Sunday, November 23, 2014

Reversing burdens - the new old thing

Innocent until proven guilty: this may well be the most popular sentence associated with criminal trial. Accordingly, the proof of guilt lies on the prosecution and not the accused. A student of criminal law will tell you that this forms the Golden Thread that runs through the criminal law [Woolmington v. DPP, (1935) UKHL 1]. Golden or not, the idea seems to have become sufficiently ingrained in criminal justice across the globe, that deviations from this principle seem odious to one and all. Deviations, however, have become rather frequent as time has passed. Today, it is a common feature to have provisions which impose the burden to prove innocence upon the accused. These onerous "reverse-onus clauses" as they are referred to, need closer attention.

Why reverse the burden?
It is rather obvious, isn't it? The State has an interest in seeking convictions, and by reducing the prosecution burden it seeks to further this interest. It is not coincidence that most serious crime today contains some element of reversing burden. Drug laws, Money Laundering, Dowry Death, Tax evasion, Environmental Pollution: all place a burden upon the accused to prove that did not commit the offence.

The Problem?
The burden to establish facts must lie somewhere. In a criminal trial the parties are the State and the individual. At some level, this trial continues to be perceived as a gladiatorial contest between the opposite parties. Having David versus Goliath does not seem fair to most, until David has a trick up his sleeve. There are no tricks here, but what the law can do is impose the burden to prove facts upon the all-mighty State. To brand an individual a criminal and deprive him of his liberty, the State must be prove, beyond reasonable doubt, that he committed the offence. 

Naturally, there are some facts only the accused individual can prove or disprove by leading his evidence. For these facts of personal knowledge, the burden rests on the Accused to show their existence or not [see Section 106, Indian Evidence Act 1872]. However, this shifting of an evidential burden of proving facts, never became shifting of the substantive burden at the trial to prove guilt or innocence. Reverse burdens, therefore, strike at the very core of proving criminal liability as we have understood it for centuries.

Are such clauses constitutional? Unsurprisingly, the Supreme Court in Noor Aga v. State of Punjab [(2008) 16 SCC 417] held they are. There, the Court was concerned with Sections 35 and 54 of the Narcotics Drugs and Psychotropic Substances Act 1988 [NDPS]. These required the prosecution to establish existence of certain facts, after which the burden shifted on the accused [there was another issue before the Court, concerning confessions to excise officers, which is not pertinent to discuss here].

The Bench, speaking through Justice Sinha, held that the presumption of innocence was undeniably curtailed by employing reverse-onus clauses. But, did that entail a denial of some fundamental rights? Article 21 was pressed forward as a candidate, but Justice Sinha disagreed. Peculiarly, he sought to distinguish the acknowledged status of the presumption of innocence as a human right from being a fundamental right under the Constitution. Following which, he sought to use the same constitutional standards to determine the matter, limiting the use of such reverse-onus clauses [For more on the constitutional argument, see, Juhi Gupta, "Interpretation of Reverse Onus Clauses" 5 NUJS Law Review 49 (2012)].

Judicial Lawmaking and the Standard of Proof 
The finding on constitutionality is in fact, mundane, compared to what follows. Under the law of evidence, colloquially it is understood that civil and criminal cases impose a different standard of proof. While facts in civil cases need to be established on the balance of probabilities, criminal law places a higher standard of beyond reasonable doubt. Section 35 of the NDPS Act remarkably required an accused to prove that a culpable state of mind (mens rea) was absent, beyond reasonable doubt. Justice Sinha read down this standard, observing that "the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of accused on the prosecution is "beyond all reasonable doubt" but it is `preponderance of probability'on the accused". This observation is not restricted to Section 54, which means the Learned Justice re-wrote the text of the Statute. His views have not been criticised, or challenged by a subsequent decision.

The Supreme Court on several occasions has deprecated such judicial lawmaking [most severely in Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683]. Judges can at best show the way, which the Legislature must then decide whether or not to follow [Standard Chartered Bank & Others v. Directorate of Enforcement & Others, (2005) 4 SCC 530]. Undoubtedly, requiring the accused to establish his case beyond reasonable doubt deals a terrible blow to individual liberty and increases the possibility of wrongful convictions. However, this decision has been taken by the Legislature, and any change must also flow from there. Judges cannot usurp this function, and re-write laws because this offends their sensibilities. The subjective nature of that determination easily manifests uncertainty. So, while Justice Sinha deleted half of Section 34, Justice Singhvi decided not to leave that task to the Legislature for Section 377 IPC [Naz Foundation (India) Trust v. Suresh Kumar Koushal, (2014) 1 SCC 1].

The manner in which reverse-onus clauses operate in India should be clearer now. Proper or not, Justice Sinha has ensured that reverse-onus clauses, which require the accused to prove innocence as opposed to a mere fact, can only be used sparingly. It has also resulted in judges holding the prosecution to a very strict standard of proving the initial facts, only after which the burden shifts on the accused. Finally, then, the accused is not required to prove his case to a standard as high as the prosecution, even if the black letter of the law says otherwise.

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