Constitutionality of Reverse Onus Clauses Under POCSO Act

             By Kavya Lalchandani

Reverse onus clauses are usually found in criminal statutes where the burden of proving innocence is shifted on to the defendant or the accused after certain foundational facts have been proven by the prosecution. Under the POCSO Act, Section 29 and 30 deal with reverse onus clauses and are stated as under:

Section 29 states that whenever a person is prosecuted for committing, abetting to commit or attempting to commit an offence under Sections 3, 5, 7 and 9 of the Act, the Special Court shall presume that the offence has been committed, abetting or attempted to commit the offence unless the accused can prove to the contrary.[1]

Section 30 deals with presumption of culpability of the mental state of the accused with regards to any offence committed under the POCSO Act until the defence proves it otherwise. Further, sub-clause (2) states that the defence has to prove the innocence of the accused beyond reasonable doubt and not on the basis of preponderance of probabilities.[2]

Both the Sections 29 and 30 of the Act should be held to be ultra vires of the Constitution as they violate the fundamental rights of the accused and principles of procedural fairness under the common law where the burden of proof lies on the prosecution to prove the case against the accused beyond any reasonable doubt.^[3] Until this is proved, there is a presumption of innocence in favour of the accused.

The pair of presumptions lead to the commencement of proceedings against the accused with a presumption of guilt. Therefore, it is the prosecution which should prove the concurrent presence of mens rea and actus reus beyond a reasonable doubt.

[A] The sections violate the ‘Right to Equality’ as envisaged under Article 14 of the Constitution

Right to equality is one of the most basic fundamental rights as provided in the Constitution and it encompasses both- Right to equality and equality of opportunity. The equals have to be treated equally not only under substantive laws but also procedural laws.[4]

The differentiation can only be made on the basis of intelligible differentia and the differentiation should have a nexus with the object of the legislation.

There is no rational connection between ‘object and restriction’ as determined by the statute. The object of the Statute is ‘protect children from sexual abuse and sexual exploitation’^[5] and not increase the conviction rate even if it is erroneous.

The Legislature was aware that there were chances of false accusation and hence had put Section 22 of the POCSO^[6] which punishes the persons who falsely accuse the other of offences under the Act.

It might be for the best interest of the child that such provisions have a statutory recognition but the rights of the accused are equally important and have to be balanced against the rights of the victim.

Article 14 strikes at arbitrariness and unreasonable laws and therefore the set of presumptions are violative of the same.

In R v Oakes, the Court developed a two-fold test to assess the reasonableness in classification:

1. The object of the legislation and classification should have a rational nexus.
2. Test of proportionality where there should be rationality, minimum impairment of the right of freedom and proportionality with regards to means and effect.^[7]

Even if the object of the statue is to secure justice and peace in the society or to secure interests of the public at large, the Rule of Law demands that no person can be subjected to harsh or discriminatory treatment.[8] Even if the classification is valid in the interests of the public, the effect on the innocent accused should be minimal and should not cause grave injustice to the accused.

The result-oriented approach of the Legislature in this context is arbitrary and against the spirit of Article 14. The Legislature cannot over include a particular class of accused without attaching any precondition even if the society considers that offence greater than others. This is incompatible with the principles of punishment and will lead to arbitrary decisions. The burden of proof in criminal cases is always beyond a reasonable doubt. Such presumption rules out the burden on the prosecution in the very first instance and increases the burden on the accused arbitrarily.

[B] The sections violate the ‘Right to life and personal liberty’ under Article 21 of the Constitution

The presumptions not only violate the fair procedure established by law but also violate the Right to a fair trial.

Article 14 pervades Article 21 and something which is not a valid procedure under Article 14 will automatically not be a fair procedure under Article 21.[9] It is a settled law that the procedure established by law that procedure, as interpreted by the Hon’ble Supreme Court, is in context of due process of law which includes the presumption of innocence as an integral part of it. The procedure established by law which can be used to curtail the freedom under this section has to be fair, just and reasonable, and non-arbitrary.[10]

           i.  Sections 29 and 30 of the POCSO Act are not in consonance with the ‘procedure             established by law’.

Section 29 states that the Court ‘shall’ presume that the offences under section 3, 5, 7 and 9 have been committed by the accused. The word ‘shall’ as opposed to ‘may’ puts an obligation on the Courts to presume that the accused has in fact committed the offence.

