Guest Post: Trapped and Purged – the Foreigners Tribunal Regime in Assam and the Criminalisation of the citizen

(This is a guest post by Padmini Baruah)

The latter half of 2019 witnessed an uproar in India over a packet of legislation / executive policy consisting of the National Population Register [“NPR”], National Register of Citizens [“NRC”] and the Citizenship Amendment Act [“CAA”]. This NPR-NRC-CAA triumvirate sparked off a wave of protests against the violation of the foundational principles of secularism and equality as protected in the Indian Constitution. This was preceded by the release of the National Register of Citizens in Assam in August, 2019; an exercise designed to oust “illegal immigrants” which led to 1.9 million Indian citizens being excluded from its roster.

The fate of these people merits careful consideration; their status will be determined by Foreigners Tribunals [“FT”] in Assam. In this context, I examine the genesis of this notorious body, and how it has been operating as a quasi-criminal court over the past 5 decades.

The FT find their roots in the Foreigners Act, 1946. This Act defines a foreigner as a person who is not a citizen of India, and places the burden of proving that one is not a foreigner on the person themselves. Established through an executive order – the Foreigners Tribunal (Order) 1964 — the FT performs the task of filtering out whether or not one is a foreigner. Between 1985 till date, FTs have declared over 1,00,000 people as foreigners through processes that are arbitrary, and overstep the bounds of procedural fairness in multiple ways.

The FT Process

An FT process is initiated in two ways – through reference by the Assam Border Police and through the Election Commission of India’s identification of a person as a Doubtful Voter in the voting list.There are no guidelines determining how this reference is made — in my scrutiny of multiple Border Police references, I have seldom come across any grounds for suspicion. Procedural aberrations begin at this stage – to initiate proceedings, notice must be provided to the suspected foreigner, but, as an examination of High Court challenges to FT cases shows, in multiple instances, there is a failure to serve notices in a proper manner, meaning that many people are unaware that their citizenship is under scrutiny. Despite this clear breach of procedure, FTs forge ahead with ex parte proceedings, where people are declared foreigners without being provided the opportunity to present their case. Thus far, over 63,000 people have been declared foreigners in this manner.

It is pertinent to note that FTs are styled in the manner of civil court governed by the provisions of the CPC in terms of summoning and enforcing the attendance of any person, examining them under oath, discovery and production of documents, and the examination of witnesses. FTs have been given the flexibility of determining their own procedure; the Supreme Court has held that “…Tribunals generally regulate their own procedure applying the provisions of the Code of Civil Procedure only where it is required, and without being restricted by the strict rules of the Evidence Act”

However, it is seen that FTs apply provisions of the Indian Evidence Act, 1872 in an extraordinarily stringent and selective manner, effectively applying the same standard as a criminal trial. Public documents proving citizenship, such as voter lists, are to be certified before submission. Sections 61—65 of the Evidence Act are applied to private documents; thus, critical identifiers such as residence certificate issued by the village headman, nikahnama, Panchayat certificate proving lineage with the father are rendered inadmissible in the absence of testimony from the issuing authority.

Women face the brunt of this disproportionately, as the system bases itself on the notion of patrilineal descent. Despite there being proof of women’s names appearing in voter lists, in the absence of proven linkage with the father’s side of the family, they are declared as foreigners. Moreover, deposition by family members (who are citizens) attesting to their relationship with the person accused is often disregarded, in clear contradiction to the principles of Section 50 of the Evidence Act. FTs also rule against persons on the basis of minor discrepancies in documentation, such as spelling errors and contradictory dates, disregarding all other evidence. They are strongly incentivised to declare people as foreigners, which contributes to their disregard of documents and testimonies.

Immcarceration

Finally, the repercussions of FT adjudications amount to criminal penalties. A person declared foreigner is stripped of citizenship, and rendered face to face with the prospect of detention as a prelude to deportation. Detainees fare worse than those convicted of crimes; in the absence of parole, access to work, healthcare or recreation, their existence is a testament to the “immcarceration” regime propagated by FTs. In the event that the person is not detained, they exist in limbo, with no citizenship, and therefore no access to any rights whatsoever.

The fact that a person is subject to such strict standards of evidence and procedure for a civil proceeding, failing which the consequences are so extraordinarily harsh is tantamount to a failure of the rule of law. Most people hauled up before the Foreigners Tribunals are from backgrounds where they can ill-afford proper legal representation. The FT regime leans towards making criminals out of those who are unable to prove their citizenship. This system reinforces the adoption of a crimmigration regime – the boundary lines between citizenship laws, procedures and practices and crime control strategies are increasingly blurring. The use of the law enforcement system in the form of the Assam Border Police to identify migrants, and the penalisation highlight the use of criminal law practices to regulate citizenship related offences. Procedural aspects have come to overlap for citizenship and criminal matters.

Through a combination of flawed procedure and arbitrary use of evidence law, they impose extraordinary consequences on those who are unable to navigate the complex tangle of bureaucracy and legal procedure. Given that most people who are brought before the FTs are from vulnerable socio-economic communities, the hurdles they face in the process are often insurmountable. FTs have made stateless criminals out of India’s own citizens without tangible proof of guilt. The system effectively ‘otherises’ and removes the offender from society, either through detention or deportation. This kind of societal removal is analogous to a criminal conviction, but without the presumption of innocence that the criminal justice system recognises and puts in place. 

