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THE EXCEPTION TO THE GOLDEN RULE OF INNOCENT UNTIL PROVEN GUILTY: DIYA DUTTA

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The Exception to the Golden Rule of ‘Innocent Until Proven Guilty’

Author: Diya Dutta[*]

Maharashtra National Law University Mumbai.

ISSN: 2581-8465

ABSTRACT:

The rule of law that a person shall be presumed ‘innocent until proven guilty’ is a golden principle established under criminal law for procedural fairness. This rule doesn’t only protect against wrongful convictions but also ensures that an accused is not oppressed by the immense power of the State. The reverse onus clause, however, is an exception to this principle, which regards to ‘presumption of guilt’. Under such a clause, the burden lies upon the accused to prove himself innocent. The main argument that is incorporated in the paper is whether such a philosophical shift would unduly affect convictions; or whether a middle ground needs to be arrived at in between the two conflicting principles as per the traditional standards of proof, rights of an accused, and the public interest of society. In order to do so, the author shall be elucidating how the clause goes against the criminal jurisprudence and the constitution, especially on the grounds of Art. 14 and 21.

  1. Introduction

Even though every crime involves either an individual or a group of individuals, it is, however, ultimately considered to be an offence against the society at large. Thus, it becomes the duty of the State to provide justice to those affected and also to sustain the faith of the society in law and order. In such instances, the rule of law becomes an immensely important aspect of a just and disciplined social order. Further, having a trial procedure that is fair in the eyes of law is one of the fundamental principles of criminal justice. In light of this, the criminal jurisprudence has laid down certain features and principles based on which the justice system primarily functions.

One of the golden rules of procedural fairness is the ‘Presumption of Innocence’. This rule states that the accused is presumed to be innocent unless he is found guilty of the charged offence. It is considered to be the foundational principle over which most of the criminal jurisprudence is based on because it is believed that allowing the guilty to go free is better than convicting the innocent.[2] This principle also protects the liberty and human dignity, preventing the accused from being subjected to the grave socio-legal consequences of a conviction unless it is established in its entirety that he/she is guilty.[3]

The presumption of innocence gets inevitably linked with the entire notion of burden of proof. The concept of burden of proof states which party should bear the onus to prove a certain fact during the course of any proceeding or trial.[4]However, reverse onus clauses, constitute a singular exception to this fundamental rule, superseding the ‘golden thread’[5] of criminal law with a ‘Presumption of Guilt’. The reversal of burden hits the very root of the principle and replaces ‘innocent until proven guilty’ with ‘guilty until proven innocent’, making the entire burden of proof that was over the prosecution, fall on the accuses shoulders.[6]

It is crucial to understand the difference between legal burden and evidential burden, as often it is seen to be used interchangeably. While legal burden refers to the burden that a party has to prove their case to the standard stipulated by law; evidential burden is not a burden per se, but discharges by only adducing enough evidence to establish a prima facie case as to the facts in issue, and thereby defeat a submission of no case to answer.[7]The the burden upon the accused in such cases is of legal burden, which is ultimate in nature, as any kind of failure to discharge it will inevitably result in the conviction of the accused.[8]In most reverse onus clauses, the standard of proof that has to be met by the accused is the incongruence of the ‘preponderance of probabilities’ standard and any failure to meet such standard results in the conviction of the accused, even if a reasonable doubt as to his/her guilt exists.[9] This is completely contradictory to the ordinary cases wherein the presence of any reasonable doubt as to the guilt of the accused, rather, results in the accused’s acquittal.[10]Some statutory provisions employing reverse onus clauses in India are— s. 114A, 114B of the Indian Evidence Act, 1872; s.35, 54 and 66 of the Narcotic Drugs and Psychotropic Substances Act, 1985; s. 20 of the Prevention of Corruption Act, 1988, et al.[11]

This paper shall be divided into four chapters. While the first chapter shall delve into the judicial interpretation of the clause by analyzing various case-laws. The second chapter shall provide all the justifications that have been given so far with regard to the reverse onus clause, it shall also attempt to rebut all the reasonings provided. The third chapter shall primarily argue how the reverse onus clause goes against the criminal jurisprudence by infringing the presumption of innocence and is also unconstitutional in nature on the grounds of Article 14 and 21. Lastly, the final chapter will be summarising the entire paper along with highlighting the author’s standpoint on the entire debate.