In Yogesh Maral v State of Maharashtra, the Court stated that the ambit of Section 29 is quite wide and due care and precaution shall be used before applying it to any of the cases hinted towards its unconstitutionality. The Court further stated that a plain reading of Section 29 would suggest that it is beyond the normally accepted principles of criminal jurisprudence.[11]

In State of Maharashtra v Dilip Gajbhare, the High Court of Bombay did not acquit the accused stating that discharging burden of proof based on a mere preponderance of possibilities is not sufficient and accused has to discharge his proof beyond a reasonable doubt.[12]

Under Section 29, there is no guidance as provided by the legislature. In other laws, for instance, the Indian Evidence Act and NDPS Act, the situation is quite different. The presumptions under these sections have a precondition or some other condition attached to them.

Section 113B states that the Court shall presume that the accused caused the woman’s death if the husband or any of the relatives had subjected her to cruelty with regards to the demand of dowry.[13] The statute uses the word ‘shall’ but is not capable of being loosely interpreted in fact again attaches a precondition to it which is even strict that only when the woman would be subjected to cruelty in relation to demand of dowry.

Further, in the NDPS Act, Sections 35 and 54 were held to be constitutional in Noor Aga v State of Punjab.[14] But the Court, acknowledging that presumption of innocence of the accused is a human right, categorically stated that the burden of proof to be discharged by the accused will be based on the preponderance of probabilities and not beyond a reasonable doubt. The Court further stated that certain foundational facts have to be proved by the prosecution before the burden shifts on to the accused.

In Naresh Kumar v State of Himachal Pradesh which again dealt with the presumptions under Section 35 and 54 of the NDPS Act, stated that the presumptions are a rebuttable one and would not come into play until and unless the prosecution establishes a case against the accused beyond any reasonable doubt.[15]

However, in the NDPS Act, it is the possession which is first proved due to which the presumption as to the mental state is made. The essential difference between the two offences [under POCSO and NDPS Act] is the fact that if there is no eye-witness of the offence under POCSO Act, the mental state cannot be presumed for a thing which in itself has not been proven. In the NDPS Act, at least the possession has to be proved beyond a reasonable doubt because of which such presumption can be validly made and would not be unconstitutional.

            ii. The possibility of mistaken conviction and its consequences

A mistaken conviction would unnecessarily censure, punish and stigmatise the defendant and his rights.[16] While there might be numerous possibilities of different incidents that can take place (positive presumptions); it is always difficult to prove the negative presumptions of non-happening of any event. Punishment for aggravated penetrative sexual assault is rigorous imprisonment for a minimum period of 10 years which can extend up to life imprisonment and fine.^[17]As the gravamen of the offence increases, the burden of proof increases proportionally.

The right to a fair trial is an inherent right of the accused and its denial causes an injustice to the accused as to the victim.[18] Presumption of innocence is one of the basic principles of the ‘Right to a fair trial’ which ensures that the accused is not treated with biasness or any prejudice.^[19]

The pair of presumptions by not following this basic tenet of fair trial and by making it incumbent upon the accused to rebut the presumptions with such high standards of proof leads to a violation of this right.

[The author is a third-year B.B.A. LL.B. student at National Law University, Odisha]

[1] Protection of Children from Sexual Offences Act 2012, § 29.

[2] Protection of Children from Sexual Offences Act 2012, § 30.

[3] V. D. Jinghan v State of Uttar Pradesh, AIR 1966 SC 1762.

[4] Meenakshi Mills Ltd v AV Vishwanatha Shastri (1955) 1 SCR 787.

[5] Supra at 1, Object and Reasons.

[6] Supra at 1, § 22.

[7] R v Oakes, [1986] 1 SCR 103.

[8] Rubinder Singh v Union of India, AIR 1983 SC 65.

[9] Supra.

[10] Ibid.

[11] Yogesh Maral v State of Maharashtra, 2016 (1) BomCR  (Cri) 474.

[12]State of Maharashtra v Dilip Gajbhare, Special Case No 35/2014 (Bombay High Court).

[13]Ibid, § 113B.

[14] Supra at 11.

[15] Naresh Kumar v State of Himachal Pradesh, 2017 (8) SCALE 324.

[16] David Hamer, The Presumption of Innocence and Reverse Burdens: A Balancing Act, 66 Cambridge LJ 142 (2007) p. 147.

[17]SeePOCSO Act 2012, § 5 and § 6.

[18] State of Punjab v Baldev Singh, (1999) 6 SCC 172.

[19]Zahira Habibbullah Sheikh v State of Gujarat, (2006) 3 SCC 374.