Snippet: "Unlawful Activity", the 1967 UAPA, The Attorney General, and a "Ministry of Astrology"

India's primary anti-terror legislation, the Unlawful Activities Prevention Act 1967 ["UAPA"] continues to make headlines as a legislation reportedly used to stifle dissent and legitimate criticism of India's central government, even as the world grapples with the Coronavirus. This has, justifiably, prompted a rise in the conversations around the UAPA.

"Unlawful Activity"

A vast majority of these conversations about the UAPA focus on the provisions concerned with alleged "terrorist acts". But, originally, the UAPA was never designed to punish terrorism. Instead, it set out to create a new crime, of engaging in "Unlawful Activity". Section 2(f) of the UAPA as it originally stood [Section 2(o) today] defines this crime as follows:

"Unlawful activity", in relation to an individual or association, means any action ... 

(i)  which is intended, or otherwise supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory from the Union, or which incites any individual or group of individuals to bring about such cession or secession;

(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; [Emphasis supplied]

This is, by any stretch of imagination, a broadly worded definition. It is, I would argue, so broad as to take within its fold legitimate discussion and / or criticism of government policy, especially in connection with issues arising in border territories. This brings the definition of "Unlawful Activity" within the teeth of the constitutional guarantee to citizen's of a freedom of speech and expression. In a representative democracy where debates over government policy are constitutionally protected, how can a statute create crimes out of criticism?

The Joint Committee and the Attorney General

The seemingly anachronistic situation created by the UAPA generated heated debate within Parliament at the time. This was in no small means buttressed by the rise in power of regional parties, whose earlier espousal of secessionist agendas had in fact contributed to the government bringing in the UAPA. When the UAPA Bill was sent for examination to a Joint Parliamentary Committee [The report is available on the e-parliament library website], many members voiced their concern about the criminalisation of speech under this new law and the erosion of fundamental rights. 

To address any questions about the supposed unconstitutionality of the law, the government agreed for the Attorney General of the day, Mr. C.K. Daphtary, to depose as a witness before the Committee. Daphtary's endorsement of the UAPA before the Joint Committee was to become the cornerstone of the government's approach during the parliamentary debates over the UAPA. Any comment or suggestion about this law being unconstitutional would be swatted aside by invoking the Attorney General's by Home Minister Y.B. Chavan.

This, naturally, demands that we take a very close look at just what the Attorney General did and did not say when he appeared before the Committee as a witness on October 16, 1967. Three specific exchanges between Daphtary and the Committee, really stand out.

First, in his introductory remarks, Daphtary notes how he was "not called upon to express any opinion except the legal opinion one", and this opinion was that the law is "going as far as one can go." "These are drastic powers", the Attorney General acknowledged, and later on also made it clear that we must always assume that "those who are going to exercise those powers will do so honestly and properly. ... Whether that will be so or not, one cannot say." Later on, when B. Shankaranand noted that according to Daphtary the Bill is perfectly constitutional, the Attorney General quickly retorted: "Not 'perfectly' constitutional; I say, it is constitutional.

Second, and perhaps most engaging, was his reply to queries by P. Ramamurti. One specific exchange takes place as Ramamurti questions Daphtary's support of the Bill by referring to the Supreme Court's old decision in V.G. Row. Daphtary responds:

The outlook on fundamental rights and what is reasonable or proper protection has, as you are sure aware, gone through a series of changes in that particular court. There was a time in the beginning when the fundamental rights were quite firm. Then came a period when they were eroded and gradually Article 14 almost ceased to exist. Then again came a period when the fundamental rights were put up firmly and everything was properly tested. Perhaps we are again coming to a period when they will not be looked at as seriously as they used to be. ... Therefore the dicta of judgments do not carry us anywhere.

Third, and finally, at the end of this exchange itself, Daphtary expresses his lack of personal knowledge about the situation in various parts of the country that might justify the "drastic measures" of the law. Thus, he says, "I cannot go further than expressing my personal opinion." And this he does: "I think it is regrettable that the State has reached such a position that it is necessary to pass this legislation."

A "Ministry of Astrology" for Constitutional Questions

At one level, I am still astonished by the level of candour on display by Daphtary in his deposition before the Joint Committee.  Reading his replies, it becomes evident that his support for the UAPA was far from uncritical. In fact, it is almost tragic that the Home Minister somehow managed to use this deposition as the mainstay of his defence of any constitutional questions raised about the UAPA. After all, can it really be said that Daphtary defended the law? Daphtary merely said that a Court willing to look askance at fundamental rights questions might let the issues slide, which is not really a defence of any sort. 

As P. Ramamurti acerbically noted in his Minute of Dissent appended to the Joint Committee's Report, "What basis there is for this astrological forecast of the behaviour of the Supreme Court, he did not tell the Committee." If Parliament were to forsake the position of the law as it stood while considering the legality of any statutes and instead go by political forecasts on constitutional questions, Ramamurti notes, then "there must be a Ministry of Astrology in Government."

