Introduction – Reverse Burden
The Protection of Children from Sexual Offences Act was enacted with the objective of upholding the constitutional mandate laid down in Article 15(3) of the Constitution of India. The most unique part of the Statue is the clauses pertaining to presumptions under Sections 29 and 30 which place a reverse burden of proof on the accused in a POCSO trial. The Constitutionality of this burden was recently upheld in a judgement passed by the Kerala High Court in Justin @ Renjith v. UOI the analysis of which is the objective of this article. At the outset it is imperative to understand what is the reverse burden of proof under POCSO, the uniqueness and similarity with other Special Statues, the various ratios reiterated in this judgement and the reasoning behind why section 29 and 30 of POCSO are in fact in consonance with the Constitution of India and the fundamental rights guaranteed by it.
Background
While hearing a writ petition by the accused in S.C.No.590 of 2016 of the Additional Sessions Court-I, Thrissur wherein it was the contention of the Petitioner that section 29 and section 30 were unconstitutional and violative of Articles 14, 19, 20(3) and Article 21 of the Constitution of India the Kerala High Court in this judgement after a percutaneous reading and detailed examination of the precedents of various high courts and of the Hon’ble Supreme court dealt with the issue of whether Sections 29 and 30 satisfy the procedure established by law under Article 21 of the Constitution of India?
Section 29 & 30 of POCSO and Reverse Burden of Proof Therein
To fully understand the ratio laid down in Justin @ Renjith v. UOI, we must delve into the provisions of POCSO that shift the burden of proof on the accused. While Section 29 places a presumption on any person prosecuted under section 3,5, 7 and 9 of POCSO, section 30 presumes mental culpability on any person prosecuted under such offences that involve a prerequisite of mental culpable state. Since the Petitioner faced prosecution for offences punishable under sections 3(a), 5(b), 5(i), 5(m), 5(o), 5(u), 4, 5 and 12 of Protection of Children from Sexual Offences Act, 2012 (for short, “POCSO Act”), amongst others, the presumptions under section 29 and section 30 were applied to him, challenging the constitutionality of which was the main defense of the Petitioner.
Previous Judicial View and Constitutionality
While dealing with the question of the constitutionality of section 29 and section 30, the view of this court while reiterating Andhra Pradesh & Merchant’s Association was that in considering whether absolute liability amounts to imposing unreasonable restrictions, the court has to strike a balance between the individual right and public interest and reiterating K.Veeraswami v UOI and Nikesh Tara Chand Shah v UOI, this court was of the view that strict liability may be imposed in case of serious offences and that the Parliament is competent to place the burden on the accused in its own wisdom and hence there is no question of violation of Article 19.
The court further held that Since POCSO Act was implemented to achieve the mandate under Article 15(3) of the Constitution for providing special protection to children, POCSO Act cannot be challenged on the ground that it offends Article 14 of the Constitution. Further, treating the child victims as constituting a class by itself, is based on an intelligible differentia, and is meant to achieve the object of the Statute. Hence the statutory provisions do not offend Article 14.
While further reiterating Noor Aga v. State of Punjab & Ors. it was held that the presumption of innocence is a human right and cannot per se be equated with the Fundamental Right under Art.21 of the Constitution of India. The court further noted that a statute may be constitutional but a prosecution thereunder may not be held to be one. Fundamental Right is not absolute in terms. In the same case, the Supreme Court also held that Article 20(3) is said to be violated only when the accused is compelled to testify against himself and a mere questioning by police cannot be said to be an infringement of his fundament right, and hence the contention of the Petitioner claiming cross-examination ad a violation of Article 20(3) would stand invalid.
Ratio and View On Reverse Burden Of Proof
After due comparison with other special statues that also place a reverse burden on the accused such as, the Negotiable Instruments Act, NDPS Act, Prevention of Corruption Act etc the court came to the conclusion that, statutory provisions which exclude mens rea, or those offences which impose strict liability are not uncommon and that by itself does not make such statutory provisions unconstitutional. Further, Statutes imposing a limited burden on the accused to establish certain facts which are specifically within his knowledge is neither rare in Indian Criminal Law and nor do they, by itself make such statutory provisions unconstitutional.
In support of this view, it is important to peruse the rationale laid down in Naresh Kumar v State of Himachal Pradesh in which the Supreme Court held that presumption against the accused of culpability under section 35 and 54 of NDPS to explain possession satisfactorily are rebuttable. It does not dispense with the obligation of the prosecution to prove the charge beyond all reasonable doubt. The presumptive provision with a reverse burden of proof does not sanction conviction on basis of preponderance of probabilities.
To read the ratio and the supported view of the aforementioned judgement the provisions of reverse burden of proof can be crystallized down to the principle Section 29 would come into operation only when the prosecution is able to establish the facts that would form the foundation for the presumption u/s 29 of POCSO otherwise, all the prosecution would be required to do was file a charge sheet against the accused under the provisions of the said Act and then claim that the evidence of the Prosecution Witnesses would have to be accepted as the gospel truth irrespective of the defence given by the Accused as has been duly held by the Bombay High Court in Navin Dhaniram Baraiye v State of Maharashtra.
Significance
The golden rule of Criminal Jurisprudence i.e every accused must be presumed innocent until proven guilty is not absolute. An exception to this is strict liability in cases of serious offences, such as those falling under the purview of POCSO. A reverse burden of proof is given to the accused shifting the onus to disprove his guilt and the prosecution story under section 29 and 30 of POCSO. This judgement while keeping the previous judicial view in mind reassures the principle that this burden shifts to the accused only on the condition that the Prosecution proves the foundational facts beyond any reasonable doubt failing which the accused shall have no liability to disprove the said alleged facts.
Conclusion
In view of the fact that several special statues that contain presumptions have been challenged on the ground of unconstitutionality, such as NDPS and PCA, this judgement serves as an already adjudicated precedent to cite and preside as a noteworthy reference in the future for cases arising out of similar facts and circumstances. To ignore the relationship between constitutional law and criminal law would be a grave mistake in lieu of this judgement which its wisdom has confirmed the constitutionality of the reverse burden of proof not only under POCSO but also in other statues of criminal law.
About the Author Tanvi [2017-22] is pursuing B.A.LL.B from ILS Law College, Pune.
Criminal Law Research & Review 