EXAMINATION OF REVERSE ONUS CLAUSES UNDER POCSO ACT
Updated: Aug 28, 2020
By- Ayushi H. Desai and Devanshi B. Desai, 4th Year (B.B.A LL.B) Students at Unitedworld School of Law, Karnavati University, Ahmedabad
India is classified as a common law country that runs with an adversarial system of trials. The foundation of the criminal justice system lies in a sacrosanct principle that states that every person accused of a crime are assumed innocent until proven guilty. It means the prosecutor must prove all the essential factors about the crime in question. However, the Presumption of Innocence is a basic human right but not a fundamental right under Part III of the Constitution.
Reverse onus clauses, however, constitute a singular exception to this fundamental rule, supplanting the 'golden thread' of criminal law with a presumption of guilt. This article would examine the sweeping shift from the presumption of innocence to a presumption of guilt. The POCSO Act is a special act enacted by the legislature, functions in a comportment that is best apt for a child's welfare and interest.
CONSTITUTIONAL VALIDITY OF PRESUMPTION CLAUSES
The Protection of Children from Sexual Offences Act enacted in 2012 contains two special provisions, i.e., Section 29 and 30. Section 29 explicitly states that whenever a person is prosecuted for committing, abetting to omit or attempting to commit an offense under Section 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. Section 30 deals with the 'presumption of culpability of 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 based on the preponderance of probabilities.
The cardinal principle of 'presumption of innocence' seeks to protect the rights of the accused, whereas 'reverse onus clauses' seeks to protect the victim and aid the prosecutor in a case. Hence, in such a situation, it isn't easy to ascertain as to which right should be given weight-age over the other.
The POCSO Act was conceived keeping in mind Article 15, where clause (3) of the Article empowers the state to make special provisions for women and children. Further, Article 39 that forms a part of Directive Principles of State Policy mentions that states shall direct policies for children to ensure that they are given opportunities and facilities to develop in a healthy approach and environment of freedom and dignity. The Article also adverts that policies should be formulated for the protection of youth against exploitation, moral, and material desertion.
Reverse Onus Clauses are not to be seen as the dilution of 'innocent until proven guilty'; they are only an exception to this general principle of Criminal System. Such Reverse Onus Clauses are statutory exceptions that can also be found in the NDPS Act, Negotiable Instruments Act, Indian Evidence Act, Prevention of Corruption Act, etc.
The Constitutional validity of Section 29 and 30 of the POCSO Act was time and again debated. Reports suggest that half of the country's children face some form of sexual abuse, with 21% having faced several sexual abuses. Boys account for around 53% and girls for 47% of all children reporting abuse. The Ministry of Women & Child Development (2007) survey revealed that the prevalence of all forms of child abuse is extremely high, precising physical abuse (66%), sexual abuse (50%), and emotional abuse (50%).
In the case of Namit Sharma v. Union of India court stated that 'to test the constitutionality of a statue or its provision, one of the most relevant factors would be the object and reasons as well as the legislative history of the statue which would turn helpful in assessing the reasons as to the enactment of a statue to find an ultimate impact vis-à-vis the constitutional provisions.' Therefore, taking into account these alarming and disturbing facts into record, it is apparent that the lawmakers deliberately enacted Section 29, i.e., the presumption of guilt.
Notably, legality and validity of reverse onus clauses can be inspected in Noor Aga v. the State of Punjab, where Court relied on a decision of its own to hold that presumption of innocence is not an absolute right. The Supreme Court was dealing with identical provisions of Section 35 and Section 54 of the NDPS Act, 1985 has held the same to be valid. Section 30 of 2012 is the same provision in words as that of Section 35 of the Act of 1985, and Section 54 of the Act of 1985 is also exactly alike to Section 29 of the POCSO Act.
Section 29 and 30 of the POCSO Act uses the word 'shall presume,' which is a rebuttable presumption. This means the prosecution gets an opportunity to prove its case, and it is not that accused only based on presumption is considered guilty. The accused to prove his innocence is given a chance to rebut the presumption under said sections. Hence, the POCSO Act gives a chance to the accused to prove his innocence.