As history would have it, questions about the constitutionality of the UAPA provisions did not reach the Supreme Court once the law was passed in December of 1967, and so the astrological predictions of the Attorney General never got a chance to be tested.

[P.S.: Of course, if the conversations were to happen today, then the so-called "Ministry of Astrology" would also have to contend with an additional prediction besides that of a strong court or weak court taking up the case — that of an evasive one keeping it pending forever.]

Guest Post: Bail in Letters but not in Spirit — Karnataka High Court on Persons Accused under Foreigners Act, 1946

(This is a guest post by Mr. Basawa Prasad Kunale, Advocate)

The concept of bail emerges from the conflict between the police power to restrict the liberty of a person who is alleged to have committed a crime and the presumption of innocence in his favour. The State, in its anxiety to protect its subjects from the onslaught of criminals, has invested the police with powers of arrest and approaching the criminal courts with a prayer for keeping the accused in custody, for the purpose of keeping the accused present at the time of trial and to prevent the accused person from tampering with the evidence. However, it would be not only improper but also unjust to keep an accused person under custody of the State with the object of punishing him before the conclusion of the trial, this in fact defeats the entire purpose of the trial.

Therefore, while answering the question whether to or not to grant bail to a person, it is for the judges to balance the State’s power to restrict an individual’s liberty with the constitutional protection of personal liberty.In Indian bail jurisprudence it has been established that bail is a rule and jail is an exception. This has been recognised as a rule for not only against alleged heinous offences committed on other person but also in alleged serious offences against the State. Section 439 of CrPC along with several other provisions under special enactments entrusts power upon the High Court or Sessions Courts to grant bail, in order to recognise liberty of an individual from States authority. The principal rule to guide release on bail is to secure the presence of the applicant who seeks to be liberated, along with the principles established by various judicial precedents and guidelines, as summarised below, which are to be taken into consideration while exercising this power: 

1. The nature and gravity of the circumstances in which the offence is committed;
2. The position and the status of the accused with reference to the victim and the witnesses;
3. The likelihood of the accused fleeing from justice;
4. Possibility of tampering with evidence; and
5. Chances of repeating the offence.

In its recent decision, the Hon’ble Karnataka High Court, while deciding on the issue of grant of bail under Section 439 of CrPC, restricts the liberty of the accused, by going beyond the powers conferred the said provision. In the case the Petitioners approached the Court under Section 439 of CrPC, for being arrayed as accused under Section 14A and 14B of the Foreigners Act, Section 25 of the Indian Arms Act, 1959 and Section 34 of the Aadhaar Act, 2016.While deciding the petition, the Hon’ble Court in Para 51 of the judgment acknowledged that there exists no specific bar to grant bail under Section 439 of CrPC for persons accused under the special enactments governing foreigners, especially the Foreigners Act, 1949, unlike under section 37 of the NDPS Act and section 43D (5)of the UAPA, which permits bail only in limited circumstances. However, the Court was of the view that the persons accused under Foreigners Act cannot wander around the country freely, as if they are citizens, once the bail has been authorised by the Court as such an authorisation cannot be considered as license to move around the country. Therefore the Court being of the opinion that there were no specific guidelines in this context as to how accused persons under Foreigners Act, 1949 should be treated during the course of investigation, inquiry, trial, and after acquittal or conviction by the Courts, the Hon’ble Court laid down exhaustive 16 point guidelines [Para 112], concerning the manner of enquiry under the Foreigners Act, conditions of detention centres and of the inmates along with many others, for the Courts and the competent authorities to follow while dealing with persons facing proceedings under the Foreigners Act, 1946.

However, for the purpose of this article, we will look at guideline no. 4 laid down by the Court, which reads as follows:

(4) If for any reason the Court grants bail including anticipatory bail, in any criminal case where the offender is a foreign national, and the offence are under the Foreigners Act and/or also under any other Laws for the time being in force, and their Visa is cancelled or lapsed, or they have no Passport, or they are illegal migrants, then Courts shall specifically order to keep them in detention centres, unless the competent authority has passed any order under section 3(2) (a) to (f) of the Foreigners Act, 1946, or till further orders of the Court or till they are deported to their mother country.

Before going into the legality of this guideline, it is important to examine the relevant statutes governing the detention of the Foreigners. Section 3 of the Foreigners Act, 1946, empowers the Central Government to make Orders for the purpose of prohibition, regulation, or restriction of the entry of foreigners, into India, or their departure therefrom or their presence or continued presence therein in the manner provided under Section 3(2)of the said Act, including arrests and detention or restriction of movements.

In Para 66 of the judgment, the Court records that this power came to be delegated to State governments and Union Administrations under Article 253 of the Constitution through a notification issued in the year 1958, wherein now these authorities were entrusted with the power to restrict the movements, arrest and detention or confinement of Foreigners.

However, in order to exercise the power under section 3 of the Act, it is important to determine as to who is a foreigner. This determination of whether the person is a foreigner has to be done, in consonance with definition a foreigner under section 2 (a) of the Foreigners Act, 1946, which states that a person who is not a citizen of India is a foreigner and further in order to determine whether a person is a foreigner, the Tribunals are constituted for this purpose, under The Foreigners (Tribunal) Order, 1964. 

