Applicability of the ‘Fruits of the Poisonous Tree’ Doctrine under the Arbitration and Conciliation
The Doctrine of Fruits of the Poisonous Tree (‘the doctrine’) deals with the question of admissibility of illegally obtained evidence. It holds that evidence (fruit) obtained through illegal means such as search and seizure which is a tainted source (tree), would also be tainted and would be inadmissible. The term was first used by Justice Frankfurter of the Supreme Court of United States in the decision of Nardone v. United States[i], wherein it was held that evidence obtained by wiretapping was inadmissible as it fell afoul of the protection granted by the Fourth Amendment to the U.S. Constitution, which guaranteed right to privacy. The doctrine was primarily enunciated to deter law enforcement agencies from violating the constitutionally guaranteed rights of life and personal liberty. Though the genesis of the doctrine was in a criminal case, it is now being increasingly applied in civil cases in the United States.
This article attempts to understand the applicability of the doctrine in an arbitration scenario governed by the Arbitration and Conciliation Act, 1996, its possible implications and certain solutions. The first part will deal with the applicability of the doctrine in India as propounded by the Hon’ble Supreme Court and inferring its application on arbitration proceedings. It will then deal with certain due process and other concerns which may arise due to admissibility of such evidence and possible solutions thereto followed by a short conclusion. A study of this topic becomes relevant in the current context due to the complete dearth of material and understanding. The author wishes to throw some light on the possible implications and solutions for tribunals while dealing with such evidence.
I. Applicability of the Doctrine in India
The doctrine has no parallels in India. Indian courts have discretionary powers to declare such evidence as admissible or inadmissible. Chapter II of the Indian Evidence Act deals with relevancy of facts based on which Courts have propounded that if the illegally obtained evidence is relevant, there is no bar on its admissibility. A significant ruling of the Hon’ble Apex Court pertaining to admissibility of illegally obtained evidence came in R.M. Malkani v. State of Maharashtra (‘Malkani’)wherein the Court admitted evidence which was gathered through tape recording and in violation of Section 25 of the Telegraph Act, 1885. Relying on the Privy Council’s decision in Kuruma Son of Kanju v. R, the Court held that if evidence is admissible, it matters not how it was obtained. A Constitution Bench of the Apex Court in Pooran Mal v. Director of Inspection of Income Tax (Investigation) laid down an important proposition that under the Evidence Act, the only test for admissibility is relevance and unless there is an express or necessarily implied prohibition in the Constitution or in any other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out. This proposition was again recently affirmed in the Rafale judgment. In Umesh Kumar v. State of Andhra Pradesh (‘Umesh Kumar’). the Supreme Court reiterated the same proposition, with a condition, that such evidence may be discarded if it operated unfairly against the accused.
It is thus clear that illegally obtained evidence is admissible except where it can cause prejudice to the accused. However, in Malkani itself, Ray C.J.I observed that Judges would need to view such evidence with care and caution.
II. Admissibility of illegally obtained evidence in Arbitral proceedings
From the aforementioned discussion, the judicial view that illegally obtained evidence is admissible if it is relevant is overwhelmingly clear. Till date, Courts have not had the opportunity to deal with the admissibility of such evidence before an arbitral tribunal under the Arbitration and Conciliation Act, 1996. Though the cases cited pertained to criminal trials, an important principle can be inferred from them. The view of the Courts is based on the proposition that relevancy is the only test of admissibility in the Indian Evidence Act. Since the Arbitral Tribunal is not bound to follow the Indian Evidence Act and the Code of Civil Procedure as per Section 19(1) of the Arbitration and Conciliation Act, it can be reasonably inferred that the arbitral tribunal would take an approach akin to the one taken by the Courts.
