice system. The Indian Evidence Act of 1872 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. Under Indian law, there is no statutory prohibition against illegally obtained evidence.9 In one of the cases before the Hon'ble Supreme Court of India - Umesh Kumar vs State of A.P, 10, it was settled that even if a document is procured through unlawful means, its admissibility would not get barred. It is much clear that 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 which translates to - the ends do justify the means. Similarly, in another case Poorna Mal v. Director of Inspection of Income Tax (Investigation)11, the Hon'ble Supreme Court while ruling on the question of admissibility of material seized in a search, alleged to be vitiated by illegality, 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."


Some media proprietors question the ethics of sting operations, noting that in their organisations such methods of reporting are not allowed. Ethically, journalists ought not to misrepresent themselves while pursuing a story. However, it is sometimes bent at the curves. During any sting, misrepresentation is everything, and most media organisations including The Wire 12 have a policy of not conducting them. In journalism, there is no such thing as the "fruit of poisoned tree." Some of the famous incidences in journalism, the Wiki Leaks and Edward Snowden broke the law and published the official documents of secret classification in the public domain and alleged the illegal acts against the Government. Despite this, many countries evaluated them and also reported about them. The Supreme Court in "Selvi vs. State of Karnataka13, while testing the validity and legality of scientific tests like polygraph or narcoanalysis, 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."


The hon'ble Supreme Court of India14 has ruled that the right to privacy is a fundamental right under Article 21 of Indian Constitution.15 The fundamental right is enforceable against the State subject to reasonable restrictions. By the said ruling, the admissibility of illegally obtained evidence is now questioned directly. Under the law of land, no statute is above fundamental rights enshrined in the constitution. Recalling a very old case Baldev Singh vs State of Punjab 16, there is a dire need to enact a statute that prohibits all the illegally obtained evidences. Otherwise, with the privacy judgment in place, the section 5 of the Act17 with Article 2018, which prohibits self-incrimination and Article 21 relating to right to privacy are clear. The same would allow for the exclusion of illegally obtained evidence. On the other hand, U.K. enacted a statute codifying the rule of "The Unfair Operation Principle". But the position remains unsettled in countries like India as the evidence is inadmissible in the cases where a statute explicitly prohibits such practice. The Right to privacy may help in shaping the law in India. The unethical commercial practices especially those which have crossed the boundary lines between advertising and news must be abandoned. Media owners must restore a proper balance between the editorial and commercial sides of their newspapers and news TV channels.


1 Renowned judge of Unites States of America

2 308 U.S. 338, (1939), the Supreme Court of United States of America held that facts illegally obtained from a wiretap under the Communications Act ,1934 could not be used at trial and hence inadmissible.

3 Full text of 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 be issued, 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 The Unfair Operation Principle and the Exclusionary Rule: On the Admissibility of Illegally Obtained Evidence in Criminal Trials in India." Indiana International & Comparative Law Review 27, no. 2 (2017): 147. Accessed April 19, 2018.

5 The Law Commissions for the first time was established in 1834 under the Charter Act of 1833 under the Chairmanship of Lord Macaulay which recommended codification of the Penal Code, the Criminal Procedure Code and a few other matters.

6 116 U.S. 616 (1886)

7 Law Commission Report No. 94- "Evidence obtained illegally or improperly proposed Section 166A, Indian Evidence Act,1872."

8 Constitution of India, 1950

9 Indian Evidence Act of 1872 or the Code of Criminal Procedure of 1973.

10 CRIMINAL APPEAL NO.1305 of 2013.

11 1974 AIR 348, 1974 SCR (2) 704.

12 The Wire is an Indian news and opinion websitefounded in 2015.

13 Supreme Court of India, Criminal Appeal No. 1267 of 2004.

14 2017 (10) SCC 1.

15 Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.

16 (1999) 6 SCC 172.

17 The Indian Evidence Act, 1872.

18 Indian Constitution , 1950.

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