By Abinand Lagisetti
Introduction
One of the most fundamental characteristics of the complex Indian Criminal Law framework is the presumption of innocence bestowed upon the accused by the Courts and the burden of proof conferred upon the prosecution to prove the accused’s guilt. This principle was borrowed from English criminal law system and has been upheld by Indian courts on multiple occasions to be an integral part of Indian criminal jurisprudence. Furthermore, the Courts have also established a very high threshold where the prosecution is required to prove that the accused is guilty beyond a reasonable doubt. However, recently, there has been a surge in legislation implementing a reverse onus clause, through which the burden shifts from the prosecutor to the accused to prove their innocence. For example, Section 106 of the Indian Evidence Act, 1872 statutorily legitimizes for the establishment of an evidentiary reversal of the burden of proof in situations where the evidence is solely within the knowledge of the accused. Though these reverse onus clauses provide for swifter legal proceedings in the majority of circumstances, it also comes with the risk of being hasty and injudicious. It is this very risk that the author aims to analyze for the remainder of this paper, with specific attention paid to its validity, detrimental impact and its unique correlation with the death penalty.
The origin of the presumption of innocence
The principle of presumption of innocence upon the accused originated in English criminal jurisprudence and was then subsequently incorporated into the Indian criminal jurisprudence. The English House of Lords in Woolmington v D.P.P set the basic parameter for proof of guilt in criminal cases. It held that the burden of proving the guilt of the accused was always upon the prosecution and that the accused shall be presumed to be innocent till the guilt is proven by the prosecution and there shall be no presumption of guilt upon the accused in any circumstances. In India, the principle of presumption of innocence upon the accused was not established through any legislation, for instance, the Indian Evidence Act, 1872, but rather it was first established by the Indian courts in Queen-Empress v Ramana and Ashraf Ali v Emperor. Therefore, in India the right of the accused to be presumed to be innocent until proven guilty is neither a Constitutional right nor is it expressly recognized as a statutory right. However, multiple scholars argue that in spite of no statutory provision, the inherent value of this right made it acquire higher status in the Indian criminal justice system. Furthermore, the members of the Constituent Assembly took it for granted that presumption of innocence as a right of the accused already exists in the Indian legal system due to the inherent nature of the right.
Establishment of reverse onus clauses and their detrimental impact
Though the courts in India have recognized the presumption of innocence principle, as mentioned earlier, there has been a surge in reverse burden clauses being enacted in legislations containing presumption clauses that can be inferred against the accused. A few notable legislations with reverse onus clauses are the Protection of Children from Sexual Offences (“POCSO”) Act, 2012, and the Narcotics Drugs and Psychotropic Substances (“NDPS”) Act, 1985. The Indian courts on multiple occasions have held that the threshold for the reversal of burden shall be the preponderance of probabilities and not the frequently used standard of beyond reasonable doubt. However, it has been contended by multiple academicians that the ground-level impact of a reversal of the burden of proof is the same as the imposition of strict liability which disregards the mandatory requirement of a guilty mind due to the sheer lack of resources with the accused.
The main argument in favour of reversal of burden upon the accused is the difficulty in proving certain facts. One such example is Section 113B of the Indian Evidence Act, 1872, which establishes such a presumption regarding dowry death. Another important argument in favour of reverse onus clauses is that proving facts within the knowledge of the accused is practically impossible unless the burden is on the person with the special knowledge. This argument relies upon Section 106 of the Indian Evidence Act, 1872, for the same and contends that this flows from the principle of necessity.
In contrast to the aforementioned arguments, the Law Commission of India’s 180th Report states that the basic principle for the prosecution to prove the charge of guilt is being diluted by the enactment of such clauses by the Legislature in multiple statutes. An example of such reverse burden clauses is Section 29 and Section 30 of the POCSO Act, 2012, which the author shall discuss later with respect to the argument on the death penalty. Such presumptions are unjust because of the requirement of the high threshold of the burden of proof of innocence upon the accused in contrast to their lack of resources. The situation created by such presumption coerces the accused to give evidence in the court which negates the fundamental principle of criminal law that the accused is a competent witness and not a compelled witness.
