RETHINKING THE ONUS OF PROOF UNDER PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012

This article has been authored by Likhita Agarwal, a third-year student at Maharashtra National Law University, Nagpur.

Introduction

World Health Organization states that the world has adolescents in millions who become victim of the inhumane conduct of child abuse. It can be comprehended as a sexual activity where a child is involved, in which he is not aware of the act and thus, unable to consent to it. It has been also considered against human rights and child rights. The vulnerable situation of children, lead to introducing an exclusive legal structure concerning the issue. Thus, Protection of Children from Sexual Offences Act, 2012 (“POCSO”) was embraced as a legislation that fulfils India’s responsibility as a signatory to the United Nations Convention on the Rights of The Child, which talks about the crime of sexual offences against children.

Other than satisfying the International norms, POCSO was formulated by considering Article 39 of the Constitution which is a part of Directive Principles of State Policy that states that the State shall make and implement policies for children to safeguard their interest and promoting development in safe and dignified environment.

POSCO has notion of reverse onus which is not quite usual in criminal proceedings. Reverse onus means transferring the burden of establishing innocence on the defendant. Under the POCSO Act, Section 29 and 30 mention about ‘reverse onus’.

Section 29 of POSCO talks about presumption as to certain offence as “Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.”

Section 30 of the Act mentions about the presumption of culpable mental state- “In prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.”

The fundamental doctrine of ‘presumption of innocence’ aims to protect the rights and interest of the accused, while on the other hand the objective of ‘reverse onus clauses’ is to prevent the victim and help the prosecutor in a case. There exists conflict between these two notions. As the reverse onus clause can be misused and this can lead to false allegations resulting into mushrooming of a high number of frivolous cases.

In the present scenario, the concept of reverse onus is objected on the grounds of two fundamental rights, against right to equality and right to life and personal liberty.

Against Right to Equality

Right to equality is an intrinsic right that has been conferred by the Constitution of India on all persons. This right displays the acceptance of rule of law in the Indian jurisprudence. It ensures equal treatment without discrimination. In the case of Meenakshi Mills Ltd v AV Vishwanatha Shastri, Supreme Court quoted that,

“Article 14 of this Part guarantees to all persons the right of equality before the law and equal protection of the laws within the territory of India. This article not only guarantees equal protection as regards substantive laws, but procedural laws also come within its ambit.”

As absolute equality is unachievable in any sense, thus classifications are made for wellbeing of the unprotected section of the society. Thus, reasonable classification test has been developed in the case of State of West Bengal vs. Anwar Ali Sarkar, wherein it has been mentioned that the “differentiation shall done only on the grounds of intelligible differentia and the differentiation should have a nexus or relation with the objective of the legislation.” On analysing, it can be inferred that there is no reasonable nexus between clause of reverse onus and purpose of the legislation. The rationale of the statute is to provide shield to children from sexual exploitation and sexual abuse while the reverse onus is promoting the conviction rate which can be fallacious.

Article 14 of the Constitution which scrutinizes anti- majoritarian nature of constitutional law and anti- authoritarian nature of administrative law curbs arbitrariness and unreasonableness, but the reverse burden can be against reasonableness of laws.

The Rule of Law states that no one shall be subject to discrimination. It imposes an affirmative obligation of fair treatment on the state authorities. An important constituent of principles of Rule of Law in Criminal Administration is ‘presumption of innocence’. The opposition of general rule of “innocent until proven guilty”, is disturbing the inherent principle of Rule of Law. The consequence of acceptance of this perspective can be arbitrary and can subsequently infringe the fundamental rights of the accused.

Against Right to Life

Article 21 of the Constitution emphasizes on the ‘Procedure established by law’ which shall be reasonable, just, and fair as well as the right to fair trial is also revered. The Apex Court in the case Kartar Singh v. State of Punjab, stated that for ensuring a procedure to be true, unbiased and fair, it should run in parallel to the principles of natural justice. Furthermore, it was opined in Rupinder Singh v Union of India that even when the purpose is pertaining to the regency in matters of law, no person shall be imperilled by harsh, uncivilized or discriminatory treatment.

In the case Yogesh Maral v State of Maharashtra, the Court was of the view that the scope of Section 29 of POSCO is broad in a sense and prudence shall be observed while its implementation because clue of unconstitutionality can be inferred.

Conclusion

The Legislature in spite of including this provision had the knowledge that there can be possibility of false accusations and thus had a provision of Section 22 in POCSO which punishes those who dishonestly allege the accused for offences under the Act. Interest of not only child but also victim should be considered and thus balance has to be maintained.

The presumption under Section 29 POSCO doesn't collaborate with the punishment. The punishment which is mentioned “rigorous imprisonment for a minimum period of 10 years which can extend up to life imprisonment and fine.” The right to a fair trial is an intrinsic right of people and its infringement can lead to injustice. Presumption of innocence ensures the absence of prejudice and bias. The presumption seeks to ease the burden and vulnerabilities of an already vulnerable child.