In Dhanwantrai Balwantrai Desai v. the State of Maharashtra it was observed by the Court that, 'presumptions, are rules of evidence and do not conflict with the presumption of innocence of the accused, for, the burden, on the prosecution, to prove its case, beyond all reasonable doubt, still remains intact.' The Court opined that 'When the facts give rise to a presumption of law, the prosecution must be considered to have discharged to prove the case beyond a reasonable doubt, which also stands the obligation of the prosecution. And thus, to prove the contrary, the onus is shifted to the accused. It is important to note that, although a presumption of fact by explaining be rebutted by the accused, is it reasonable and likely, whereas, most importantly, the explanation must be proved to be true in case of presumption of law, in which the explanation cannot be considered alone.'
Section 29 of the POCSO Act mandates the Court to draw the presumption unless the contrary is proved. As expressed by an eminent jurist, one has to keep in mind, that presumption is bats in law, they fly in twilight but vanish in the light of facts.
To get the workability of statutory presumption, it is important that the prosecution first proves the foundation facts. In the case where the statutory presumption is triggered, the burden on the accused is not to rebut the presumption beyond a reasonable doubt. It will be enough if the accused has some serious whereabouts about the authenticity in the case from prosecution. Suffice it if the accused is in a position to create a serious doubt about the integrity of the prosecution case, or the accused brings on record material to render the prosecution version highly improbable. In regards to the standard of proof required in case of presumption, the burden is on the prosecution to prove foundational facts beyond a reasonable doubt. In contrast, the defendant would only have to rebut the presumption on the preponderance of probabilities.
Once the foundational facts are proved on the part of the prosecution side, the accused gets a chance to prove his innocence by proving the negative of what is shaped by the prosecution part. It may be done by establishing evidence of such nature that a man of ordinary prudence would perhaps draw an inference of innocence in his favour. The accused may attain such an end by leading defense evidence or by discrediting prosecution witnesses in the course of effective cross-examination.
Reversed burden of proof in Section 29 and 30 of POCSO Act in which there is presumption regarding commission and abetment of certain offences and presumption of the mental state of the accused respectively is due to the pervasive nature of crimes committed upon a vulnerable soul who in many cases is also not in a pose to comprehend the gravity of these crimes. Due to this, the legislature deemed it apt to employ a reversed burden of proof in these cases.
Thus, statutory presumption underneath Section 29 of the POCSO Act does not intend that the prosecution version is to be handled as gospel reality or authenticity in each case. The presumption doesn't do away with the imperative responsibility of the Court to analyze the proof on record in the mild of unique functions of a specific case such as innate infirmities within the prosecution version or exercise of entrenched enmity between the accused and the victim giving upward thrust to an impossible inference of falsehood inside the prosecution case at the time of figuring out whether or not the accused has discharged his onus and mounted his innocence within the given records of a case.
The Term 'Unless the Contrary is proved' in Section 29 needs to be examined first, and its miles the duty of the prosecution to set up & show its case, and only then a presumption below fragment of Section 30 may be drawn. The presumption under POCSO Act is essential provisions to ensure the well-being of a child who has restricted capacities and capabilities of positive reception and understanding the mental states of others and even of himself. The presumption seeks to ease the burden and vulnerabilities of an already vulnerable child.
 Shahid Hossain Biswas v. State of West Bengal, (2017) 3 CALLT 243 (HC).  Woolmington v. D.P.P.,  A. C. 462.  Section 29, Protection of Children from Sexual Offences Act, 2012.  Section 30, Protection of Children from Sexual Offences Act, 2012.  Section 30(2), Protection of Children from Sexual Offences Act, 2012.  Article 15, The Constitution of India, 1950.  Article 15(3), The Constitution of India, 1950.  Article 39(f), The Constitution of India, 1950.  Child Abuse Report, Women and Child Development India, 2007.  Ministry of Women and Child Development, Study on Child Abuse: India 2007, Government of India, http://www.wcd.nic.in/ childabuse.pdf.  (2013) 1 SCC 745.  (2008) 16 SCC 417.  1964 (1) Cr.L.J. 437 (SC).  Ibid.  Sachin Baliram Kakde v. State of Maharashtra, 2016 ALL Mr. (Cri.) 4049.  Ibid.  Amol Dudhram Barsagade v. State of Maharashtra, Criminal Appeal No. 600/2017, Decided on 23.04.18 (Nagpur Bench).
(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)