In the last post, I put across the idea that the Supreme Court has had a very big role to play in shaping how electronic evidence is treated in India. This influence, I argue, has in some instances led to departures from the statute to reinforce the Court's opinion of the proper state of affairs. Fears about the reliability of such evidence are seemingly underpinned by a desire to ensure the best evidence makes its way to court. But an overemphasis on these issues has led to disturbing a seemingly delicate balance that the Evidence Act maintains between admissibility of evidence and determining its reliability. Here, I develop this thought by showing the progression of law regarding, the admissibility of tape recorded statements.
Before proceeding further, a fun fact about the cases to be discussed. These were either election disputes, or sting operations, where tape recorded statements were adduced in evidence against the accused. None of them were instances where the evidence was relied upon by the accused himself to put forward his defence. Given the (now declining) importance paid to the presumption of innocence in our criminal justice system, one wonders whether gradual introduction of increasingly strict admissibility rules might have been driven by this commonality across these seminal cases.
Partap Singh and the Beginning
The first notable case was Partap Singh v. State of Punjab [(1964) 4 SCR 733]. The Appellant, a Civil Surgeon, had been found guilty of unlawfully accepting 16 Rupees and been placed under suspension. The High Court held against him in Article 226 proceedings, and the Appellant thus approached the Supreme Court. A 3-2 split held in favour of the Appellant. Now, the Appellant had heavily relied upon tape recorded statements to support his case, which the High Court refused to admit in evidence owing to fears of tampering. This approach was rejected by all five judges in the Supreme Court. Tellingly, the Majority observed that "There are few documents and possibly no piece of evidence which could not be tampered with, but that would certainly not be a ground on which Courts could reject evidence as inadmissible or refuse to consider it." Nowhere in the judgment does the Court lay down tests to consider the admissibility of these records. The Majority simply observed that: "Doubtless, if in any particular case there is a well-grounded suspicion, not even say proof, that a tape-recording has been tampered with, that would be a good ground for the Court to discount wholly its evidentiary value." Thereafter, it is stated that the State in this case had applied to the Court to create copies of the original records supplied by the Appellant to satisfy itself on the genuineness of the record. Eventually, the State did not deny the genuineness of the recordings.
Although Partap Singh did not lay down a test, there is a passage that seems to be the basis of the later forays of the Court. While noting that the State made its copies of the tapes, the Majority observed that this was done "to verify (a) whether the voice recorded was that of the person whose voice it professed to be; (b) whether there had been any interpolations or omissions; and (c) whether there had been any other tampering with the records." A reading of the entire judgment leaves no doubt that this is not the Court laying down a test. It appears nothing more than a mere description of what the State would have done. Nonetheless, this position soon came to represent what the Court required to be done in such cases.
'Salim Pan Lao' and the Malkani Phone-Tapping
The concept of entrapping accused persons took a whole new leap with tape-recording technology. It was not long before someone challenged its use, and the Supreme Court specifically addressed this issue in Yusufalli Esmail Nagree v. State of Maharashtra [(1967) 3 SCR 720]. The Appellant had arranged to meet a public servant (here, a clerk) at his residence for paying a bribe. The clerk had already informed the Police, and so a trap was laid. When the Appellant produced the money to hand it to the clerk, he gave that signal 'Salim Pan Lao', and the Police came rushing into the room to catch the Appellant red-handed. The tape recordings were used as evidence to convict the Appellant, who thus took his challenge to their admissibility to the Supreme Court. The three judges cited Partap Singh along with R v. Maqsud Ali [(1965) 2 All ER 464] and held:
"If a statement is relevant, an accurate tape record of the statement is also relevant and admissible. The time and place and accuracy of the recording must be proved by a competent witness and the voices must be properly identified. One of the features of magnetic tape recording is the ability to erase and re-use the recording medium. Because of this facility of erasure and re-use, the evidence must be received with caution. The Court must be satisfied beyond reasonable doubt that the recording has not been tampered with."
The tampering fear is laid bare here. Because of this, from requiring no tests in Partap Singh, the judges in Yusufalli held that the recording's (i) time, (ii) place, and (iii) accuracy must be proved, and voices therein properly identified. Given that this was a criminal case, the Court clarified that all the above must be proved beyond reasonable doubt. Still, the judgment is unclear on whether these observations concerned the admissibility of tape recordings, or merely indicated factors that would affect their reliability. An equally important development here was the reliance placed on the English decision of Maqsud Ali, something I will return to later.
