We’re the generation that grew up believing in magic – the good kind – so much so that some of us even believed that we had magic in our blood. Whether it was Matilda, Harry Potter and his crew, or even the Wizard of Oz that inspired us, we found ourselves waiting for that first sign of confirmation. Obviously, it didn’t come… For most of us.
While we considered ourselves unfortunate, a few centuries ago women who weren’t suspected of having magical abilities felt rather lucky. Old women were labelled as witches for various reasons – poor yield, injury to the livestock, natural disasters, bad weather, misfortune of their neighbours, etc. While finger pointing was enough, sometimes evidence such as the crooked nose of the accused or their hairy lips or a wart on their face was also taken into consideration. If they weren’t hanged, the women were either burnt alive at stake or simply tied to a chair and lowered in a body of water. If she didn’t burn or didn’t down, it would prove that she was a witch. Of course, the “real” evidence could only be obtained once the damage was done.
Trials by ordeal were used by ancient courts to decide the guilt or innocence of the accused. By divine intervention, one who was innocent would be saved while indulging in dangerous ordeals. The judgement was to be delivered by God – judicium Dei. Trial by combat, popularised by Prince Oberyn’s death, is one such example where the winner [of the battle] was not guilty, since God would have protected the innocent. The same logic was applied to corsned (ordeal by bread) where the suspect was made to eat an ounce of bread without chewing; if they choked (because God didn’t help them), they were guilty. Although Gods in their own rights, Ram making Sita walk through fire to prove her chastity falls in the same category.
God may have had some part to play in the determination of guilt, or lack thereof, but He couldn’t have done anything to save those who were put to questioning. People’s heads were slowly crushed to get confessions out of them; some were sawed in half; others had each of their limbs tied to a horse and pulled in different directions. Of course, these are only three of the hundreds of methods used in medieval times to extract information and confessions out of the people.
Over the course of centuries, with the recognition of basic human rights, the suspects are no longer subjected to such methods – at least not on the face of it. Although India is a signatory to the Universal Declaration of Human Rights (Article 5 of which expressly bans one to be “subjected to torture or to cruel, inhuman or degrading treatment or punishment”), it is yet to ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (or the United Nations Convention Against Torture (UNCAT)). In 2017, the Law Commission in its 273rd report which was based on the implementation of the UNCAT, recommended the Centre to finally enact Prevention of Torture Bill. The passing of the Bill will lead to public officers and the State’s agents accountable for any custodial torture, however, two years later, it still maintains its status as a bill.
The barring of extracting information through inhumane means is further assisted by various legal systems around the world following the Fruit of the Poisonous Tree Doctrine, which was first propounded in the United States of America. Keeping in mind the Fourth Amendment to the American Constitution, it was propounded in 1914 that the evidence (the “fruit”) would be inadmissible in the court of law if its source (the “tree”) is illegal; if the tree is poisonous, the fruit would be as well. Thus, any information derived from an illegal search, seizure or arrest would not be admissible as evidence in the courts. However, there is an exception to this doctrine – the rule only applies to such information obtained by police officers or officers acting on behalf of the State, and not information obtained by an individual, third-party.
Even with the coming about of the Right to Privacy Judgement (Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India And Ors.), the circumstances regarding the quality of evidence in the India legal arena remain unchanged. Not only does the UNCAT remain unratified and the Prevention of Torture Bill unpassed, but Indian courts continue to rely upon the “relevance” when it comes to presenting evidence instead of looking at whether it should be legally admissible.
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About the Author
Nisha Gupta is a budding lawyer, MUNer, and an avid Manchester United Football Club fan. Nisha graduated from DPS International School, and is currently pursuing B.B.A. LL.B. from National Law University, Jodhpur. She was recently awarded at the Rajasthan State Judicial academy for a legal debating competition. In addition to law, Nisha possess a keen interest in human rights, international affairs and women's issues.