~By Pragun Goyal
The presumption of innocence of the accused is an esteemed ‘golden thread’ in the criminal jurisprudence which is fundamentally tied to a reputation-related aspect of the accused in the criminal trial. The raisons d’être of this aspect is that no one can impute guilt to the accused before he is convicted beyond a reasonable doubt during the criminal trial. Beyond reasonable doubt means that the evidence produced by the prosecution has to be consistent only with the guilt of the accused.
In Subhash Kashinath Mahajan v. State of Maharashtra, the Supreme Court of India (“SC”) held that presumption of innocence has become a human right and the accused cannot be deprived of the right to life by presuming the guilt of the offence beforehand. This presumption has also assumed the character of a fundamental right by being part of the basic law of the land. It is based on the ‘doctrine of public morality’ which mandates the state to treat all its citizens as innocent. A right becomes fundamental if it is deep-rooted in the history and tradition of a country. The SC has considered the presumption on various occasions as deeply rooted in Indian law.
However, the reverse onus clause constitutes an exception to this presumption. The culpability of the offence is presumed and the burden of negating the mens rea shifts on the accused. Usually, these clauses are confined to socio-economic offences but have been expanded to penal offences also on the pretext of public interest and speedy justice which will be proved as a slapstick premise below.
I. Constitutional Implications
Reverse onus clauses do not stand the anvil of constitutional validity as they are unreasonable and irrational. Late Mr. Ram Jethmalani argued in the context of Section 24 of PMLA Act 2004 that the burden of proving that the proceeds of crime are untainted property of the accused is unreasonable, irrational and constitutionally invalid because this presumption doesn’t arise from some fact being proved. In Babu v. State of Kerala, the court held that the statutory provision for a presumption of guilt of the accused must meet the tests of reasonableness and liberty enshrined in Articles 14 and 21 of the Constitution of India. The burden never shifts on the accused and the reverse onus is nothing but a discredited practice of coercing a confession by using a thumbscrew. Criminal jurisprudence in the adversarial system has a constitutional dimension in which the reverse burden clauses fail to satiate as delineated hereunder.
ii. Article 14 dehumanized
The reverse onus must stand the test of ‘reasonableness’ under Article 14. Let’s take an example from POCSO Act 2012. In Section 30 of the Act, the culpable mental state of the accused is presumed for the prosecution of any offence in the Act unless rebutted beyond a reasonable doubt. This presumption raises a question. Under these grave offences of POCSO, is the conviction reasonable and justified if the accused fails to disprove the presumption beyond a reasonable doubt? The court in Noor Aga case has held that the burden on the accused cannot be as high as the prosecution (beyond reasonable doubt). This automatic shift in burden violates the Court’s reasoning that a shift in legal burden cannot be automatic and occurs only once the prosecution has met the threshold of establishing the actus reus and foundational facts according to the procedure stipulated. This arbitrary assumption reduces the cardinal principle of criminal jurisprudence to a mere shadow. There can be a number of legitimate reasons of why a defendant is unwilling to testify. The reverse onus clause fails to consider the realities of the situation. The failure to testify is not always indicative of guilt. This position has been strengthened by G. Williams who said that no policy consideration can justify this type of conviction.
Further, the reverse clause must be for an objective and rationally connected to it. Usually ‘public interest’ and ‘seriousness’ argument is used to justify the reverse burden. But the differentia created on this basis is unreasonable and irrational. Alan Norrie observes that social injury, public interest and welfare arguments are too indeterminate as all the legislations are designed to protect such welfare. ‘Public interest’ and ‘gravity of offence’ is often misused to disguise problems faced by the prosecution.
The importance of rational connection was laid in Tot v. United States which requires some inferential link between the clause and the objective sought to be achieved. This inferential link is often missing in the reverse onus clauses. Reverse onus leads to more convictions which in general leads to a higher number of erroneous convictions. The severity of the offence is not the sole criterion that determines the degree of injustice inflicted by a wrongful conviction. Even for the same type of offence, some erroneous convictions are worse than others. The objective of public interests stands defeated because trapping innocent individuals in the rigour of criminal law is never in the interest of a democratic society and does not contribute into in reducing the incidence of the very offences for which reverse burdens were introduced.