The said Order of 1964(except procedures for the State of Assam are different), empowers the Central Government or State Government or the Union Territory administration or the District Collector or the District Magistrate, to refer the question as to whether a person is not a foreigner within the meaning of Foreigners Act, 1946 to a Tribunal. The said Tribunal shall have all the powers of Civil Court while trying the suit under the Code of Civil Procedure and while exercising such power it shall give enough opportunity to the person whose Indian citizenship is in doubt before arriving at an opinion, by way of issuing notice, providing opportunities to produce evidence and hearing arguments, and then submitting its opinion to the officer or authority in the order of reference.This opinion of the Tribunal is of paramount importance, since this opinion, by way of determining if a person is foreigner, also determines the citizenship rights of a person. It is based on this opinion of the Tribunal that a person is foreigner that the competent authorities under Section 3 of the Act will take appropriate actions as laid down in Section 3(2) of the Act, including arrests and detention or restriction of movements of the said person.

This being the law of the land, let us come back to guideline no. 4 in question.We see that the Court presumes that every person who is alleged to have committed an offence under any special enactments governing foreigners or the under the Foreigners Act, is a foreigner, and by doing so, it denies such persons of entire procedural safeguards provided in the Foreigners (Tribunal) Order, 1964.

Right to approach under Section 439 are infructuous: As mentioned earlier the power to grant bail is with sole objective of recognising the liberty of persons from State’s authority over restricting it, however the said guideline makes this power entrusted upon the Courts under section 439 of CrPC infructuous, as in lieu of this guideline, if a person has been granted bail, he continuous to be detained in the detention centres established under Section 3(2) of the Foreigners Act, making it pointless for a person to approach the Courts for bail. Furthermore, it is important to note that there is no enactment which empowers Courts to keep a person in continuous detention even after bail has been granted, let alone Section 439 of CrPC.

Violation of “Procedure Established by Law”-Article 21 of the Constitution guarantees every person, irrespective of their nationality, right to life and liberty, except for procedure established by law. For the purpose of this article, the procedure established by law to detain persons under the Foreigners Act, is entirely authorised upon the Central Government, State Governments or to the Union Administrations. It is important to note that not even a quasi judicial adjudicating body, i.e. the Tribunal constituted under the Foreigners (Tribunal) Order, 1964, has the authority to detain a person if in its opinion such person is a foreigner. Such being the situation, the guideline under scrutiny, goes beyond the procedure established by law and continuous to detain the persons who has been granted bail and denies liberty to him without authority of law, thereby violating Article 21 of the Constitution.

The National Registry of Citizens, under the under the Citizenship Registration of Citizens Rules, 2003 has been severely criticised for not providing any criteria or details that would be necessary for entry into the said registry of citizens and instead leaves it to the whims and fancy of the local Taluk level officers to make such decisions.The appeal process within the rules, in case of exclusion from the registry, being mere procedural provision, does not provide any safeguards to the persons preferring appeal in the form of providing sufficient time period to prefer such appeal as well issuance of notice or issuance of such order of exclusion from the list. Further the said rules are also silent with regard to the status of persons who would be excluded from the registry, giving a free hand for the police authorities to register baseless FIR’s under the Foreigners Act against such persons. The victims in this entire process will be persons who are unable to make any kind of socially and economical influence, which would play an important role for entries in the registry of citizens and to escape the possible abuse of powers under the police authorities. Adding to all this, the guideline no. 4 under scrutiny will only be one more hurdle for this disadvantaged group, whereby now bail will only be in letters but never in spirit.

Guest Post: Silence and 'Pragmatism': Skirting the Bail Conditions in the UAPA

(This is a guest post by Ms. Nitika Khaitan, Advocate. The author thanks Jawahar Raja and Chinmay Kanojia for their help as always with locating UAPA orders; and Sanya Kumar and Megha Bahl for their incisive comments.)

The denial of bail to Safoora Zargar last week drew fresh attention to harsh conditions in the Unlawful Activities Prevention Act 1967, which make it exceedingly difficult to secure bail. Under S. 43D(5) of the Act, no person accused of certain UAPA offences can be released on bail if the court finds reasonable grounds to believe that the accusations against her are prima facie true. Amidst overly broad definitions of these offences, and a low prima facie threshold, how then have courts granted bail? Sometimes, by narrowly interpreting offences or holding that the evidence against the accused is contradictory. At other times, as is the focus of this post, by simply leaving out any mention of the Act or its mandate altogether.

In 2016, for instance, the Supreme Court granted bail to the Dalit activist Angela Sontakke, accused of being a member of the Communist Party of India (Maoist), which is banned as a terrorist organisation. The Bombay High Court had earlier held that her bail was barred by S. 43D(5), since she appeared to be an active member unlike some of her co-accused (who had thus been granted bail by a different High Court bench). While allowing Sontakke bail, the Supreme Court order records that she is charged with offences under Chapters IV and VI of the UAPA, which attract S. 43D(5). But the order doesn’t mention the section. It doesn’t even briefly refer to the evidence against her, let alone record a different prima facie finding from the High Court’s. It speaks merely of balancing the serious charges against her with the facts that she is a woman, has spent years in custody and has yet to see her trial begin.

