Burdening the burdened: A constitutional scrutiny of reverse onus clauses - The Daily Guardian
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Burdening the burdened: A constitutional scrutiny of reverse onus clauses

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. 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.

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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.

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GAUHATI HIGH COURT QUASHES NO-CONFIDENCE MOTION AGAINST GRAM PANCHAYAT PRESIDENT CITING PARTICIPATION OF MEMBER DISQUALIFIED FOR HAVING THREE CHILDREN

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The Gauhati High Court in the case Jugitawali Pawe v State of Assam and 15 ors observed and quashed a resolution expressing no-confidence in the petitioner – the President of a Gram Panchayat, as a result of which she as removed from office. It was stated that it is as per the citing no compliance with Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995.

It was preferred by the petitioner to the materials available on record to argue that one of the members of the Gaon Panchayat, the respondent. The respondent voted against the petitioner and had given birth to her third child the previous year. Moreover, by virtue of Section 111(2)(a) of the Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995, the petitioner stood automatically disqualified on the date of voting. Following, which her vote was taken by passing No-confidence motion.

It was prayed by the petitioner in the plea for setting aside the impugned resolution and for issuance of a direction to restore his client back in the office. Thereafter, to initiate fresh proceedings, liberty should be granted to the respondent, following the due process.

It was agreed by the Counsel representing for the respondent that the said member of the panchayat had been disqualified but retained on the ground that the disqualification would have no bearing on the petitioner’s case, as the impugned resolution was passed before the declaration of petitioner disqualification.

In the present case, It was noticed by Justice Suman Shyam the member had voted against the petitioner and without her vote. The petitioner would not have been ousted from office. Justice Shyam also found no dispute about the fact that the member had incurred disqualification under the law prior the date of adoption of the impugned resolution. Justice Shyam found it unnecessary to delve into other aspects of the matter which includes the procedural formalities for declaring the member a disqualified candidate.

It is observed that the impugned resolution was declared to be vitiated and liable to be set aside. Further, the Court restored the petitioner to the office of the President of the Bongalmara Gaon Panchayat with immediate effect and it was stated by the court that the order will not stand in the way should the authorities or any member of the Gaon Panchayat propose a fresh motion of “no-confidence” against the petitioner and the due process of law needs to be followed.

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Halt DDA’s demolition action against jhuggis in Nizamuddin’s Gyaspur area, orders Delhi High Court

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board, the residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Manoj Gupta & Ors. v. DDA & Ors observed and has ordered status quo on the Delhi Development Authority’s proposal to demolish jhuggi clusters in city’s Gyaspur area in Hazrat Nizamuddin. The vacation bench comprising of Justice Neena Bansal Krishna observed in the petition filled by the residents and the court granted an interim relief.

It was ordered by the court status quo till July 11, the next date of hearing.

The bench orally remarked that a ten-day delay in demolition won’t make a difference but if today it is demolished and later, we come to know that they were entitled, who’s going to… the bench will consider it on July 11, 2022 but in the Meanwhile, some protections are entitled them. Adding this, Status quo be maintained. If since 1995, they have been there, heavens won’t come down if for 10 more days they are protected.

In the plea the petitioner stated that the T-Huts settlement in the area, which was stated by the authorities to vacate. It has been in existence for almost two decades and compromise of 32 jhuggis or households.

In the plea it was alleged that the bulldozers have been parked around the camp and a DDA official has orally asked them to vacate the area and it is noted that till date no proper notice have been sent to them nor has DDA conducted any survey of the area.

Furthermore, the DDA did not provide any alternate arrangement for their rehabilitation which resulted in extreme distress among the residents.

Moreover, it was admitted by the petitioner that the land in question belongs to DDA and they may seek that status-quo to be maintained at the site. It was urged that the residents should not be physically dispose or evicted from the demolition site until the survey is conducted and rehabilitation is provided to the residents as per the DUSIB policy of 2015.

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board. The residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

It is observed that in the case Ajay Maken v. Union of India, Reliance is placed on the Supreme Court decision and the High Court decision in the case Sudama Singh & Ors. v. Government of Delhi & Anr, it was held in the case that that removal of jhuggis without ensuring relocation would amount of gross violation of Fundamental Rights under Article 21 of the Constitution. Further, it was held that the agencies conducting the demolitions ought to conduct survey before undertaking any demolition.

It is submitted that these observations would apply across the board, in the entire NCT of Delhi.