  1. Judicial Interpretation

The courts in India have been at the forefront in judicial interpretation of the reverse onus clauses. Over a period of time, various judgments have given operative functionality to these clauses and explained their functioning. Some of the landmark judgments and interpretations have been covered –

Section 57A of the Kerala Excise Act was questioned on the ground that the provision is contrary to the presumption of innocence and thus, in violation of Article 21.  Section 57A describes the offence of mixing of any noxious substance with liquor or any intoxicating drug.[12] Under Section 57A (5), the burden of proving that the liquor was not adulterated is on the person charged with the offence. Further, under Section 57A 1 (ii) when adulterated liquor results in the death of any person, the act is punishable with death or imprisonment not less than three years but which may extend to life.  In the Supreme Court, it was argued that instead of requiring the prosecution to prove the offence, the provision arbitrarily places the burden entirely on the accused to disprove the core ingredients. The Court concluded that Section 57A was comparable to Sections 105 and 106 of the Indian Evidence Act which placed the burden on the accused to prove exceptions or facts, especially within his knowledge.[13] The court further noted that the PoCA 1947 and TADA 1987 contained similar provisions that had withstood the scrutiny of the Supreme Court. The Court concluded that “These special provisions are to some extent harsh and are a departure from normal criminal jurisprudence. But it is not uncommon in criminal statutes. It is a special mode to tackle new situations created by a human proclivity to amass wealth at the altar of human lives. So, it is not right to read down the law.”[14]

Sections 35 and Section 54 of the NDPS Act were the subject matter of challenge. Section 35 (1) of the NDPS Act directs the Court to presume the culpable mental state of an accused and requires the accused to disprove the same. “Presumption from the possession of illicit articles”[15] states that the Court may presume in trials that the accused has committed an offence if he is unable to account for possession of the illicit articles. The Supreme Court, while considering the validity of these provisions, cited a number of English decisions. Prominent amongst these was R v. Lambert,[16]where the House of Lords had read down a similar provision, Section 28 (3) of the Misuse of Drugs Act, 1971. Section 28 (3) of the Act requires an accused to prove that he neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug. Holding that the section placed a disproportionate burden on the accused, the provision was read down to imply only an evidential burden. This would mean that the accused would be required only to show enough evidence to make his knowledge of possession an issue for consideration. He would not be required to prove the same.

Verdict: This decision is reflective of a rule of thumb often followed when burdens are to be interpreted. In the case of offences where severe punishment is prescribed, burdens placed on the defendant ordinarily should be evidential rather than persuasive.[17] In Johnstone, which is considered an exception to this principle, the House of Lords held that the burden on the Defendant under Section 92 (5) of the Trade Marks Act 1994 was a legal burden even though the offence is punishable with up to ten years’ imprisonment. In doing so, the House of Lords noted that traders are aware that they should be on guard against counterfeit goods and that those who supply traders with counterfeit goods are unlikely to co-operate with the investigation.[18] It was further noted that traders can discharge a persuasive burden with comparative ease.

Discharging the Prosecution’s Initial Burden:

“One of the essential ingredients of the offence of dowry death under S.304B, IPC is that the accused must have subjected a woman to cruelty in connection with demand of dowry soon before her death and this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death under S.113B of the Indian Evidence Act.”

“Applying the facts of the present case to the cited one, it is apparent that the initial burden to prove that the appellant had the knowledge that the vehicle he owned was being used for transporting narcotics still lay on the prosecution, as would be clear from the word “knowingly”, and it was only after the evidence proved beyond reasonable doubt that he had the knowledge would the presumption under Section 35 arise. Section 35 also presupposes that the culpable mental state of an accused has to be proved as a fact beyond reasonable doubt and not merely when its existence is established by a preponderance of probabilities.”

Discharging an Accused’s Burden:

Examined the degree of proof required for an accused to discharge his burden in a prosecution U/S 138 of NI Act and it is held as follows; “S.139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. It is a settled position that when an accused has to rebut the presumption under S.139, the standard of proof for doing so is that of the preponderance of probabilities.

“The burden of proof cast on the accused under S.35 can be discharged through different modes.

  1. The Accused can rely on the materials available in the prosecution evidence.
  2. That the accused can elicit answers from prosecution witness through cross-examination to dispel any such doubt.
  3. She/he may also adduce other evidence when he is called upon to enter on his defense.

In other words, if circumstances appearing in prosecution case or in the prosecution evidence are such as to give reasonable assurance to the court that appellant could not have had the knowledge or the required intention, the burden cast on him under S.35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence.”

