Innocent Until Proven Guilty? Not Under These Laws

Innocent Until Proven Guilty? Not Under These Laws

by Ananth Krishna - Wednesday, April 4, 2018 12:48 PM IST
Innocent Until Proven Guilty? Not Under These Laws(Klaus with K/Wikimedia Commons)
  • Here are some laws that require the accused to prove his innocence, leading to potential misuse.

    It’s time there is a rethink on the shifting of burden of proof.

One of the fundamental principles of criminal law is the presumption of innocence, where the legal system presumes that the accused person is innocent until proven beyond reasonable doubt that he is guilty. However, this principle is ‘diluted’ in certain crimes where there is an emphasis on deterrence. These crimes are generally classified as ‘socio-economic’ crimes, where the victim is not just one person, but the whole of society in general. Therefore, the logic goes that these crimes should attract high penalty so as to further deter them.

A Short List Of Laws Under Which The Accused Has To Prove His Innocence

1. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

The Prevention of Atrocities Act, 1989 was enacted as a ‘hate crime’ legislation that criminalised a variety of acts, and increased their punishment. Along with this, the act under section 8, shifts the presumption of innocence under certain situations. Through the 2014 amendment of the act, it is now presumed that the accused was aware of the person’s caste/tribal identity if he was acquainted with the family, and the onus is on the accused to prove otherwise.

Recently, the Supreme Court diluted the act with its judgement in Dr Subash Mahajan vs State of Maharashtra case, whereby it underlined that arrests under the act can be made only after obtaining the permission of the Senior Superintendent of Police and further scrutinised by the magistrate before ordering continued detention. This directive of the Supreme Court angered various Dalit organisations, who protested by calling for a Bharat Bandh on Monday (2 April 2018).

2. Prevention of Corruption Act, 1988

The Prevention of Corruption Act also has a similar provision under section 17, which presumes that any gratification (illegal gratification that is received by the public servant is a bribe.

3. The Narcotics and Psychotropic Drugs Act (NDPS), 1985

Section 54 of the NDPS Act operates under the presumption that the person who is caught with drugs is guilty unless it is proved that his possession of the drugs was legal. Further, under section 35, the court presumes that the accused had an intention with regard to possession of drugs, unless proven otherwise and beyond reasonable doubt.

4. The Essential Commodities Act, 1955

The Essential Commodities Act is a legislation that attempts to control the production and distribution of certain ‘essential’ commodities to the general public.

If the Central Government notifies a stockholding limit for a good, for instance, sugar, which is an essential commodity under the act, for a particular period, then the wholesalers, retailers and importers can only stockpile sugar to that limit. If they stockpile sugar beyond that limit and the state suspects them of the same, then they will have to prove beyond reasonable doubt that they were not acting with spurious intentions.

5. The Food Adulteration Act, 1955

Under section 19 of the Food Adulteration Act, 1955 a person in possession of a cosmetic, drug or food item, which is reasonably suspected to be adulterated, has to prove that the item is not adulterated.

6. Customs Act, 1962

Under Section 123 of the act, the burden of proof lies on the accused. He has to prove that the goods, reasonably believed to have been smuggled, were bought legally. Similar provisions exist under sections 138 A and 139 of the act.

7. Dowry-related deaths under IPC, 1860

Section 304 -B of the Indian Penal Code, 1860 establishes a certain presumption regarding deaths of married women within seven years of marriage. If the death of the woman was caused by burns or bodily injury or occurred under suspicious circumstances, and there is evidence to show that she was subjected to cruelty or harassment for dowry, the death is deemed to have been caused by the husband or his relatives, who harassed the woman for dowry.

These provisions go against the general principle of criminal law, and they shift the burden of proof to the accused to prove his innocence in varying degrees. This can possibly lead to an unscrupulous use of the provision to harass innocent persons. This is especially true in case of the Atrocities Act, which creates a litany of offences.

The Communal Violence Bill, 2011 that was proposed by the United Progressive Alliance Government also had similar provisions.

The move of the Supreme Court to dilute the Atrocities Act was motivated by the misuse of the act, which as earlier mentioned, has stringent provisions. The Indian legal system, with its huge backlog will by itself be a challenge to the innocent.

There needs to be a rethink on the shifting of burden of proof, as Blackstone stated: “It is better that ten guilty persons escape than that one innocent suffer".

Ananth Krishna is a lawyer and observer of Kerala's politics.
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