This is far from the only order that reads as if S. 43D(5) doesn’t exist. In 2017, while granting bail to three Kabir Kala Manch activists accused in the same case as Sontakke, the SC doesn’t even mention the UAPA. Other orders mention just the section number. In the 2017 bail plea of Malegaon blast accused Lt. Col. Prasad Shrikant Purohit, his counsel contended that S. 43D(5) wouldn’t apply since the blast occurred before the amendment that enacted the section. The SC order holds that this plea must be considered at the time of trial and not now. Without excluding the application of S. 43D(5) though, the SC proceeds to effectively ignore it. (The judgment also, oddly, refers to the state as having “rights” to investigate, instead of calling it what it is, a power.)

The SC’s reasoning for granting him bail reads like an order under ordinary law. The SC refers to prima facie satisfaction in support of the charge as one of the factors to consider (true for regular bail), not as the factor that S. 43D(5) elevates above all else. The only other time the Court uses the phrase is in holding that there is a “prima facie case for release on bail,” decidedly not the finding it is mandated to return. Attempts to hunt for the missing reasoning elsewhere in the order fail. The SC does say that there are “variations” and “material contradictions” in chargesheets filed by different investigating agencies (this was also discussed in the Bombay HC order granting bail to another Malegaon blast accused, Pragya Singh Thakur). But before one can infer that this is what led the SC to believe a prima facie case wasn’t made out, the order promptly states that these contradictions too need “to be tested at the time of trial and this Court cannot pick or choose one version over the other.” Almost as if to overcompensate for its missing finding on the evidence, the order repeats thrice on the same page that “at the stage of granting bail, a detailed examination of the evidence” need not be undertaken. (The general proposition is correct, but as held by the SC in the context of another law imposing similar restrictions on bail, “The duty of the court at this stage [of bail] is not to weigh the evidence meticulously… However, while dealing with a special statute… the court may have to probe into the matter deeper”). The order ends by going beyond the usual caveats and emphasises that the grant of bail here “shall be no consideration for grant of bail to other accused persons in the case.”

In none of the cases above did the Court say it was using its extraordinary powers to grant bail where other courts, in light of S. 43D(5), would have been unable to. How do we read the Court’s silences in these orders? Explicitly engaging with S. 43D(5) of course has its pitfalls. As the Andhra Pradesh HC recognised, at the stage of bail, taking the view that the accusations against an accused are not true could dent the prosecution; while taking the opposite view may be akin to “pre-judging the charges.” But even if we allow for the possibility that the Court wanted to refrain from making any observations that would influence lower courts, to not even mention S. 43D(5) in an appeal from a HC that has rejected bail on these grounds goes too far. That this violates the Supreme Court’s own pronouncements is trite. See, for instance, its 2019 decision making clear that courts must apply their mind to the prima facie truth of the accusations. More importantly, while the SC’s orders above indicate an obvious unease with the years in custody that harsh bail conditions inflict on people, they also reflect an unwillingness to fix this unease with anything besides ad-hoc measures, falling far short of the jurisprudence a constitutional court could choose to build.

In the cases above, long years of incarceration played a key role in the Court’s reasoning in favour of bail—over five years for Sontakke, close to four for the Kabir Kala Manch activists and eight years and eight months for Purohit. (This same concern, and elision of the S. 43D(5) mandate, is evident in some High Court orders as well. A 2019 Bombay HC decision, for instance, partly engages with the lack of grounds to prima facie believe the allegations made for certain offences. But for other alleged UAPA offences, the HC simply states that they are punishable with merely two, seven and ten-year imprisonment terms, and the accused had already served nearly four years in jail.) In implicitly acknowledging the injustice of such pre-trial incarceration, while refraining from any systemic change, these SC orders mirror its earlier decisions in the context of other laws with onerous bail conditions.

In 1994, in the context of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, the SC noted that “to refuse bail on the one hand and to delay trial of cases on the other is clearly unfair and unreasonable” and “if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt.” But noting also that the constitutionality of similarly restrictive bail provisions in the Terrorist and Disruptive Activities (Prevention) Acts, 1985 and 1987 (TADA) had been upheld earlier that year, the Court asks itself, “What then is the remedy?” The Court passes a “one-time” order. It directs all undertrials charged with certain offences to be released on bail, if they’ve spent a certain number of years in custody. The Court says that given the percentage of acquittals under the Act, “we cannot be oblivious to the fact that many innocent persons may also be languishing in jails.” But nothing in the order of course was “intended to interfere” with the future grant of bail by lower courts, which would continue as restrictively as before and presumably also lead to many innocent persons languishing in jails till another one-time SC order.

In a similar order two years later in the context of TADA (Shaheen Welfare Association v. Union), the Court even more explicitly recognised that “when the release of undertrials is severely restricted as in the case of TADA” and a speedy trial is “not practical, release on bail… may, in some cases, be necessary to meet the requirements of Article 21.” Acknowledging that “many of the under-trials may be found to have completed the maximum punishment provided by law by being in jail without a trial,” the Court again offered a “pragmatic approach” / “one-time measure.” The Court divided TADA undertrials into different categories based on whether they were roped in for possession offences or overt acts directly attracting TADA sections, or by virtue of vicarious liability and conspiracy provisions; and directed release on bail on different conditions for each category. The Court recognised that it was overriding the ordinary operation of TADA by creating these classes but held that “while adopting a pragmatic and just approach, no one can dispute the fact that all of them cannot be dealt with by the same yardstick.”

