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Report No. 94

11.3. The first issue-need for reform.-

With reference to the first issue,1 which raises the basic question of the need for law reform, we are of the opinion that the present position in India,2 under which the legal "relevance" of the evidence of the facts in issue in the particular proceedings is the principal consideration, cannot be regarded as totally satisfactory. From time to time, there must arise cases where the illegality or impropriety is so shocking and outrageous that the judiciary would wish that it had a power to exclude the evidence. But the present Indian law has no specific provision recognising such a power. The general understanding of the legal position in India puts the court within very narrow confines. The matter is viewed primarily as one of interpretation of a specific statutory provision-if and where a statutory provision regulating the gathering of evidence of the type at issue in a particular case is shown to be in existence.

If, on a proper consideration of the particular provision that comes up for construction, the court cannot regard admission of the evidence as barred by that provision, then there is no residuary power in the court to reject the evidence, howsoever gross may be the illegality perpetrated in collecting it and whatever may be the extent to which those concerned with law enforcement may have invaded human dignity. This position, which represents the narrowest approach of all the four models3 prevalent amongst the major legal systems, must cause injustice on many occasions. The major deficiency in the present Indian position is that it reflects a legalistic and statute-oriented approach, which completely shuts out any consideration of deeper human values. We think that there ought to be recognised a power in the court to take into account all these important aspects, which are of basic relevance to the functioning of an agency charged with the administration of justice.

1. Para. 11.1, supra.

2. Paras. 2.3 and 2.7 and Chapter 3, supra.

3. Paras. 2.3 to 2.6, supra.



Evidence Obtained Illegally or Improperly - Proposed Section 166a of the Indian Evidence Act, 1872 Back




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