Reverse onus of proof: An incongruity in UAPA

-Himanshu Mishra

In all countries, the laws to prevent unlawful activities that may cause harm to the sovereignty and integrity of a nation are extremely consequential. In India, a law called Unlawful Activities Prevention Act, 1967 [hereinafter, “UAPA”]was enacted for this purpose. In recent times, our country has witnessed a plethora of UAPA cases and in most of the cases, this law was misused to stifle the dissenting voices. Upon deconstruction of this law, some provisions can be pointed out which are repugnant to the basic principles of constitutional and criminal law. One of the inconsistencies which UAPA has is the “reversal of the burden of proof”. The principle of burden of proof underlies the whole criminal justice edifice and hence, the article intends to critically analyse the principle of “burden of proof” with regard to UAPA and how its reversal infringes the fundamental rights of an accused.

Reverse onus of proof: A fundamental breach

Whenever a person is booked under UAPA, the application of Section 43D(5) of the UAPA, which says that the accused cannot be granted bail unless the public prosecutor has been given an opportunity of being heard on the application for such release, poses a threat to the liberty of that person. In addition to this, if there are reasonable grounds to believe that the case against the accused is prima facie true, the accused shall not be granted bail. Thereby, it establishes that the burden of proof lies upon the accused as he has been presumed guilty. Moreover, this reversal of the burden of proof minimises the work of prosecution to a substantial degree if the evidences shown are prima facie true and hence, all the burden lies on the accused. The prosecution outlines the whole case and also determines the charge and the sufficiency of evidence required to prove the actus reus. Thus, proving the absence of mens rea is a highly improbable task for the accused. Since the presumption of innocence is the fundamental element in criminal law, the legal or ultimate burden of proof must always be on the prosecution to prove the guilt of the accused. The prosecution must prove a concurrence between mens rea and actus reus beyond a reasonable doubt to discharge its burden. To get bail, the accused has to rebut the prosecution. Therefore, it can be deduced that the reverse onus makes UAPA arbitrary and unreasonable.

The locus classicus on the principle of presumption of innocence is the case of Woolmington v. D.P.P wherein Justice Sankey expounded that “[t]hroughout the web of the English criminal law one golden thread is always to be seen – that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception…”. In India, the same principle was followed by the Supreme Court in the famous case of K.M. Nanavati v. State of Maharashtra.

The contravention of this principle also leads to a compromise with the liberty of an accused and once someone is charged under UAPA, it becomes an uphill battle to exculpate from the offence as, owing to this lacuna, the accused is incarcerated solely based on the presumption of guilt.

Lately, 122 people charged under UAPA for promoting a banned organisation “Students’ Islamic movement of India” have been acquitted after 19 years. These 20 years of having been presumed guilty of a crime that was not even committed by them must have sullied their lives to a great extent.

Further, in K.A. Najeeb v. Union of India, the respondent was released after being imprisoned for five and a half years without even a trial. Not merely the liberty of an undertrial was affected, the right to speedy trial, which is a fundamental right under Article 21 of the Constitution, was also denied.

Curtailment of the fundamental rights caused by reverse onus

The “presumption of innocence” is a fundamental right under Article 21 of the Constitution of India as held by the apex court in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra. Nevertheless, the significance of this principle has not been materialised yet.

The indiscriminate use of this law with malicious intent is prone to occasion deleterious impact on the fundamental liberties of the citizens. Case in point, Safoora Zargar, a student of Jamia Millia Islamia was booked under UAPA for protesting against Citizenship Amendment Act, which was considered inflammatory by the Government. Initially, she was captivated and was not granted bail because of Section 43D(5) of the UAPA. Later on, the bail was granted purely on humanitarian grounds as she was 21 weeks pregnant and was also suffering from some ailments. The horrifying part is that despite having such medical conditions, she was incarcerated. There are various incidents where the high-handedness of the Government has infringed the liberties of dissenting voices by using this draconian law. As rightly quoted by Edward R. Murrow, “we must not confuse dissent with disloyalty”. In countenance with the statement, dissent should be conceived as a cue to rectify the errors committed by the government rather than perceiving it as a threat to the establishment; this is a key to lead a country in a free and democratic way.

In Maneka Gandhi v. Union of India, a new dimension was given to the “procedure established by law” in Article 21 of the Constitution. It held that the procedure must satisfy certain requisites in the sense of being fair and reasonable. The procedure cannot be arbitrary, unfair, or unreasonable. Meanwhile, the reverse onus of proof is antithetical to what was held in this case.

Other than the reverse onus, what exacerbates the law is the definition of Unlawful activity in Section 2(o), which is replete with arbitrariness. As per the section, any action by an individual or an association (either by committing an act or by words, either spoken or written), which disrupts or is intended to disrupt the sovereignty and integrity, or causes disaffection against India, is unlawful activity. Here, the predicament is that even questioning the government or its policies can be considered as an unlawful activity, so, it is entirely the discretion of the government, whether to use UAPA or not. The restrictions on the fundamental rights should be reasonable and fair whereas, in this law, the liberty given to an accused is very meagre.

Oakes test: A touchstone for setting reasonable restrictions on basic rights

To eschew unreasonable limitations on fundamental rights, boundaries are required to be established. In the case of R v. Oakes, the Supreme Court of Canada established the Oakes test which clearly delineates reasonable restrictions on rights and freedoms which are demonstrably justified in a free and democratic society. It was held that the right to be presumed innocent until proven guilty requires, at a minimum, that an individual be proven guilty beyond a reasonable doubt and the State must bear the burden of proof.

In keeping with the judgment, two conditions have to be satisfied to put restrictions on basic human rights:

1) The objective behind limiting the constitutional rights must be sufficiently important to override it.

2) It must be shown “that the means chosen are reasonable and demonstrably justified.” The second part of the test, described as a “proportionality test,” requires the invoking party to show:

  1. the measures adopted must be carefully designed to achieve the objective in question and they must not be arbitrary and irrational.
  2. there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom.

Along the lines of Oakes Test, in V.G. Row v. State of Madras, the Supreme Court held that the test of reasonability is to be examined with regard to each impugned statute, the extent of infringement of the fundamental right, and the object intended to be achieved.

The provision of reversal of the burden of proof does not satisfy the Oakes test. The Supreme Court had affirmed in Kartar Singh v. State of Punjab, that the application of Section 20(8) of Terrorist and Disruptive Activities (Prevention) Act, 1987, which was a very stringent provision for granting bail, could be justified on the presumption that the trial of the accused would take place without undue delay. Contrary to this, the accused generally spends many years in jail as an undertrial prisoner when charged under UAPA. Evidently, the objective of the Act is being achieved at the cost of injustice to the majority of the people charged under this Act.

Conclusion

While making laws to protect the sovereignty and integrity of India, the fundamental principles of law must be taken into consideration. The profundity of fundamental rights interpreted by courts of law and the boundaries demarcated between rights and restrictions should be given due significance. The provision of UAPA discussed is not in consistency with the judgments mentioned in this article. Moreover, the reversal of the burden of proof can have far-reaching consequences and a debilitating impact on fundamental rights. It ostensibly takes away the liberties of an accused and leaves them with no alternative to prove their innocence. The reverse onus may have been incorporated to augment the conviction rate or to make the conviction easier but it has certainly not fulfilled its purpose; it has made the lives of innocent rather miserable. Application of Oakes test will be apposite to rectify the problem of reverse onus in this Act. To avoid any further damage to the individual liberty of an accused, the provision of reversal of the burden of proof should be struck down.

[The article is authored by Himanshu Mishra, a 2nd year student of law at Indian Law Society’s law college.]

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