What of pragmatism and justice post the one-time measure then? In Shaheen Welfare Assn., the Court recognised that stringent bail conditions “can be justified… on the presumption that the trial of the accused will take place without undue delay.” The Court had then focused on the inadequacy of Designated Courts set up to try TADA cases as the cause for this undue delay. But gross delay is of course pervasive, not exceptional. While upholding TADA’s constitutionality, the Court had also recognised that TADA was often unscrupulously invoked merely to deny bail. It stopped, however, at terming this sheer “misuse and abuse” and merely exhorting prosecutors and courts to do their job better. But what of the extensive material to show that misuse and abuse are woven into the provisions of extraordinary laws? Particularly in the context of the current repository of most of TADA’s provisions, the UAPA, under which the ‘independent’ authority set up to sanction prosecution is appointed by the executive itself.

Despite repeatedly being confronted with the reality that onerous bail conditions equal years of incarceration without guilt, courts have more often than not resorted to elision and ad-hocism. In a series of decisions from November 2019, the Punjab and Haryana High Court called this out. These decisions were delivered in the context of harsh bail provisions for some offences in the Companies Act, 2013, which prohibit release on bail unless the court is satisfied of reasonable grounds to believe that the accused is “not guilty” of the alleged offence amidst other conditions. The High Court orders state that there is an “inconvenient question, which has not been shown… to have been answered by any court so far, including the Hon’ble Supreme Court. The question is - for how long an accused can be kept in custody on the basis of non-fulfillment” of restrictive bail conditions? The HC order decries “unfortunate situations where a court may not even find the moral courage or the legal sanctity to tell to the accused that he shall have to wait in custody till conclusion of the trial, despite and in face of the legislative policy contained in provisions of Section 436A of the Cr.P.C.” S. 436A of the CrPC mandates the release of under-trial prisoners if they have been incarcerated for half the maximum term of imprisonment for their alleged offence. S. 436A itself carves out an exception for offences punishable with death, but non-obstante clauses in special laws like the UAPA exclude the benefit of S. 436A even for offences punishable with imprisonment for three years. Despite such non-obstante clauses, the HC emphasises that years of custody without trial “cannot be used to curtail the liberty of an accused in violation of Article 21” and poses more inconvenient questions—“In such a situation the court would do substantial justice; or would stick to the [bail] conditions…Even if the courts are to stick to such condition; then how much injustice to the accused would be sufficient to off-set or to balance” the conditions? The HC goes on to hold that unless these questions are “categorically answered to say that till the conclusion of the trial such a person cannot be released on bail,” the onerous conditions cannot be held to be mandatory. (Also see the same bench’s 2018 decision with respect to NDPS cases).

In the context of the UAPA as well, certain High Courts reflect a more sustained engagement with these questions. In a 2014 decision, the Andhra Pradesh HC lays out, colourfully, the cautious and delicate approach needed with provisions like S. 43D(5), comparing it to “the care which a cat is expected [to take] while carrying the kitten in its mouth from one place to another.” The order dilates for several paragraphs on motivated prosecutions; emphasises that “an accused cannot be equated to a convict, even before the trial is conducted;” and goes on to lay out guidelines for courts to appropriately form the prima facie opinion required by S. 43D(5), while taking concerns of liberty seriously.

Such guidelines ultimately may not make too much of a difference—the inherently low threshold of S. 43D(5) no doubt ties the hands of lower courts. Till more authoritative pronouncements on these bail conditions, thus, the road ahead looks bleak. But as I’ve argued in the context of a different set of provisions under the UAPA, judicial logics often defer to state ones with anti-terror laws, accepting the need for extraordinary measures to combat ‘extraordinary’ threats, and making any such authoritative pronouncements unlikely. The history of personal liberty, as a judge from another time had said, is largely the history of insistence upon procedure. Not so with S. 43D(5), where liberty has oft been secured by ignoring it.

What's in a Name? A Lot, Especially if that Name is "Anti-National"

Forgive the plain title as this writer is at his wits' end, exhausted, after a week-long wild goose chase. The object of my search? The meaning of "Anti National" in context of the law.

The immediate cause behind this exertion was set of the guidelines issued by the Delhi High Court's High Powered Committee on how jail authorities should exercise their discretion towards releasing inmates to manage the risks posed by Covid-19 [The most recent one is here]. After detailing what kinds of prisoner categories should be considered favourably for release, the Committee listed categories of undertrial prisoners — persons who are not convicted of crimes and theoretically still presumed innocent — which should not be considered for release. One such category, is

"Cases investigated by CBI/ED/NIA/Special Cell of Delhi Police, Crime Branch, SFIO, Terror related Cases, Riot cases, cases under Anti-National Activities and Unlawful Activities (Prevention) Act etc." [emphasis mine]

This left me perplexed as to what the Committee might have meant by "Anti-National" activity, since the guidelines themselves don't define the term. The "under" in the portion I extracted has got to be a typo, as there is no statute under which "anti-national activities" are proscribed. Even so, does that mean that one gathers the meaning of this phrase from its context, i.e. is anti-national activity a broad term that includes (i) riot cases, (ii) terror related cases, and (iii) cases under the UAPA? But then what about the innocuous "etc." at the end of that category? Also, considering that the purpose of the Committee is to give clear guidance on how to exercise discretion, does it help to use such undefined phrases which give no guidance and leave the jail authorities to their own devices?