  1. Justifications to the Reverse Onus Clause

As per the 47thReport of the Law Commission, 1972 it was recommended that since offences with regard to narcotics, corruption and food adulteration hamper the ‘health and material welfare of the community as a whole’, special provisions for them becomes pivotal in order to have their enforcement beneficial.[23] Moreover, reverse onus clause(s) direct an accused to prove the absence of mens rea in the form of not only their intention, motive, knowledge, or belief, but also in relation to the actus reus of a crime. The idea of a reverse onus clause is to achieve the goal of deterrence, which could contribute towards reducing the occurrence of these offences.[24] Not only this but secondly, there lies a lot of difficulties for the prosecution to cite any evidence which is at the exclusive knowledge of the accused only.[25] Reverse burdens appear to be more feasible, facilitate a shorter, easier and less expensive trial. Thus, they conserve valuable resources that would have ordinarily been utilized in investigating facts exclusively within the knowledge of the accused. This is how the reverse onus clause heavily helps the judicial economy and furthers administrative convenience.[26]

However, the immediate counter that could be presented forth is the fact that the prosecution has the full power to lay down the structure of the case. It is to be considered that the prosecutors along with determining the charge against the accused have the duty to assert the sufficiency of evidence required to prove the actus reus. Further, even with regard to the process of citing evidence, it shall most likely go in favour of the prosecution. Therefore, requiring the accused to prove the absence of the requisite mens rea in response to the prosecution’s case is a formidable task.[27] Also, the accused having exclusive knowledge cannot be correlated to his ability to prove any relevant facts. There could be instances wherein the accused is genuinely innocent, however, he might fail to prove it on the standard of the balance of probabilities.[28] Lastly, the rights of the accused should not be compromised solely on the fact that there may be ‘hindrances’ for the prosecution in order to obtain evidence or because putting the onus on the accused’s shoulders will be ‘convenient’, instead, it should be seen in the light that, the prosecution will have access to objective evidence from which mens rea can be inferred.[29]

  1. Constitutional Validity

The reverse onus clause can be challenged on two grounds. They are:

  1. Violative of Article 14

It is a settled position of law that the requirements of the validity of a provision of law by reference to Article 14 of the Constitution are namely, (i)that the classification is founded on an intelligible differentia; and (ii) that that differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action.[30]The reverse onus clause stands unconstitutional on the most fundamental ground that the object of the clause doesn’t create any intelligible differentia. There is no concrete dichotomy as to why certain offence Further, there are marked under the ambit of the reverse onus clause; there exists almost no clarity as to the criterion over which inclusion or exclusion of offences is made.[31]

Further, a reasonable nexus refers to the existence of any rational connection between the object of the law and the means that were used to achieve that particular end. Thus, there needs to be a reasonable link, which refers to a nexus between the proof of the basic fact (i.e., the actus reus) and the presumed fact (i.e., the mens rea);[32]which is not present in reverse burden cases as there can be no definite connection established between the two. For instance, in the Narcotic Drug and Psychotropic Substances Act, 1985 (‘NDPS Act’), while section 35, presumes that the “culpable mental state” of the accused, section 54, on the other hand, presumes that the accused has committed an offence if he/she fails to account for the possession of any narcotic drug or psychotropic substance satisfactorily. Once the prosecution has proved the physical possession of any such substance, the possession shall be presumed to be that of a conscious possession and the accused will then bears the burden of proving the absence of a “culpable mental state.”[33]What needs to be understood is the distinction between the two types of possession. While physical possession refers to the corpus or the physical, the conscious possession concerns the animus or intent which has reference to exercise of the said control.[34]

As seen in the matter of Megh Singh v. State of Punjab,[35] the accused was convicted because he was unable to rebut the presumption of conscious possession, which was based solely on the accused being found sitting on a gunny bag containing poppy husk. This further illustrates how the reverse onus clause deals with cases in which prima facie itself have a weak nexus. Due to the absence of any intelligible differentia and lack of nexus found between the actus reus and mens reus in the reverse burden cases, the clause stands violative of Article 14 of the Constitution of India.

Article 21 states that the ‘procedure established by law’ has to be just and reasonable,[36]and it also embraces the right to a fair trial.[37]In light of such, reverse onus clauses comes out to be antithetical to this. It is a settled principle of criminal jurisprudence that crimes of a more serious nature shall entail a higher degree of certainty before convicting the accused.[38] However, the reverse burden operates on the very essence of criminal culpability, swapping the presumption of innocence with the one of guilt and subsequently making the accused a presumptive criminal.

