With changing times and advancements in technology, the private spaces of individuals have expanded to include conversations on telephones and social media. With the introduction of new and hassle-free modes of communication, criminal misdeeds in this arena are also pervading. The government, in the pursuance of its role to curb such offences, has taken a resort to measures such as surveillance or interception. Surveillance as a mode of keeping track of the deeds of particular citizens suspected of being a threat to public good such as national security or public order is, to a certain extent justified.
Furthermore, there have been situations where these laws have been misused by the government to infringe upon fundamental rights. For exercising surveillance on the citizens or group of citizens, the government can take a resort to two legislations laid down for the purpose, namely, The Indian Telegraph Act, 1883 and the Information Technology Act, 2000. According to these legislations, the state can employ these legislations for the interception in exceptional circumstances. The IT Act further widens these criteria of surveillance by introducing additional and undefined grounds which are over and above the reasonable restrictions in Article 19(2), namely defence of India and investigation of cognizable offences which might also involve minor offences as well. The exceptional circumstances, namely, security, sovereignty, and integrity of India have not been defined anywhere in the constitution, further giving the government the scope of interpretation and to wield surveillance according to its interpretation.
The Review Committee set up by the government to approve the requests of surveillance is a rosy policy since it consists of the members of the executive only. Therefore, to intercept the conversations of the individuals, the state suspects, becomes undemanding, which leads to situations where the state can unconstitutionally procure the private conversations and present them as evidence in the court against the suspected person. Moreover, the state has shown disregard for the basic rights by exercising search & seizure citing “exceptional circumstances” where fundamental rights can be violated. In the aforementioned situations, with the widened scope of surveillance by the government and breaching the rights of the citizens to some extent, the institution, the citizenry looks up to is the judiciary, which is seen as the epitome of fairness. The judiciary, in the relevant situations, should analyze the constitutionality of the surveillance procedure resorted to for the procurement of such evidence and give primacy to the soundness of the Fundamental Rights of the accused/ suspected as each person, irrespective of the accusations, has the right to be secured with their rights enshrined.
Analysis of the admissibility of the evidence procured through surveillance by the state
Concerns for the authorities flouting the due process of law or taking advantage of the loopholes in the legal procedures have made the Judiciary make certain significant contentions concerning the admissibility of evidence procured through surveillance or seizure, which have been discussed in detail. In the case of PUCL v. UOI and Anr., the Supreme Court was considering a Public Interest Litigation (PIL) under Article 32 of the Constitution in which the incidents of phone tapping had been highlighted. The court contended that the right to hold a telephone conversation in the privacy of one’s home or office without interference can be claimed as the right to privacy. Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is an important facet of a man’s private life. The Supreme Court was of the view that telephone tapping would, infract Article 21 of the Constitution of India.
In the case of Vinit Kumar v. CBI, where there were three surveillance orders which constituted the legal bases for the interception of Vinit Kumar’s (petitioner) phone calls. The court quashed the order of surveillance and ordered the evidence to be destroyed since the exceptions of public safety and emergency were not satisfied.
- More observed that since the situation was not exceptional, Government cannot resort to phone tapping and further remarked, “We may also add here that if the directions of the Apex Court in PUCL’s case (supra) which are now re-enforced and approved by the Apex Court in K. T. Puttaswamy (supra) as also the mandatory rules regarding the illegally intercepted messages under an order having no sanction of law are permitted to be flouted, we may be breeding contempt for law, that too in matters involving infraction of a fundamental right. To declare that to infringe the fundamental rights, in the administration of criminal law, the ends would justify the means would amount to declaring the Government authorities may violate any directions of the Supreme Court or mandatory statutory rules to secure evidence against the citizens. It would lead to manifest arbitrariness and would promote the scant regard to the procedure and fundamental rights of the citizens, and law laid down by the Apex Court.”
The judge in the Puttaswamy case affirmed the dissenting view of J. Subba Rao. As observed by Subba Rao J. in his noteworthy dissent in Kharak Singh v. State of UP, Art. 19 does not only recognize physical restraints but also psychological inhibitions. The psychological fear and apprehension that the government may carry out surveillance, is sufficient to alter individuals’ behaviour, including the act of dissent. In another case of Tomanlal Sahu v. State of Chattisgarh, where the petitioner was dismissed from the services merely based on telephonic conversations with a criminal, the court contended that telephone tapping, since unconstitutional and because the circumstances were not exceptional to warrant its need, is inadmissible and dismissed the orders of ending their services. In the aforementioned precedents, the observations have been such that the courts, even if the evidence is relevant, have denied their admission or its impact on the proceedings, giving primacy to Fundamental Rights.
International laws & precedents dealing with the admissibility of evidence collected through surveillance or seizure
Fourth Amendment to the US Constitution, 1792 states that “People have a right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizure”. This amendment puts a check on the unfettered power of police to conduct search and seizure and protects its citizens’ reasonable expectation of privacy. Despite the fourth amendment in place, incidents of the police unreasonably extracting evidence by way of the search were prevalent. The court realized that if such evidence were allowed to be admitted then the effectiveness of the amendment would be reduced to mere words, following which, the court in the case of Weeks v. the USA, propounded the “exclusionary rule” according to which the evidence acquired through illicit means would be inadmissible in the court. Emanating from this, the USA courts laid down the “doctrine of poisonous tree” which means any secondary evidence obtained in the course of an illegal search or otherwise will also be inadmissible. Simply put, this doctrine means that if the source of evidence is corrupt, any product following it will be treated the same.
In another case of Mapp v. Ohio, the police seized some seditious books from the residence of Mapp, the court did not concur to the admissibility of such evidence acquired through violation of privacy. In the Katz v. USA case, it was declared that the protection of the Fourth Amendment would be extended to all recording of oral statements overheard without any technical trespass under property law, i.e. by methods such as telephone tapping. In overturning the Olmstead judgment, which was in favour of looking at the issue of telephone tapping outside of the right to privacy and the Fourth Amendment, the court held that recording by police of conversation in a public telephone booth was a violation of the Fourth Amendment because the speaker had a reasonable expectation of privacy in the booth. In the aforementioned precedents, the observation is similar to that of the Indian precedents, where the courts regarded the privacy of individuals as the foremost concern, expressing sheer disregard to any evidence, no matter the relevance, in the judgment to preserve the democratic ideals.
The judiciary is seen as the guardian of the constitution and the rights of the citizens. Hence, admitting evidence that has been procured by way of illicit means is not just a disregard to the constitutional values but paving the way for serious contempt of court orders and the due process of law by the authorities, to procure evidence. The court’s flexible attitude concerning the admission of evidence only based on its relevance would set a precedent that the authorities are allowed to use fanciful, illegal measures to justify the significance of the evidence which would further lead to a situation of lawlessness. Therefore, the judiciary, befitting its role, should not get diverted by the relevance of the evidence in a particular case when the question of lawfulness and democratic ideals is involved.
Author(s) Name: Runjhun Sharma (Dr. Ram Manohar Lohiya National Law University, Lucknow)
 Constitution of India 1950, art 19(2).
 KS Puttaswamy & Anr. v. Union of India, (2017) 10 SCC 1.
 Vinit Kumar v. CBI, (2019) SCC OnLine Bom. 3155.
 Tomanlal Sahu v. State of Chattisgarh, (2021) SCC OnLine Chh 711.
 Weeks v. USA,  232 U.S. 383.
 Mapp v. Ohio, 367 U.S. 643.
 Katz v. USA,  389 US 347.
 Olmstead v. USA,  277 US 438.