For long, India’s stance on illegally-obtained evidence has been clear-cut: notwithstanding its origins, if relevant to the proceedings, it would remain admissible in court. Though this is a position the Supreme Court has repeatedly taken – from telephonic conversations in R.M. Malkani v. State of Maharashtra^[i] to illegal searches in State Of M.P Through CBI & Ors. v. Paltan Mallah & Ors^[ii] – it continuously finds itself at odds with other rights afforded by the Constitution, namely privacy. If law enforcement or anyone else isn’t bound by the limits set by law in investigation, what remains to deter them from bypassing it entirely?

This conflict manifests, for the most part, in contradictory judgments between High Courts and the Supreme Court with regards to evidence deemed admissible. In a civil revision petition last month, the Telangana High Court declared that secretly recording a spouse’s telephonic conversations without their consent would infringe on their right to privacy, rendering the evidence obtained inadmissible.

Yet, this stance directly opposes the Supreme Court’s – which had, in Vibhor Garg v. Neha^[iii] declared the opposite true, laying special emphasis on the right to a free trial. This is not the first occurrence of a contradiction so glaring – as will be discussed later – and perhaps won’t be the last. What this article precisely intends to explore is the root of these contradictions; the tumult between privacy and justice in India. This is done in three parts: first by examining the doctrine surrounding admissibility of illegal evidence in India; then, how it interacts with the fundamental right to privacy; and, finally, where the Telangana High Court’s judgment sits in the larger context altogether.  

India’s Take On The Fruit Of Poisonous Tree Doctrine

Per the Law Commission’s report on the matter^[iv] in 1983, the admissibility of illegally and improperly obtained evidence in a criminal trial in common law countries can be divided into four main categories. In brief: countries where illegally obtained evidence is admissible because there exists no provision to the contrary; countries where the method of obtainment can be used as grounds by the court for rejection; where there exists a specific statute excluding its admission; and where exclusion flows from a constitutional guarantee.

Of these, India falls within the first category. Viewing the erstwhile Indian Evidence Act (and, by extension, the Bharatiya Sakshiya Adhiniyam) as an exhaustive document, Indian courts operate on the belief that the absence of any provisions to the contrary suggests acceptance, impropriety notwithstanding. 

Pooran Mal v. Director of Inspection of Income Tax^[v] in particular laid this out in forthright terms: the IEA considers ‘relevancy’ as the only test of admissibility under its Section 5 (and now the BSA, under its Section 3). Combined with the absence of any prohibitive provision, there was no reason to refuse admittance.

R.M. Malkani, mentioned earlier, brought a moralistic facet to this debate: that while an innocent citizen would be protected against wrongful interference (here, via tapping a telephonic conversation), “[this] protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants.”

Thus a distinction is drawn between the innocent and the guilty man before the law, arguably before the judiciary would even get the opportunity to step in. The case was cited by the Supreme Court as recently as in Vibhor Garg, which speaks for itself regarding its precedential value – that this moralistic framing perhaps remains prevalent even today.

Public Safety & Fair Trial’s Run-In With Privacy

In their defense, all the judgments cited herein were in an Indian landscape where the right to privacy was still not a fundamental one – giving them good reason not to prioritize it overmuch.

This all changed following the Puttaswamy^[vi] judgment, which strictly established otherwise. Its four-pronged proportionality test meant that any infringement on an individual’s privacy needed to be backed by legality, needed to satisfy the proportionality test; enough reasoning to render illegal evidence inadmissible.

Nor has this bit of precedent remained strictly hypothetical: in Vinit Kumar Singh v. CBI^[vii], the Bombay High Court dismissed in entirety illegally recorded telephonic conversations, citing Puttaswamy, and in the process straying from the public safety-adjacent justifications cases like R.M. Malkani had attracted.

This was a substantial shift unto itself, considering the oft-criticized phenomenon of national interests overriding personal rights under the judiciary. While a constitutional precedent was arguably set, it was not one with explicit approval from the Supreme Court, in light of Vibhor Garg.  

Vibhor Garg, for its part, has drawn plenty of criticism as well. By prioritizing one fundamental right (fair trial) over the other, it discredits the value of individual privacy, and, it has been argued, considering the gender-gap when it comes to digital literacy, disproportionately harms women.   

What The Telangana High Court’s Decision Says

All this to say: India’s evidence admissibility doctrine exists in a sort of legal purgatory, and an unacknowledged one at that. It is read around, or its exceptions are made the most out of, in order for the fruit of the poisonous tree to be declared edible still.

As with Vinit Kumar, the Telangana High Court’s judgment is another instance of grappling with this strange lacuna. Through contradicting Vibhor Garg, it validates Puttaswamy. A contradiction is thus created: can the rights of an individual not be reconciled at all with the duty of the court?

Not entirely. Gautam Bhatia, in his book, Transformative Constitution, has argued that Selvi v State of Karnataka^[viii] drew a distinction between illegally obtained and unconstitutionally obtained evidence; the former, admissible if relevant, but the latter, inadmissible in all circumstances.

Privacy is a constitutional right. Privacy, then, cannot be repeatedly set aside when deemed inconvenient to the purposes of the state, or even the rights of another individual; at least not without becoming only a right in name.

The judgment of the Telangana High Court presents a promise of just the opposite – where privacy does not need to exist in the shadow of public safety, or fair trial, or any other such claim. While promising in concept, this jurisprudence could just as easily be struck down by the Apex Court – or, on the other hand, be crystallized into true precedent with its approval.

^[i] R.M. Malkani v. State of Maharashtra 1973 AIR SC 157.

^[ii] State Of M.P Through CBI & Ors. v. Paltan Mallah & Ors. 2005 INSC 46.

^[iii] Vibhor Garg v. Neha 2025 INSC 829.

^[iv] Law Commission, Evidence Obtained Illegally or Improperly, (Law Com No 94, 1983). 

^[v] R.M. Malkani v. State of Maharashtra 1973 AIR SC 157, para 31.

^[vi] Justice K.S.Puttaswamy (Retd) And Anr. vs Union Of India AIR 2017 SC 4161.

^[vii]  Vinit Kumar Singh v. CBI AIR 2019 BOM 1117.

^[viii] Selvi & Ors v. State of Karnataka AIR 2010 SC 1974.