Having found no satisfactory answers within the Guidelines, I decided to venture look elsewhere.

Statutes / Constitution

At one point in time the term "Anti-National" was part of the Indian Constitution itself: Article 31-D was added during the Emergency by the 42nd Amendment, to basically render laws for made for "prevention or prohibition of anti-national activities" exempt from judicial review under Articles 14, 19 or 31 of the Constitution. It had a long explanation on what the term meant:

... (b) 'anti-national activity', in relation to an individual or association, means any action taken by such individual or association — 

(i) which is intended, or which supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India or which incites any individual or association to bring about such cession or secession;

(ii) which disclaims, questions, threatens, disrupts or is intended to threaten or disrupt the sovereignty and integrity of India or the security of the State or the unity of the nation;

(iii) which is intended, or which is part of a scheme which is intended, to overthrow by force the Government as by law established;

(iv) which is intended, or which is part of a scheme which is intended, to create internal disturbance or the disruption of public services;

(v) which is intended, or which is part of a scheme which is intended, to threaten or disrupt harmony between different religious, racial, language or regional groups or cases or communities; ... 

Never before or after this brief interlude has the Constitution, or any statute for that matter, seen such an extensive engagement with the phrase. That does not mean that legislatures have entirely abandoned using the term either. Below is a short, non-exhaustive, list of statutes (both state and central) where we can still find reference to "Anti-National":

1. Arms Act, 1959 — The original Statement of Objects and Reasons [SOR] for the 1959 legislation referred to "anti-social or anti-national elements" using weapons and bombs, and the SOR for the 1988 amendments to the Act also refer to challenges posed by "terrorist and anti national elements"; 
2. National Security Act, 1980 — The SOR of what is today's the primary central statute on preventive detention referred to the "current crisis" posed by "anti social and anti national elements including secessionist, communal, and pro-caste elements" which "pose a grave threat ... and sometimes even hold society to ransom.";
3. Goa, Daman and Diu School Education Act, 1984 — Section 12 states that employees are to be governed by a code of conduct, and Section 12(2)(b) prescribes that the "Code shall prescribe, inter alia that no employee shall propagate  anti-national, communal, caste, or sectarian outlook.";
4. Cable Television Networks (Regulation) Act, 1995 — The SOR states that subscribers and others are unaware of their rights and duties in respect of "protection of subscribers from anti-national broadcasts from sources inimical to our national interest";
5. Uttarakhand Police Act, 2007 — Section 2(i) defines "internal security" as meaning "preservation of sovereignty and integrity of the state from disruptive and anti-national forces";
6. Sikkim Police Act, 2008 — Section 2(g) defines "internal security" in language identical to the 2007 Uttarakhand Act; [Note: similar clauses can be found in other recent police acts as well]
7. U.P. Fighters of Democracy Act, 2016 — The Act creates a framework for paying honour money to those who stood up against the Emergency. Section 5 of this statute specifies conditions for cancelling the payment of honour money, and one condition in Section 5(i) is the "participation in any crime of moral turpitude and in any anti-national activity" (Oh, the irony);
8. M.P. Loktantra Senani Samman Adhiniyam 2018 — The Madhya Pradesh version of the same law, and Section 9(1)(a) provides for an identical condition as the Uttar Pradesh law; [Note: similar clauses can be found in other state laws passed under Article 348(3) of the Constitution]
9. U.P. Private Universities Act, 2019 — Section 3 of the statute lays down conditions for establishing a university, and Section 3(2)(r) stipulates that the university "to undertake neither to be involved nor to permit anyone to cause or promote anti national activities inside the campus or under the name of the university"  
10. Besides these categories, there is also subordinate legislation passed through notifications where engaging in "Anti-National" acts deprives persons of some benefits or allows for prohibiting activity. This includes: (i) Government procedures on giving advertisements to newspapers etc., (ii) Service Rules for public servants, (iii) CBFC guidelines on censorship, (iv) Cancelling allotments of land under Government schemes, and (iv) As basis to issue Look-Out Circulars against persons. 

Courts and "Anti-National" Conduct  

I also scanned cases spanning 1950 to 2020 from India's Supreme Court, the many High Courts, and some Central Tribunals, where the term was used. This exercise showed that courts have commonly used "Anti-National" as an adjective to describe a wide array of conduct, such as: 

1. Espionage / Spying;
2. Conduct prosecuted under anti-terror laws such as TADA / UAPA;
3. Making Secessionist / Communal Speeches;
4. Activity such as food adulteration, illicit drug trade, making / handling counterfeit currency, corruption, smuggling, etc. punishable under various laws or legal grounds for preventive detention. [Note: A vast majority of cases seemed to fall within this category]

Here, courts not only called such activity "Anti National", but often referred to it as "anti-social and anti-national" conduct. 