Interestingly, in Shambunath Mehra v State of Ajmer, it was even held that there can’t be an absolute principle to require a person to prove something which the other party alleges to be within their special knowledge. However, there has since been no statutory provision to regulate the claims of special knowledge on part of the prosecution. In light of the aforementioned impact of reverse onus clauses, it is the author’s primary contention that the principle of presumption of innocence is constitutionally protected under the provision of Article 20(3) of the Constitution of India.
Validity and regulation of reverse onus clauses
Over time, certain scholars contend that there has been a distinct transition from the requirement of the prosecution to establish certain facts into the accused having to establish their own innocence in India. In Noor Aga v State of Punjab, the Supreme Court held that reverse onus clauses were constitutional even when they impose a legal burden of establishing innocence upon the accused. Relying upon multiple judgements on these specific provisions, the current legal position is that the prosecution must prove the initial facts which create a presumption of guilt which then shifts the burden upon the accused to rebut the presumption. An example of this framework is present in Section 35 and Section 54 of the NDPS Act, 1985.
Nowadays, the legislature consistently resorts to the incorporation of reverse onus clauses in statutes regularly and ignores the liberties curtailed due to the same. However, notably in 2016, a workable solution was put forth by the Hon’ble Bombay High Court to counter the recurring usage of reverse onus clauses which dilutes the value of the entire justice system. Justice Gupte in his concurring opinion in Sheikh Zahid Mukhtar v State of Maharasthra, established a four-fold test for considering the burden of any reverse burden clause. First, is the State required to prove basic or essential facts to raise a presumption of balance as to the facts? Second, does the proof of those facts involve a burden to prove negative facts? Third, are these facts within the special knowledge of the accused? Fourth, does this burden subject the accused to any hardship or oppression? Only if a reverse onus clause satisfies all these aforementioned conditions shall it be considered to be valid. This comprehensive test is a very large advancement in support of the presumption of innocence principle as it restricts the legislature from relying upon reverse onus clauses at the drop of the hat and requires the clause to satisfy this test to be constitutionally valid.
The correlation between reverse onus clauses and the death penalty
In Bachan Singh v State of Punjab, the Supreme Court propounded the rarest of rare doctrine which upheld the constitutionality of capital punishment but authorized the use of it only in the rarest of rare cases. As an aftermath of this decision, the death penalty has been enumerated as a method of punishment under 18 legislations. However, some of these legislations also contain reverse onus clauses. It is established that for the application of the rarest of rare doctrine, the conviction has to respect the due process jurisprudence and the accused’s right to a fair trial. However, the impact of these reverse onus clauses is that there is a reversal of the burden on the accused to establish his innocence and escape the death penalty. The Law Commission of India, in its 262nd report on the death penalty, observed that a large number of legislations that provide for death penalty do not provide for the full range of fair trial guarantees, especially the principle of presumption of innocence upon the accused. Thereby, these provisions compromise the principle of legality and even the death penalty conviction. The framework of the POCSO Act, 2012, provides a suitable example. Section 29 and Section 30 of the Act provides for both a presumption of guilt upon the accused and the presumption of his/her mental stability, while Sections 4, 5 and 6 of the Act allow for the death penalty. It is the author’s contention that the reliance upon the presumption of guilt for a death penalty conviction dilutes the judicial process and leads to hasty justice, which is indeed an oxymoron.
CONCLUSION
To conclude, though there is a deep consideration of the argument on the detrimental impact of reverse onus clauses as mentioned above, the author is of the opinion that there cannot be a complete eradication of the same. However, for these clauses to work effectively without violating the rights of the accused, there needs to be a constitutionally protected presumption of innocence principle. With respect to the death penalty, the author submits that for punishment so severe, there cannot be any compromise on the principle of legality and the right to a fair trial. Thereby, for a death penalty conviction, the entire burden of proof should rest upon the prosecution with no reversal of the same. There has never been a stronger need for the regulation of these clauses and the author believes that the comprehensive four-fold test established by Justice Gupte shall regulate and restrict the notoriously recurrent usage of these clauses.
[The author is a first-year B.A. LL.B (Hons) student from NALSAR University of Law, Hyderabad, with a keen interest in criminal law.]
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