With the right to privacy recognised as a fundamental right under Article 21, a government-appointed committee on criminal law reforms is exploring the possibility of explicitly excluding the use of "illegally obtained evidence" against accused during trials and the need for guidelines on admissibility of evidence submitted in "sealed cover".
The Committee for Reforms in Criminal Laws headed by National Law University-Delhi (NLUD) Vice Chancellor Dr Ranbir Singh is seeking opinion of experts as part of its consultation on the changes that need to be made to the Indian Evidence Act.
The panel set up by the MHA in May this year to undertake a review of criminal laws has already conducted two rounds of consultations on Indian Penal Code while the second round of consultations on Criminal Procedure Code is currently on. While it has asked 22 questions in the first round of consultations on the Indian Evidence Act, the second round will be held later.
The question of illegally obtained evidence has risen following the Supreme Court judgement that made right to privacy a fundamental right with experts saying that it has made the admissibility of illegally obtained evidence is under question and the Evidence Act needs to be modified.
Legal experts are of the view that the only criteria regarding the admissibility of evidence is its “relevance” at present. While illegally obtained evidence is admissible, the courts have ordered that such evidence will be analysed with due caution by the court.
Against this background, the panel has asked experts whether the provisions of the Indian Evidence Act be modified to define what is illegally obtained evidence. The panel also wants experts to expressly stipulate the exclusion of illegally obtained evidence.
They could also suggest certain exceptions to such a mandatory exclusion. The experts have also been asked about providing provisions allowing discretion to the courts to exclude illegally obtained evidence and provide an illustrative list of the factors to be taken into consideration while exercising such discretion.
Amid increasing instances of police submitting evidence in 'sealed covers' to the courts on the pretext that the accused may get an advantage, the panel has also asked experts whether there is a need to provide guidelines for the admissibility of 'sealed cover evidence' in judicial proceedings.
The panel also has sought opinion from experts about the modifying the Evidence Act to include vitiating circumstances such as ‘coercion, violence or torture’ within its ambit. It has also asked about expanding the scope of public servants with the power to arrest and detain in custody.
Another query raised is in the context of evidence against bad character of the accused. Experts have been asked whether the bar against evidence as regards other pending cases (established by judicial precedent) remain limited to cases where trial is pending, or should also bar evidence of cases where appeals are pending.
They have also been asked whether at the stage of sentencing, evidence on previous convictions shall only be admissible where the accused is liable to increased punishment under the IPC or under any other criminal statute.
During its consultation on CrPC, the panel had asked experts whether sexual minorities can demand search by a non-male police officer. It had also asked whether life imprisonment without the possibility of remission is at odds with the penological justification of rehabilitation.
It is also seeking advice on inclusion of the provision for collecting voice samples alpha-numeric/Face ID/Touch ID passwords to electronic devices and other biometric identifiers and the safeguards to be put in place for protecting the right to privacy.
Earlier, a group of former judges and bureaucrats, lawyers and academicians have demanded reconstitution of a government-appointed committee looking into criminal law reforms, saying it has no representation of women, Dalits and minorities in the panel tasked with recommending wide-ranging changes in the statutes.
The group, which included former Supreme Court judges Gopal Gowda and Kurien Joseph among others, also wanted the committee to suspend its functioning at a time the country is in the grip of Covid-19 pandemic.