Often authorities indulge in illegal means for collecting evidence, and in certain situations this evidence is sufficient for the culprit to be held guilty. There are several methods by which evidence may be illegally obtained, e.g., by eavesdropping, illegal search, violating the body of a person and other methods which shock the human conscience as well as one’s fundamental rights.
Under the Indian Law there is no statutory prohibition against illegally obtained evidence under either the Indian Evidence Act of1872 or the Code of Criminal Procedure of 1973. Therefore, the Indian judicial system follows the traditional approach according to which the means of obtaining evidence does not affect the admissibility within the court.
The Law Commission of India in its Ninety Fourth report stated that there are four models in the Common law countries with regards to the admissibility of an Evidence, which are as follows-
1) Strict Approach – the strict approach is followed in nations like India wherein the illegality or the illicit means of procuring the evidence does not render the evidence obtained as inadmissible in the court.
2) Moderate approach – these situations arise in in nations like Australia and Scotland wherein the admissibility of the illegal evidence or the improper means of evidence is determined at the time of each trial and rests on the discretion of the judges.
3) In the third category the evidence is excluded from admissibility by some specific statutory provision and such admissibility is in violation of some substantive norm of conduct
4) In the fourth category where countries like USA are included a constitutional guarantee or a judicial construction of a constitutional guarantee, excludes certain evidence from use at the trial, where the evidence has been obtained in the violation of such constitutional guarantee. In the United States the Fourth Amendment and the Fourteenth Amendment provides for such protection.