V.V. Giri and the Presidential Election
Apart from trap cases, tape recordings were quite common evidence in election disputes. In N. Rama Reddy v. V.V. Giri [1970 (2) SCC 340], the Court was concerned not purely with the admissibility question, but whether tape recorded statements could be admitted during cross-examination of witnesses to contradict them. The case was sensational as it concerned the Presidential Elections for the country. The Petitioner had sought to confront witnesses using their earlier tape recorded statements and so the Court was required to interpret Sections 146 and 155 of the Evidence Act. After observing the decisions of the U.K. and India, the Constitution Bench here found no difficulty in concluding that such evidence was admissible even for purposes of cross-examining the witness. For reasons best known to the judges, they went no further in discussing the admissibility requirement than by citing various decisions of the High Courts and Supreme Court of India, along with other decisions from English Courts. It remains unclear, therefore, whether the Constitution Bench favoured the view in Partap Singh or that of Yusufalli.
Consolidating a Test: Malkani and Ziyauddin
In R.M. Malkani v. State of Maharashtra [1973 (1) SCC 471], the Appellant (a Coroner) was demanding a bribe from a Doctor to give a favourable report. There were several conversations over the phone between the Appellant and witnesses conveying a demand and on how the bribe was to be paid. When the witnesses approached the Police, the telephone lines of a witness were tapped to record these incriminating calls between him and the Appellant. While the bribe was ultimately not paid, the Appellant was charged with an attempt to demand and accept illegal gratification. The Two judges in Malkani cited the previous decisions on the point mentioned above without engaging with their reasoning. No provision of the Evidence Act was mentioned either. Rather, at paragraph 23 of the SCC reported version we find the Court stating tests that tape recorded evidence must satisfy to be admissible in evidence: (i) the voices of speakers need identification, (ii) accuracy of the record is proved "by eliminating the possibility of erasing the tape record". The near-parity with Maqsud and Yusufalli is apparent. But now, the judges went further and clarified that these tests determined the admissibility of evidence, a question perhaps left open afterYusufalli.
Five judges in Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra [(1976) 2 SCC 17] were required to decide an election dispute which again involved reliance on tape recorded evidence. The High Court had admitted the evidence after having tested that (i) the voices of speakers were identified, (ii) there was no erasure and (iii) the conversation was relevant to the dispute. In upholding the High Court's decision to admit the evidence, the Constitution Bench stated that "these requirements were deduced by the High Court from R v. Maqsud Ali ...". Interestingly, the Court did not cite Malkani although the requirements of Maqsud had already been incorporated in India by that decision. Nor did the Bench provide provide any update/clarification on the tests laid down; they seemed content with status quo.
Conclusion
Between 1965 and 1975, three Constitution Bench decisions considered the admissibility of tape recorded statements, and said very different things. The gradual development of strict admissibility criteria for electronic evidence is clear, and it certainly seems driven by the fear of tampering this evidence. An underlying commonality missed out by commentators, however, is the heavy reliance on the English Court of Appeal decision in Maqsud. The Supreme Court imported those tests over the course of two decades. Next time, I try and argue how this was a mistake. I also discuss how the Court compounded this mistake: the decision in Ram Singh v. Col. Ram Singh [1985 (Supp) SCC 611].
Although Partap Singh did not lay down a test, there is a passage that seems to be the basis of the later forays of the Court. While noting that the State made its copies of the tapes, the Majority observed that this was done "to verify (a) whether the voice recorded was that of the person whose voice it professed to be; (b) whether there had been any interpolations or omissions; and (c) whether there had been any other tampering with the records." A reading of the entire judgment leaves no doubt that this is not the Court laying down a test. It appears nothing more than a mere description of what the State would have done. Nonetheless, this position soon came to represent what the Court required to be done in such cases.
