Commitment to constitutional safeguards led to incorporating the principle of ‘presumed innocent until proven guilty’ into criminal law.
Representational image. (iStock)
Legislatures worldwide have historically enacted legislation dealing with crimes (or laws against crime) to broadly serve two distinct purposes: Firstly, to prevent crimes from taking place and thereby protect the life and liberty of citizens. Secondly, to limit the uninhibited exercise of state power while dealing with crimes and those accused of committing them.
Legislatures frame substantive and procedural criminal laws to discharge the above two functions. Substantive criminal laws define different kinds of crimes and their respective punishments. Procedural criminal laws, on the other hand, regulate procedure.
For example, a substantive criminal law, on the one hand, would define the offence of murder and its punishment, while a procedural law, on the other, would objectively outline the procedure to be followed during registering an FIR, conducting an investigation, collecting evidence, making arrests, recording statements of witnesses, filing a chargesheet, conducting a trial, etc.
What’s more important is that both these substantive as well as procedural criminal laws must satisfy constitutional obligations. Such statutes must inter alia uphold the rule of law, due process, right to life and liberty of citizens and should be just, fair and reasonable.
This commitment to constitutional safeguards incorporated the principle of ‘presumed innocent until proven guilty’ into criminal law. Such a presumption imposes a burden on the state/prosecution to prove the guilt of the accused beyond a reasonable doubt before a court of law.
This protects against erroneous convictions and allows the accused to obtain bail while the trial is pending. It also protects them against self-incrimination and allows them to remain silent.
This principle, globally known as the golden thread of criminal law, has acquired considerable importance for decades. It is also a positive reflection of how a democratic system is supposed to exercise its coercive and punitive powers and how to maintain reasonable limitations on exercising those powers.
However, over the years, people have felt that certain offences need a reverse burden of proof, i.e., ‘guilty until proven innocent’. In these cases, the accused has the burden of proving his innocence before the court beyond a reasonable doubt.
Given that this was an exceptional deviation from the basic principle of criminal law, it was initially applied broadly to two kinds of cases – cases involving anti-terrorism laws and cases involving drug trafficking. Subsequently, it was also extended to cases involving sexual offences, especially against minors.
The Unlawful Activities (Prevention) Act 1967, The Narcotics and Psychotropic Substances Act 1985, The Terrorist and Disruptive Activities (Prevention) Act 1987, The Prevention of Money Laundering Act 2002, and The Prevention of Children from Sexual Harassment Act 2012 are a few such examples. It is also worth noting that, as a corollary, all these legislations make granting bail while the trial is pending extremely difficult and nearly impossible.
The principle of reverse burden of proof entered all the above statutes because these crimes are so egregious that it is in the general public interest to presume guilt.
Furthermore, these are types of offences where it is particularly difficult for the state to prove the case against the accused if the information regarding the commission of the offence is within his special and exclusive knowledge only.
Upon challenging the constitutionality of such provisions before the Supreme Court, the court upheld the provisions, stating that the legislature did not transgress rights to create an exception to the general rule.
However, courts have subsequently also held that even when there is a presumption of guilt against the accused, and a reverse burden of proof applies, it is the state that has to first prove the existence of basic foundational facts which, prima facie, hint towards the accused having committed the offence.
For example, for the reverse burden of proof to apply against someone accused of an offence under the NDPS Act, the state must first prove that the accused consciously possessed the drug at the time of arrest. Only thereafter would the above presumption apply against him, and the burden would shift upon him from the prosecution’s side. This is some form of protection, given the exceptional nature of the reverse burden of proof itself.
For example, for the reverse burden of proof to apply against someone accused of an offence under the NDPS Act, the state must first prove that the accused consciously possessed the drug at the time of arrest.
However, the principle of reverse burden of proof and presumed guilty until proven innocent, inserted in several statutes, now extends to a broad range of offences. This diminishes the exceptional nature of the rule and slowly transforms it into a norm.
Several recent legislations, such as the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act 2021 (known as the ‘Love Jihad’ law), the Maharashtra Animal Preservation (Amendment) Act 2015 (known as the ‘Beef Ban’ law), and the Uttarakhand Freedom of Religion Act 2018, have extended the said rule to all sorts of crimes.
This is particularly concerning not just because it will turn the basic principle of criminal law on its head but also because it will ensure a dangerous trend of a sudden increase in conviction rates by putting an unreasonable burden on the accused to prove himself innocent against the might of the state and the prosecution. This will have far more negative consequences in the long run than one can imagine.
The exceptional nature of the reverse burden clause requires that the state confine itself within reasonable limits when applying the rule to ensure that it is proportional to the legislation’s objective.
However, making the canvas for the rule bigger will only further accentuate the problem. Such statutes go beyond disproportionality to militate against the most fundamental human rights a constitutional democracy entitles an accused.
(Anurag Tiwary and Nisha Tiwari are Advocates practising before the courts in Delhi. Views are personal.)
(Edited by VVP Sharma)