This same reasoning found its place in County Court of Ulster County, New York v. Allen in which the court held that the state cannot rest its case entirely on the presumption unless the fact proved is sufficient to convict the accused beyond a reasonable doubt. A rational connection must be there to constitutionally protect the rights of the accused. Martin JA also remarked in Oakes case that to convict an accused merely on an arbitrary assumption that an essential ingredient of an offence exists is both illusory and fanciful. In India, the rational connection or the legitimate objective is often missing which is visible in Sher Singh v. State of Haryana. The court justified the reversal of the burden of proof in a dowry death case on dubious parliamentary reasoning of a mere exponential increase in dowry death cases in the country. The court agreed with the legislative reasoning that a prudent, expedient and imperative response to an increase in the offence rate must be the reversal of the burden of proof.
A perusal of all the above arguments makes it senseless for the constitutional design of protecting accused rights if the legislature can by ‘sleight of hand’ obviate these protections through the surreptitious use of presumptions without any objective reasoning beneath them. It can be concluded that the reverse onus clause is a measure responsible for limiting constitutional rights without an objective of sufficient importance. It is not rationally and proportionately connected to the objective and even if connected in some statutes, it heavily impairs the rights and freedom of the accused.
iii. Article 21 crippled
In the Gurbaksh Sibbia v. State of Punjab, an implicit connection was earmarked between the presumption of innocence and Article 21. In Manu Sharma v. State (NCT of Delhi) the court expressed that Article 21 encompasses the rights of the accused besides procedural fairness. In Sahara v. SEBI, the court held the presumption as part of rule of law and Article 21.
Presumption of innocence defends the accused’s right to autonomy against erroneous convictions. The reverse clause is often deployed in serious cases and the more serious the accusation, the more the probability of erroneous conviction. In India, the reverse clause has been deployed in many grave offences. E.g., many provisions in NDPS Act, 1985 have a minimum of 10 years of rigorous punishment and a maximum of 20 years, POCA, 1988 also has a maximum punishment of 7 years. This raises questions as an accused faces grave social stigma which includes loss of physical liberty and ostracism. Further gauging Section 43E of UAPA is pivotal as it allows the court to presume the commission of an offence if the fingerprints of the accused are detected at the crime scene. The moot issue is that this provision can lead to a myriad of subversive interpretations. It can also mean that the accused was merely present at the crime spot and didn’t indulge in the commission. It can’t give rise to this precise and meticulous conclusion that the accused participated in the crime. This can seriously make an indentation in the rights of the accused besides beget serious consequences.
While dealing with Section 29 of the POCSO Act, 2012, the court mentioned misuse of the reverse burden of proof cautioning against considering the prosecution version as a gospel of truth and thereby leaving the accused in a lurch. In this context, Justice Khanna said that nothing can undo the mischief of unmerited conviction thereby giving an epoch-making signal.
The reversal of proof violates the Maneka Gandhi thesis that ‘procedure establish by law’ must not deprive a person of his life or personal liberty and has to be ‘reasonable, right, just and fair’. Depriving any accused of their right to liberty as a result of such a method (presuming the guilt of the offence) would be unjust and would not constitute due process, as guaranteed by Article 21 of the Indian Constitution. When the reversal of burden fails to satisfy the test of Articles 14 and 21, the accused is deprived of the rights of liberty and following such a procedure would be unfair and would not amount to due process which is concomitant of the guarantee under Article 21 of the constitution. The thesis can be understood aptly in Sohan v. State of Haryana in which the SC lamented that had the Session Judge reminded himself of the presumption of innocence and the beyond reasonable doubt standard, the whole direction of the approach would have been different and the accused would not have suffered from the perverse appreciation of the evidence.
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