This particular fundamental right also bestows upon the right to life, but as the reverse onus clause leads to providing insufficient protection towards the accused. The standard of the balance of probabilities does not justify the concept of reverse onus clause because the burden on the accused is ultimate, implying that his failure to discharge this burden would result in his conviction.[39] While such a standard is lower than proof beyond reasonable doubt, it is still extremely difficult to meet for the accused of the objections raised before and thus, an accused could be convicted despite the presence of a reasonable doubt if he is unable to satisfy the persuasive burden, which as mentioned earlier also, gravely contravenes with the presumption of innocence.[40]Also, principles relating to burden and standard of proof in criminal trials are extremely crucial as they promote individual freedom and helps one fight against any sort of oppression. Reversing the burden, however, renders the accused a presumptive criminal, disregarding his individual liberty and dignity, thereby blatantly violating Art. 21.

In P.N. Krishna Lal v. Govt. of Kerala,[41]Section 57A of the Kerala Excise Act was questioned on the ground that the provision is contrary to the presumption of innocence and thus, in violation of Article 21.  While section 57A describes the offence of mixing of any noxious substance with liquor or any intoxicating drug,[42] section 57A (5) stated the burden of proving that the liquor is not adulterated lies upon the person charged with such an offence. In the Supreme Court, it was argued that instead of requiring the prosecution to prove the offence, the provision arbitrarily places the burden entirely on the accused to disprove the core ingredients. The Court concluded that Section 57A was comparable to Sections 105 and 106 of the Indian Evidence Act which placed the burden on the accused to prove exceptions or facts, especially within his knowledge.[43] The Court concluded by saying that “These special provisions are to some extent harsh and are a departure from normal criminal jurisprudence. But it is not uncommon in criminal statutes. It is a special mode to tackle new situations created by a human proclivity to amass wealth at the altar of human lives. So, it is not right to read down the law.”[44]

The reverse onus clause massively goes against constitutional values such as equality before the law and equal protection of the law. Moreover, in a democratic society like that of India, it is based upon the fundamental notions of individual autonomy and dignity.[45] Even though it is not explicitly mentioned in the constitution, still it holds enough water to state that the rule of presumption of innocence is a strong base to the conception of justice in preserving “public confidence in the enduring integrity and security of the legal system.”[46] Furthermore, at times when an accused is entering a criminal trial where the odds are already against him, the presumption of innocence is absolutely vital to ensure that he is given a fair trial and is not prejudiced against from the outset. The significance of this presumption increases all the more when considered in light of the extremely rigorous sentences inflicted under the statutes in India, which currently employ reverse onus clauses. It is these principles of fairness and justice that reverse burdens have sacrificed in the name of pursuing pragmatic policy concerns.

The presumption of innocence is “a normative moral and legal standard encapsulating a strong commitment to avoiding wrongful convictions, rather than a recipe for factual inference and adjudication.”[47] Thus, it must be viewed as a norm of fairness rather than an instrument of accuracy. In furtherance to this, this paper also attempted to argue how, in Indian statutes, certain reverse onus clauses which place unfair burdens on the accused calls for a revamping. In light of the above analysis, it may be concluded that contrary to the prevailing judicial position, reverse onus clauses are unconstitutional as they violate the presumption of innocence and contravene fundamental principles prevailing in a democratic society enshrined in Art. 14 and Art. 21 of the Constitution. Further, it should be emphasized on how a criminal justice system that believes in using reverse burdens in order to promote public welfare, but on the other hand, fails to recognize that such a measure is, in fact, self-defeating and does not reflect a society that believes in the principles of equity and justice. this paper maintains that a compromise ought to be negotiated between the competing principles of the presumption of innocence and the policy rationale of public interest.[48]

Lastly, the paper concludes that, only when the safeguard and interpretative mechanisms are the strongest and steadfast, can we hope to achieve the ends put through for the introduction of the Reverse Onus Clauses. Till then, a judicial and legislative overhaul of the same is imperative.

*Third-year B.A. LL.B. (Hons.) student at Maharashtra National Law University Mumbai

[2] Andrew Ashworth, Principles of Criminal Law, 72 (2009).

[3] Victor Tadros& Stephen Tierney, The Presumption of Innocence and The Human Rights Act, 67 (3) Mod. L. Rev. 402 (2004)

[4]§ 101, The Indian Evidence Act, 1872

[5]Woomingtonv. D.P.P., [1935] A.C. 462

[6] Juhi Gupta, Interpretation of Reverse Onus Clauses, 5 NUJS Law Review (2012).