Section 19(4) further grants vast powers to the arbitral tribunal to determine the admissibility, relevance, materiality and weight of any evidence. However, in Skunk Corrugators (P) Ltd. v. Bharat Cooperative Bank (Mumbai) Ltd., the Bombay High Court opined that even if an arbitrator is not bound by provisions of the Evidence Act and the Civil Procedure Code, he cannot overlook principles of natural justice, fairy play and equity at any stage of the proceedings. The Delhi High Court in Davinder Singh. v. Surjeet Singh further observed that the Arbitral Tribunal is the sole judge of the quantity and quality of evidence and has the authority to ignore irrelevant evidence and appreciate evidence.
Summarizing, an Arbitral Tribunal may permit evidence obtained illegally to be admitted if it is found to be relevant. This approach is also consistent with that taken by international arbitral tribunals wherein relevance and materiality are the deciding tests for admissibility of illegally obtained evidence
III. Admissibility of illegally obtained evidence and procedural fairness concerns
Allowing admission of illegally obtained evidence can raise concerns of procedural fairness, which can render an award unenforceable. Section 18 of the Act requires that the parties be treated equally and be given full opportunity to present their case. The Hon’ble Apex Court in Ssayong Engg. & Construction Co. Ltd. v. NHAI had held that breach of principles of natural justice as contained in Section 18 constitute grounds to challenge an award.
In Umesh Kumar the Apex Court was of the view that illegally obtained evidence may be discarded if it operated unfairly against the accused. On a similar standing, an arbitral tribunal should ideally discard illegally obtained evidence if its admission would lead to an unfair treatment of one of the parties. Equal treatment is a cornerstone of arbitration and any derogation from it would leave an award infructuous.
Furthermore, a party may illegally obtained evidence which is privileged or confidential in nature. Admissibility of such evidence could result in unfairness to one of the parties. Thus, the arbitral tribunal, while considering question of admissibility of illegally obtained evidence should ideally keep in mind certain factors:
(a) Admission should not operate unfairly for one of the parties
(b) Evidence sought to be admitted must not be privileged or barred by confidentiality
The tribunal must also deeply consider the nature of illegality as it may influence the future behavior of the parties and encourage use of such evidence in the future, which can hamper the reputation of arbitration.
The arbitral tribunal would therefore need to maintain certain legal standards while considering admissibility of illegally obtained evidence. A possible approach while adjudicating such consideration is the Clean Hands Doctrine which already finds its place in the sphere of international arbitration[ii]. The Hon’ble Apex Court in Arunima Baruah v. Union of India sufficiently expounded on the Clean Hands Doctrine and observed that the party approaching before the Court must not have dirty hands and suppress material facts to gain a favorable remedy. On a similar note, parties approaching before an arbitral tribunal must do so with clean hands and must not themselves be complicit in the commission of an illegal act to get the evidence. This view is based on the principle that a right cannot stem from a wrong. A principle on similar lines has been adopted in international arbitration
It is evident that one of the primary reasons for the introduction of arbitration as a dispute resolution mechanism was to provide speedier justice to the parties without stringent technicalities of the procedural law. The rationale behind not binding arbitration with strict rules of evidence was to minimize formalities and incentivize the efficiency of the arbitral tribunal. However, this does not mean that parties can scoff at the law and freely transgress it. The arbitral tribunals are therefore duty bound to adopt a balancing approach, keeping in mind the relevancy of the evidence, equal treatment of parties and controlling the illegal procedural behavior of the parties. Whatever may be the form and content of the dishonest behavior of parties to arbitration proceedings, the fundamental.
[i] Nardone v. United States, 308 U.S. 338 (1939). [ii] Blair et al, Wikileaks and Beyond: Discerning an International Standard for the Admissibility of Illegally Obtained Evidence, 33 icsid Review 235-259 (2018).
[] Pushkar Deo is a 3rd Year law student at UPES, Dehradun. He is currently the Student Co-Convener of the Moot Court Association and has a keen interest in arbitration law, insolvency law and competition law. For any discussion related to the article, he can be contacted via mail at email@example.com.
Preferred Citation –Pushkar Deo, “Applicability of the ‘Fruits of the Poisonous Tree’ Doctrine under the Arbitration and Conciliation Act, 1996”, Arbitration & Corporate Law Review, Published on 27th January 2021.