Advocates Vrinda Bhandari, Shiyaz Razaq, Kaoliangpou Kamei, Jepi Y Chisho and Paul Kumar Kalai, represented the petitioner.

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TELANGANA HIGH COURT: PLACE OF RESIDENCE OF THE ARBITRATOR WOULD NOT BE THE SEAT OF ARBITRATION

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The High Court of Telangana in the case M/s S. Square Infra v. Garneni Chalapathi Rao observed and held that the place of residence of the arbitrator would not determine the seat of arbitration.

The Single bench comprising of Justice P. Sree Sudha observed and held that merely because an arbitrator residing in Hyderabad has been appointed, it does not mean that only the Courts at Hyderabad would have the jurisdiction to decide all the matters arising out of arbitration agreement.

Facts of the Case:

In the present case, after the dispute arouse between the parties, the respondent sent a letter to the petitioner for nomination an arbitrator who is residing in Hyderabad. To its said notice, petitioner replied and declined the appointment of the arbitrator for the reason that there was no dispute which required the appointment of an arbitrator.

A suit was filled by the respondent before the VII Additional District Judge Sangareddy, seeking for relief of permanent injunction. An application was filled by the petitioner under Section 8 of the Arbitration & Conciliation Act and the parties referred to the arbitration.

An application was filled by the respondent under section 9 of the Arbitration & Conciliation Act before the Principal District Judge, Sangareddy, Subsequently, an application was filled by the petitioner for transferring the application from the Court at Sangareddy to Court at Hyderabad.

Contentions made by Parties:

On the following grounds, the petitioner sought the transfer of application.

An arbitrator residing in Hyderabad was nominated to respondent. However, only the courts in Hyderabad would have the jurisdiction to decide all the matters arising out of the arbitration.

It was stated that the nomination of an arbitrator residing in Hyderabad amounted to designating Hyderabad as the Seat of Arbitration.

On the following grounds, the respondent countered the submissions of the petitioner:

An application was filled by the petitioner under Section 8 of the A&C Act before the Court at Sangareddy. However, in terms of Section 42 of the A&C Act, only the court at Sangareddy would have the jurisdiction to decide all the matters arising out of arbitration.

Court Analysis:

The Court held that the seat of arbitration would not be decide by the place of residence of the arbitrator.

The argument of the petitioner was rejected by the court that since the respondent had initially nominated an arbitrator residing in Hyderabad, the Hyderabad Court would have the jurisdiction.

The court stated that merely because a party has nominated an arbitrator who resides in Hyderabad, the same would not designate Hyderabad as the Seat of arbitration in absence of any designation of the seat under the arbitration agreement.

It was further stated by the court that the application filled by the petitioner filled under Section 8 application before the Court at Sangareddy consequent to which the parties were referred to arbitration. Therefore, the Court would have the jurisdiction, in terms of Section 42 of the A&C Act.

The Transfer petition was dismissed by the Court.

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DELHI HIGH COURT REMANDS IN THE MATTER BACK TO ASSESSING OFFICER AFTER SETTING ASIDE: JUST 3 DAYS’ TIME GRANTED TO RESPOND TO THE INCOME TAX NOTICE

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plea in Delhi High Court seeking repatriation of 56 pregnant nurses

The Delhi High Court in the case Shubham Thakral Vs ITO, the Delhi bench comprising of Justice Manmohan and Justice Manmeet Pritam Singh Arora observed and remanded the matter back to the assessing officer as just 3 days’ time was granted to respond to the income tax notice.

In the present case, the petitioner/assessee assailed the notice under Section 148A (b) of the Income Tax Act, 1961 and the order passed under Section 148A (d) for the Assessment Year 2018–19.

It was contended by the assessee that only three days’ time was granted to the assessee to respond, as against the mandatory statutory period of at least seven days. However, despite of the fact that the annexure attached to the notice gave the petitioner eight days to respond, the e-filing submission portal was closed earlier, in violation of Section 148A (b) of the Income Tax Act.

Furthermore, the petitioner relied on the decision of Delhi High Court, in the case of Shri Sai Co-operative Thrift and Credit Society Ltd versus ITO, the Delhi High Court in the case held that under Section 148A (b), a minimum time of seven days has to be granted to the assessee to file its reply to the show cause notice.