[7] Bryan A. Garner, Black’s Law Dictionary 190(Minnesota: West Group, 1999).

[8]State of Tamil Nadu v. A. VaidyanathaIyer, AIR 1958 SC 61

[9] Rahul Singh, A Reverse Onus Clause: A comparative Law Perspective, 13 NLSIU Law Review

[10] Byron M. Sheldrick, Shifting Burdens and Required Inferences: The Constitutionality of Reverse Onus Clauses, 44(2) U. Toronto Fac. L. Rev. 179, 180 (1986)

[11]Abhinav Sekhri, Unconstitutionality of the Reverse Onus, IndianConLawPhil, available at https://indconlawphil.wordpress.com/category/equality/article-14/arbitrariness/reverse-onus-clauses/ (last visited on 24th August 2019)

[12] Id Para 6.

[13] In para 46, the Court observed: “It is thus settled law even under general criminal jurisprudence that Sections 105 and 106 of the Evidence Act place a part of the burden of proof on the accused to prove facts which are within his knowledge. When the prosecution establishes the ingredients of the offence charged, the burden shifts on to the accused to prove certain facts within his knowledge or exceptions to which he is entitled to.

[14] Id Para 52.

[15] Narcotic Drugs and Psychotropic Substances Act, 1985, S. 54

[16]R v. Lambert [2001] UKHL 37. 

[17]Noor Aga, Para 64

[18]R v Johnston 25[2003] UKHL 28

[19]Rajeev Kumar v State of Haryana [AIR 2014 SC 227]

[20]Bhola Singh v State of Punjab (2011) 11 SCC 653. 

[21]Rangappa v. Sri Mohan [AIR 2010 SC 1898]

[22]Abdul Rashid vs. State of Gujarat [AIR 2000 SC 821]

[23] Law Commission of India, 14th Report- The trial and Punishment of Social and Economic Offences 2, 4 (1972)

[24] A. Sylvine, What is a Reverse Onus Clause in Criminal Law?iPleasders, June 24, 2016. available at https://blog.ipleaders.in/reverse-onus-clause-criminal-law/#_ftnref4 (last visited 21st August 2019)

[25] Paul Roberts, Talking the Burden of Proof Seriously, Criminal Law Review 783, 785 (1995).

[26] Juhi Gupta, supra note 5

[27]M.A. Rashid, Rewriting the concept of burden of proof, LiveLaw, available at https://indconlawphil.wordpress.com/category/equality/article-14/arbitrariness/reverse-onus-clauses/ (last visited 23rd August 2019)

[28]Tadros& Tierney, supra note 2

[29] Glanville Williams, The Logic of “Exceptions”, 47(2) Cambridge L. J. 261, 268 (1998)

[30]Dharam Duttv. Union of India, (2004) 1 SCC 712; Dr. Subramanian Swamy v. Director, CBI AIR 2014 8 SC 682.

[31]Juhi Gupta, supra note 5

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

[33] Juhi Gupta, supra note 5

[34]Mohan Lal v. State of Rajasthan, 2015 SCC OnLine SC 357

[35]Megh Singh v. State of Punjab, (2003) 8 SCC 666

[36]Maneka Gandhi v. Union of India (1978) 1 SCC 248

[37]Zahira Habibullah Sheikh v. State of Gujarat (2006) 3 SCC 374

[38] Roberts, supra note 10

[39] Glanville Williams, supra note 13

[40] Solomon E. Salako, Strict Criminal Liability: A Violation of the Convention?70 Journal of Criminal Law 531,533 (2006)

[41]P.N. Krishna Lal — Govt. of Kerala 1995 Supp (2) SCC 187

[42]Id. Para 6.

[43] In para 46, the Court observed: “It is thus settled law even under general criminal jurisprudence that Sections 105 and 106 of the Evidence Act place a part of the burden of proof on the accused to prove facts which are within his knowledge. When the prosecution establishes the ingredients of the offence charged, the burden shifts on to the accused to prove certain facts within his knowledge or exceptions to which he is entitled to.

[44]Id. Para 52.

[45] Juhi Gupta, supra note 5

[46]Supra note 17

[47] Paul Roberts and Zuckerman, Criminal Evidence, 372(Oxford, 2004).

[48] T.R.S. Allan, Dworkin and Dicey: The Rule of Law as Integrity, 8(2) Oxford J. Legal Stud. 266 (1998)

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