The sudden death of Sushant Singh Rajput and the subsequent events opened up a pandora’s box of problems for various celebrities. Summons and arrests gripped the Bollywood industry with many known personalities making the headlines for all the wrong reasons. Nearly a year into the case, the Bollywood-drug cartel nexus still draws the headlines once in a while. The charges were framed under the Narcotic Drug and Psychotropic Substance (hereinafter NDPS) which contains reverse onus clauses. The constitutionality of these clauses was challenged nearly a decade ago and considering the turn of events it becomes important to revisit the case and have a jurisprudential analysis.
The presumption of innocence is considered one of the most important rights of the accused in criminal jurisprudence. It dates back to the natural law jurisprudence where the supernatural decision of guilt or innocence was replaced by the ‘safer path’ doctrine.[i] It gained certainty after the decision in Woolmington v. Director of Public Prosecution where it was described as the ‘golden thread’ in criminal law. However, the statutory exceptions mentioned in this case have increased to large numbers. This principle has been attacked by the reverse onus clauses which carry certain presumptions and transfers the burden of proof on the defence. It was no surprise that one of these clauses was challenged in the Supreme Court for violating the fundamental rights of the accused. However, in Noor Aga v. State of Punjab, the Supreme Court did not place reliance on the principles governing the compatibility of such clause with the rights of the accused.
In pursuance of this, the article briefly analyses the flaws in the reasoning adopted by the court in Noor Aga v. State of Punjab and the principles from the criminal jurisprudence that the court could have looked into in deciding the outcome of the case.
Analysis – Noor Aga v. State of Punjab
The reverse onus clauses with respect to section 35 and 54 of the NDPS Act were held as constitutional by the Apex court. Although the court acknowledged that the presumption of innocence is an important human right and that strict offences need to comply with a high standard of proof yet it upheld these sections as exceptions. The Court provided that the actus reus of the accused needs to be proved at a high standard but it failed to recognize that by providing such a high standard, the standard is lowered as compared to the normal offences which cast the duty on the prosecution to prove both actus reus and mens rea. In light of public interest for such clauses, it overlooked the increase in wrongful conviction and the decrease in the faith of the public from the legal system which forms the basis of criminal jurisprudence. The court also contradicted itself in the judgment when it stated that they cannot develop the law, yet they created law when they provided individual liberty enshrined in Article 21 to be subject to societal interest.
The Apex court discussed certain parts of the judgements of the English courts without going into the principles those courts used. Furthermore, certain tests have been discussed by the court in its judgement but have not been taken into consideration while deciding the constitutional validity. The court discussed the case of Regina v. Lambert which was a similar challenge. It read down the burden of proof on the basis of the seriousness of the offence and hence allowed only for evidential burden which means the defence should only establish that there is sufficient evidence to the contrary. However, in the present case, the court did not even look into the aspect of the seriousness of the offences while deciding the case. Similar was the case of R. v. Hansen which was discussed where the court had rejected the argument for the legality of such clauses on the basis of difficulty in proving such offences and severe consequences. It was rejected on the principle of proportionality with respect to the seriousness of the offence and was held that the seriousness of the offence makes it harder to infringe with the right of the accused to be presumed innocent. Although the test of proportionality has been discussed by the court in the instant case, it provides no reason for not following the reasoning adopted from that case.
Further, the court in the instant case has also discussed R. v. Johnstone and has applied the principles mentioned in that case. The reasoning used in the aforementioned case is not properly interpreted by the court. The offence in the aforementioned case was of a regulatory nature and there is extreme proof of imbalances in such cases. With respect to such regulatory offences, the people involved in the profit businesses are often issued a licence or are provided with notice of the regulations and conditions attached to these activities. There exists a proof imbalance in such activities in favour of the defendants and such businesses are bound to be aware of the restrictions involved in these activities. The mens rea in these offences can be certainly attributed to the warning issued in the form of license and other notices.
Similar was the case of Sheldrake v. Director of Public Prosecution involving a regulatory offence which was also considered by the court. It was a case of driving over the prescribed alcohol limits and as mentioned above the driver is expected to have the knowledge and also to follow the traffic rules and other laws related to it when he is provided with the license. If he does not follow these regulations it follows that he had the requisite intention to commit an offence. With the knowledge of such regulations and laws, the driver should reasonably be expected to prove his innocence. It follows that the peculiar knowledge of certain regulations has been used mostly in cases concerning regulatory offences.
