The presumption of innocence is one of the cornerstones of the Indian Criminal justice system, whereby the accused is innocent until proven guilty, and the burden of proof is placed upon the prosecution to prove the guilt of the accused. The theory of ‘innocent until proven guilty’, in the Indian regime is more than just a principle and has been incorporated into law. The roots of the principle can be traced to the English law. It is also an international human right under the UN’s Universal Declaration of Human Rights (“UDHR”). The “golden thread” which binds all of the criminal law, as per Woolmington v DPP, was enshrined in the principle of presumption of innocence. The reverse onus theory, however, is an antagonism of sorts to this very golden thread.
In the simplest terms, reverse onus clauses are opposite of what the fundamental doctrine of innocence is; the burden of proof is now on the accused, instead of the prosecution. The way this works is that as per Section 106 of the Indian Evidence Act, 1872, there may be a reversal in the evidentiary burden of proof whereby the accused has a certain degree of knowledge. Therefore, reverse onuses work in a way whereby the legal burden on the prosecution is reduced, thereby making the requirement only to prove the act itself, (the actus reus) or the minimum threshold. Thus, once actus reus is proved beyond doubt by the prosecution, the onus is shifted upon the defence. The accused then has to prove the absence of any intention or mental element (mens rea).
In other words, the principle ‘innocent until proven guilty’ is now replaced by ‘guilty until proven innocent’. If the accused (defence) is not able to pass the balance of probability standards, i.e. if the Court feels that the evidence is not in favour, they will be convicted, irrespective of the existence of reasonable doubt as to whether he had sufficient mens rea to commit said crime. Thus, one can infer from this that the accused gets convicted on the sole basis of presumption, which they are unable to counter convincingly.
As an instance, on a bare perusal of Section 35 of the NDPS Act, it can be seen that under the NDPS Act, it would be presumed that the accused has a ‘culpable mental state’ (mens rea) for committing that crime. Also, if an individual is unable to ‘satisfactorily account’ for the possession of contraband, he would be presumed guilty under Section 54 of the NDPS Act. On a collective reading of cases like Noor Aga, Inder Sain, Dharampal Singh, etc., it can be observed that the constitutionality of the said Sections was upheld. This article endeavours to scrutinize the notion of reverse onus through a constitutional prism. In this article, we argue that the notion of the reverse onus is flawed. The vires of the said principle will be contested on the buttress of Article 14, 20, and 21.
THE CONSTITUTIONAL SCRUTINY
It is an accepted principle in jurisdictions across the world that there cannot be more injustice than convicting an innocent person. As a riposte to such injustice and to secure a free and fair trial for the accused, it is highly advisable to adopt an approach antithetical to the reverse onus clause, i.e., to take resort of the conventional right of the accused of being presumed to be innocent until proven guilty. Furthermore, the prosecution is equipped with better resources to investigate, than the accused, meaning thereby, the prosecution is better equipped to establish the guilt than the accused trying to establish his innocence. Let us now view the vires of the reverse onus clauses through the prism of the Constitution.
Owing to Article 20(3), no person can be strong-armed to be a witness against himself. In M. P. Sharma v. Satish Chandra, the court had adjudged that right to remain silent falls under the ambit of the right against self-incrimination. However, owing to the reverse burden, the accused is already held guilty; thereby, he needs to provide evidence for his innocence. This strikes at the heart of the right to remain silent, meaning, thereby, violation of Article 20(3). Now let us shed some light on Articles 14 and 21.
ARTICLE 14
The rationale behind the imposition of the reverse onus principle is public interest and welfare. It is possible to infer that an attempt to create intelligible differentia is based on this public interest. However, there is a large quantum of ambiguity as to what offences can be bracketed into the domain of public interest, owing to which a nodus of over-inclusion or under-inclusion of offences is possible. Thus, using the principle of public interest for classification is inherently questionable. There is no room for such ambiguity in law.
Also, we need to understand that the means to reach an objective should be in proportion with the recognized objective i.e., there should be a rational nexus between the law’s intended objective and means to achieve that object. There needs to be an internal rational connection. In other words, there must be a connection between the basic facts (actus reus) and presumed facts (mens rea). This is not present in the reverse burden as there is no legitimate nexus between the duo.
Having pointed this out, one must understand that merely proving internal rational connection need not be adequate to prove the constitutionality of reverse onus. The basic facts (actus reus) may prove the presumed facts (mens rea) considerably, even then, the former cannot prove the latter beyond reasonable doubt. Hence, an accused can be convicted irrespective of the existence of reasonable doubt if he cannot fulfil the persuasive burden, which in itself vitiates the presumption of innocence. For instance, in Megh Singh v. State of Punjab, the accused was convicted only because he was sitting on a gunny bag containing poppy husk. Here the concept of conscious possession was neglected, i.e., mens rea was presumed and led to injustice.
ARTICLE 21
Owing to judicial precedents, the procedure established by law, as envisioned in Article 21, has to be just, fair and reasonable. Also, Article 21 espouses a right to free and fair trial. However, reverse onus clauses, which is necessarily couched in presumptions, vitiate this aspect. Criminal jurisprudence has always resorted to the principle that the graver the nature of the crime, it mandates higher the degree of certainty before convicting the accused. This is not the case with reverse burdens as the presumption of innocence is displaced by the presumption of guilt, meaning which the accused is treated as a criminal before he actually getting convicted, making him a presumptive criminal.
Now, even if we assume that reverse onus will restrict an accused from escaping the strict standard of proof beyond a reasonable doubt, it leads to higher conviction rates. But can the higher conviction numbers be equated with a crime-free society? Instead, a probability of incorrect convictions is higher due to reverse burden and this obviously stands against the public interest. Also, one cannot be unmindful of the fact that the Parliament or the courts can attain public interest by resorting to lesser extreme means.
CONCLUDING REMARKS
In light of the arguments made above, we strongly submit that the entire notion of the reverse onus falls foul of the law and should be declared unconstitutional. Several foreign jurisdictions like Canada and South Africa have nullified the reverse burden clauses, so much to include the presumption of innocence in the category of legally recognized rights. Finally, we conclude that, of course, there is a temptation that the reverse onus clause will lead to quicker convictions.
Nevertheless, this should not outweigh the idealistic and moral desire of legally appropriate verdicts. Everyone wants to see the wrongdoer being brought to book. But the legally established procedure for achieving this end should be duly adhered to.
In the simplest terms, reverse onus clauses are opposite of what the fundamental doctrine of innocence is; the burden of proof is now on the accused, instead of the prosecution. The way this works is that as per Section 106 of the Indian Evidence Act, 1872, there may be a reversal in the evidentiary burden of proof whereby the accused has a certain degree of knowledge. Therefore, reverse onuses work in a way whereby the legal burden on the prosecution is reduced.
