The Supreme Court recently cited case precedence from the 1970s to reaffirm that illegally-obtained evidence remains admissible in courts of law so long as its relevance and genuineness are proved, other than where it is tainted by an inadmissible confession. This preserves an old rule at a time when the constitutional landscape has changed. While the apex court’s position may be doctrinally traceable to cases such as Naresh Kumar Garg versus State of Haryana, Magraj Patodia, R.M. Malkani and Pooran Mal, legal developments since then may make it challenging to defend this view as a matter of constitutional principle: after all, in its landmark judgment in K.S. Puttaswamy, the apex court held privacy to be a fundamental right. As per that judgment, State intrusion in the lives of citizens must satisfy legality, necessity and proportionality. In 2019, the Bombay High Court treated the illegal interception of evidence through that lens and struck down surveillance orders by the State. A legal system that recognises privacy in theory but appears to admit the products of illegal search and seizure in practice may give rise to a serious contradiction at the heart of the criminal process. Acceptance of illegally-obtained material raises difficult questions about the incentives created for investigators. When the legal consequence of procedural violation does not affect the admissibility of evidence, the deterrent value of constitutional safeguards becomes uncertain. A permissive approach to admissibi­lity risks encouraging investigative shortcuts that undermine the integrity of criminal proceedings.

Comparative constitutional practice would reveal the United States of America’s exclusionary rule that suppresses evidence obtained through unreasonable and illegal searches. Canada’s Charter permits exclusion of illegally procured evidence where the admission of the same would bring the administration of justice into disrepute. India does not need to import a foreign model. But it does need a rule that deters illegality on the part of investigators, especially in an era of intrusive surveillance and easily manipulated electronic evidence. Relevance of evidence alone is too thin a safeguard. When courts admit the products of unlawful State action, the signal that can get sent out is that procedure is optional and rights are ornamental. That is not a position a constitutional democracy should preserve unchanged.