'Salim Pan Lao' and the Malkani Phone-Tapping
The concept of entrapping accused persons took a whole new leap with tape-recording technology. It was not long before someone challenged its use, and the Supreme Court specifically addressed this issue in Yusufalli Esmail Nagree v. State of Maharashtra [(1967) 3 SCR 720]. The Appellant had arranged to meet a public servant (here, a clerk) at his residence for paying a bribe. The clerk had already informed the Police, and so a trap was laid. When the Appellant produced the money to hand it to the clerk, he gave that signal 'Salim Pan Lao', and the Police came rushing into the room to catch the Appellant red-handed. The tape recordings were used as evidence to convict the Appellant, who thus took his challenge to their admissibility to the Supreme Court. The three judges cited Partap Singh along with R v. Maqsud Ali [(1965) 2 All ER 464] and held:
"If a statement is relevant, an accurate tape record of the statement is also relevant and admissible. The time and place and accuracy of the recording must be proved by a competent witness and the voices must be properly identified. One of the features of magnetic tape recording is the ability to erase and re-use the recording medium. Because of this facility of erasure and re-use, the evidence must be received with caution. The Court must be satisfied beyond reasonable doubt that the recording has not been tampered with."
The tampering fear is laid bare here. Because of this, from requiring no tests in Partap Singh, the judges in Yusufalli held that the recording's (i) time, (ii) place, and (iii) accuracy must be proved, and voices therein properly identified. Given that this was a criminal case, the Court clarified that all the above must be proved beyond reasonable doubt. Still, the judgment is unclear on whether these observations concerned the admissibility of tape recordings, or merely indicated factors that would affect their reliability. An equally important development here was the reliance placed on the English decision of Maqsud Ali, something I will return to later.
V.V. Giri and the Presidential Election
Apart from trap cases, tape recordings were quite common evidence in election disputes. In N. Rama Reddy v. V.V. Giri [1970 (2) SCC 340], the Court was concerned not purely with the admissibility question, but whether tape recorded statements could be admitted during cross-examination of witnesses to contradict them. The case was sensational as it concerned the Presidential Elections for the country. The Petitioner had sought to confront witnesses using their earlier tape recorded statements and so the Court was required to interpret Sections 146 and 155 of the Evidence Act. After observing the decisions of the U.K. and India, the Constitution Bench here found no difficulty in concluding that such evidence was admissible even for purposes of cross-examining the witness. For reasons best known to the judges, they went no further in discussing the admissibility requirement than by citing various decisions of the High Courts and Supreme Court of India, along with other decisions from English Courts. It remains unclear, therefore, whether the Constitution Bench favoured the view in Partap Singh or that of Yusufalli.
Consolidating a Test: Malkani and Ziyauddin
In R.M. Malkani v. State of Maharashtra [1973 (1) SCC 471], the Appellant (a Coroner) was demanding a bribe from a Doctor to give a favourable report. There were several conversations over the phone between the Appellant and witnesses conveying a demand and on how the bribe was to be paid. When the witnesses approached the Police, the telephone lines of a witness were tapped to record these incriminating calls between him and the Appellant. While the bribe was ultimately not paid, the Appellant was charged with an attempt to demand and accept illegal gratification. The Two judges in Malkani cited the previous decisions on the point mentioned above without engaging with their reasoning. No provision of the Evidence Act was mentioned either. Rather, at paragraph 23 of the SCC reported version we find the Court stating tests that tape recorded evidence must satisfy to be admissible in evidence: (i) the voices of speakers need identification, (ii) accuracy of the record is proved "by eliminating the possibility of erasing the tape record". The near-parity with Maqsud and Yusufalli is apparent. But now, the judges went further and clarified that these tests determined the admissibility of evidence, a question perhaps left open afterYusufalli.
Five judges in Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra [(1976) 2 SCC 17] were required to decide an election dispute which again involved reliance on tape recorded evidence. The High Court had admitted the evidence after having tested that (i) the voices of speakers were identified, (ii) there was no erasure and (iii) the conversation was relevant to the dispute. In upholding the High Court's decision to admit the evidence, the Constitution Bench stated that "these requirements were deduced by the High Court from R v. Maqsud Ali ...". Interestingly, the Court did not cite Malkani although the requirements of Maqsud had already been incorporated in India by that decision. Nor did the Bench provide provide any update/clarification on the tests laid down; they seemed content with status quo.
Conclusion
Between 1965 and 1975, three Constitution Bench decisions considered the admissibility of tape recorded statements, and said very different things. The gradual development of strict admissibility criteria for electronic evidence is clear, and it certainly seems driven by the fear of tampering this evidence. An underlying commonality missed out by commentators, however, is the heavy reliance on the English Court of Appeal decision in Maqsud. The Supreme Court imported those tests over the course of two decades. Next time, I try and argue how this was a mistake. I also discuss how the Court compounded this mistake: the decision in Ram Singh v. Col. Ram Singh [1985 (Supp) SCC 611].
No comments:
Post a Comment