No objections were raised by the department/respondent to the matter being returned to the Assessing Officer for a fresh decision in accordance with the law. Accordingly, the court set aside the order passed under Section 148A (d) for the Assessment Year 2018-19. The Assessing officer was directed by the court to pass a fresh reasoned order in accordance with the law after considering the reply of the petitioner, which was directed to be filed within a week.

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ALLAHABAD HIGH COURT: ADVOCATES SHOULDN’T ADVISE CLIENTS TO REAGITATE MATTERS IF THERE IS NO ERROR APPARENT ON FACE OF RECORD

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The Allahabad High Court in the case Malhan and 17 Others Vs. State Of U.P. And Another observed and stated that an advocate should be given such a piece of advice when there is no error apparent on the face of the record nor was there any reason why the matter be re-agitated it was finally decided.

The bench comprising of Justice Dr. Kaushal Jayendra Thaker and Justice Vivek Varma observed while dealing with the civil review application wherein the bench observed the concerned advised his client to make a chance by filling the instant review application after a period of six year.

In the present case, a civil review petition was filled along with the application under section 5 of the Limitation Act, 1963., the application was filled for seeking condonation of delay in filling the application, the application was filled with a delay of six years i.e., 1900 days.

It was stated by the applicant that the review application could not be filled due to the blockage of public transportation on account of the COVID-19 guidelines.

Moreover, the court observed that the appeals were disposed of by the Apex Court in the year 2016 and only in 2020-2021, the pandemic struck India and furthermore, it cannot be said that due to the COVID guidelines the public transportation was blocked and however, the applicant could not come to Allahabad Court to file review.

Further, it was stated that the court asked the counsel for the review applicants to explain the delay in filling the review application, to which the council gave a strange reply that the counsel had advised the clients that they must take a chance by filling this review application after a period of six years.

Following this, the Court observed:

The court noted that an advocate should not give such an advice when there is no error apparent on the face of record nor was there any other reason that when the matter was finally decided, why the matter be re-agitated.

It was stated that the court has no reason to condone the delay of six years as the same was not explained as to why this review application is filed after such an inordinate delay.

The Court opined that the lapse in approaching the court within the time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, this would add to his negligence and the relevant factor going against him.

The court observed that careless and reckless is shown by the review applicant in approaching the court and due to the condemnation of delay in the application with a token cost of Rs.10,000/, the court dismissed the application.

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SUPREME COURT CRITICISES HIGH COURT: POSTING ANTICIPATORY BAIL PLEA AFTER TWO MONTHS CAN’T BE APPRECIATED

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The Supreme Court in the case Sanjay versus The State (NCT of Delhi) & ANR observed and stated that in the case where personal liberty is involved, the court is expected to pass orders at the earliest while taking into account the merits of the matter in one way or other. Further, the top court observed that posting of an application for anticipatory bail after a couple of months cannot be appreciated by the court.

The bench comprising of Justice C. T. Ravikumar and the Justice Sudhanshu Dhulia was hearing a June 2 SLP against the Delhi High Court in a petition filed under section 420, 467, 468, 471, 120-B, 34 of the Indian Penal Code, 1860 for seeking anticipatory bail in a 2022 FIR, a notice is issued. It was stated that the learned APP for the state is present and accepts the notice and seeks time to file status report. The High Court in the impugned order stated that Let the status report be filed by the state prior to the next date with an advance copy to the learned counsel for the petitioner. The matter is to be list on 31.08.2022.

It was noted by the bench comprising of Justice Ravikumar and the Justice Dhulia that in the captioned Special Leave Petition, the grievance of the petitioner is that the application for anticipatory bail moved by the petitioner, being Crl. M.A. No. 11480 of 2022 in Bail Application No. 1751 of 2022 without granting any interim protection, was posted to 31.08.2022. on 24.05.2022, the bail application was moved on.

However, the bench asserted that the bench is of the considered view that in a matter involving personal liberty, the Court is expected to to pass orders at the earliest while taking into account the merits of the matter in one way or other.

It was declared by the bench that at any rate posting an application for anticipatory bail after a couple of months cannot be appreciated by the court.

Further, the bench requested to the High Court to dispose off the application for anticipatory bail on its own merits and in accordance with law expeditiously, preferably within a period of three weeks after reopening of the Court. Adding to it, the bench stated that if the main application could not be disposed off, for any reason, within the stipulated time, relief sought for in the interlocutory and on and on its own merits, the application shall be considered.

While disposing of the SLP, the bench directed in its order that we grant interim protection from arrest to the petitioner herein, Till such time.

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