However, the instant case does not deal with any such regulatory offence but the court has used this principle to come to its judgement. It comes as a surprise that the court has not drawn parallel with the English cases challenging the validity of similar Act but has used the principles of the cases which involved entirely different criminal act.
Principles that the Court could have looked into
The constitutionality of reverse onus clauses has been challenged in various jurisdictions across the world. Most of these jurisdictions provide the presumption of innocence as a fundamental or statutory right. One of the foremost challenges with respect to reverse onus clauses was put up in the case of R. v. Oakes. It should be noted that the presumption of innocence as a right is mentioned in the Canadian Charter of Rights and Freedoms. It established certain tests for determining the validity of such clauses and these tests continued to be followed across the world. Similarly, after the enactment of the Human Rights Act in England, the courts started evolving certain tests. The most important was the rational connection test which stated that the presumed fact should be rationally connected to the basic fact and should not be arbitrary. However, if we look at section 54 of NDPS Act, no rational connection is drawn for the presumption of offences to exist by mere possession of illicit articles.
The presumption of innocence is nowhere mentioned as a right in India. The court in the instant case, instead of borrowing principles from the legal systems where such rights have been provided could have looked into principles of those legal systems where such rights have not been mentioned. The United States provide a better understanding of the matters dealing with fundamental rights in India because of the similarity of these rights in these two countries and US legal system also do not provide a presumption of innocence as a right. The US court established the ‘more likely than not’ test to determine the validity of reverse onus clauses which further went on to become the rational connection test. The mandatory presumptions in their acts were only permissible if it satisfied this test. Even the Oakes standard, which is widely relied on today, drew its ideas from the case laws of the United States to incorporate the rational connection test. The United States Supreme Court has used this test to protect its due process rights in the Fifth and Fourteenth amendments. The Indian Constitution has a similar right under article 21 which has been interpreted as the due process doctrine in Maneka Gandhi v. Union of India. The Supreme Court in the instant case should have referred to the US decisions in light of these peculiar similarities instead of picking and choosing principles from specific English cases.
Further, the rational connection test can also be seen to be applied in the other tests that have been formulated by the English courts. With regard to the test in respect of the seriousness of an offence, reverse burden clauses are validated in less serious offences which are mainly of regulatory nature. In the case of regulatory offences there exists a rational connection between the actus reus and the mens rea in light of the notices or license provided beforehand. The peculiar knowledge test has also been mainly used by the English courts in cases involving regulatory breach such as Grundy. This follows the rational connection that exists in such type of offences. However, in the case of other offences, this test has not been applied because mens rea cannot be attributed to the basic facts. The rational connection test which follows from the proportionality test is considered one of the most suitable tests to strike a balance between the legislative intention and the rights of the accused.[ii] The Supreme court in the instant case should have considered the principle of rational connection test which has been followed in most of the drug control legislation challenges across the world.
The case could be analysed from the three stages of constructive interpretivism theory of Dworkin to arrive at the decision. The pre-interpretive stage is the rules in the NDPS act governing the practice of drug abuse and control. The interpretive stage provides for the general justification of such a rule which justifies it in the best way. This justification has been stated by the court as public interest. The post-interpretive stage deals with analysing the factors which could better serve the justification that has been thought of in the interpretive stage. However, the court in this stage did not take into account these factors which could have maintained the balance between the purpose of the legislation and the rights of the accused. It also defeats the theory of Law as the integrity of Dworkin which follows that the judges should give much importance to the legal rights and duties as they are a clear expression of the concept of fairness and justice.
The judgement follows the approach of picking and choosing the legal principles and tests from other jurisdictions for the purpose of reaching a presupposed notion. The tests which were established in the challenge to reverse onus clauses in narcotics have subtly been ignored and the tests for regulatory offences have been used by the court creating a logical fallacy. Further, it is a classic example of the realist view of statutory interpretation which states that the policy preference of the judges forms a basis for the purpose of interpretation.
[i] James Whitman, The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (2008), 116,117.
[ii]Velenski v. Conservator of Forests, Court of Appeal, 1 November 1985 (C.A. 39/85) unreported.
About the Author, Jatin is pursuing B.A.LL.B (Hons) from the National Law School of India University, Bangalore.