The other insight gained from analysing cases was seeing how executive authorities used the term "Anti National" while exercising their discretion. Thus, I came across government school contracts where the employee was barred from "anti national / anti government" activity. But most interesting in this regard was the context of preventive detention orders, which routinely carried the phrase. This was especially so in detentions ordered under the Jammu & Kashmir Public Safety Act, 1978. Curiously, I only found one case which pointed out that engaging in "Anti National" acts was not one of the possible grounds enlisted in the statute authorising preventive detention [Mohd. Saleem Wani v. State, 2010 J&K HC]. 

It was mildly disconcerting that from the large sample size that I played with — all cases between 1950 to 2020 — I found only four cases where courts had offered any semblance of discussion on what this vague idea of "Anti National" conduct might entail. Three of these are:

1. In K.V. Subbarao [AIR 1967 AP 202], the Andhra Pradesh High Court was considering the legality of a detention ordered under the Defence of India Rules, 1961, and the detention order stated that the activities of the Petitioner were "anti-national". Refuting the contention of the Petitioner that this was a vague, undefined phrase, that found no mention in the statute and rules and thus could not be the basis of a detention order, the Court held that "Anti-National Activity" had a wide scope and covered all kinds of activities for which detention could be ordered under the law, viz. acts prejudicial to the maintenance of public order, India's relations with foreign powers, maintenance of supplies, conduct of military operations, and the defence of India. 
2. In Gurkirpal Singh [(1990) 97 PLR 102], the Punjab High Court differentiated between political activity from "anti-national activity" by holding that only the latter could be basis to refuse appointment to a probationer [Here, it was alleged that the appellant was keeping contacts with extremist elements].  
3. In S. Thirumalaiappan [2011, Madras HC], the Madras High Court explained that the phrase "anti national activities" which came in Rule 40 of the Tamil Nadu Pension Rules, 1978 ["anti national activities such as espionage, sabotage, and the like"] as a valid basis for denying compassionate allowance, included a public servant found committing crimes such as cheating and forgery.

The fourth, and the most comprehensive discussion, comes in Priya Parameswaran Pillai [2015, Delhi]. Here, a Look-Out Circular had been opened against the Petitioner which barred her from leaving India. One of the purported reasons was her engagement in "Anti-National" activities, which according to the government was her intention of talking about matters of Indian state policy on before a committee of British parliamentarians, which had the "potentiality of degrading the image of India in the eyes of foreign nations, leading to a regression in the country's economic activities and endeavours...".

The basis for executive power was a clause 8(j) in the official memorandum, which allowed issuing a Look Out Circular "In exceptional cases, ... without complete parameters and/or case details against CI suspects, terrorists, anti-national elements etc. in larger national interest…." (emphasis mine). The Court acknowledged the inherent vagueness in the phrase "Anti-National":

Pertinently, the word anti-national does not find a place in most dictionaries; it is in effect a combination of two words. If one were to deconstruct the meaning of the word anti-national, one would perhaps have to look to the meaning of the word, “Nationalism”. The nearest equivalent to the word ‘Nationalism’ would be patriotism. Patriotism as a concept would be linked to nationhood. Nationhood has several attributes which are, inter alia, inextricably connected with symbols, such as: the National Flag; the National Anthem; the National Song; and perhaps, the common history, culture, tradition and heritage that people of an organized State share amongst themselves.

In respect of each of these attributes of nationhood, there may be disparate views amongst persons who form the nation. The diversity of views may relate to, not only, the static symbols, such as, the National Flag and National anthem, etc. but may also pertain to the tradition and heritage of the Nation and the manner in which they are to be taken forward. Contrarian views held by a section of people on these aspects cannot be used to describe such section or class of people as anti-national. Belligerence of views on nationalism can often lead to jingoism. There is a fine but distinct line dividing the two. Either way, views held, by any section or class of people, by itself, cannot be characterized as anti-national activities. [emphasis mine]

The Court acknowledged that this inherent vagueness had the potential to confer arbitrary discretion upon the executive which could label any activity as "anti-national" based on the subjective views of certain officers. Considering that the term was also notably absent from the enumerated list of valid grounds to restrict the freedom of movement under Article 19(2). Accordingly, to render it legal, the Court held that the meaning of anti-national must be gleaned from the rest of the clause, and thus must refer to activities such as terrorism, or counter-intelligence. 

Taking Out "Anti-National" and Restoring the Law's Legitimacy

The 42nd Amendment is considered to be the greatest frontal assault on the character of India's democracy and its Constitution. Article 31-D with its constitutional cloak of safety for statutes condemning the anti-national was an integral part of that dastardly amendment. While it may no longer be more than a footnote within the constitutional text itself, the review of statutes confirmed that the concept continues to capture the imagination of our legislatures.  

The list of statutes and subordinate legislation within which the notion of anti-national activity provided here should provoke alarm in any right-minded person to whom arbitrary executive power causes concern. What that indicative list shows is that an undefined category of "Anti-National Activity" is being used across various contexts such as criminal laws, labour laws, and social welfare laws, as a basis to confer discretionary powers upon executive officers. Exercising these powers entails arbitrarily labelling conduct with extremely pejorative connotations and tarnishing a person's reputation. Not to mention the arbitrary interference in the enjoyment of basic freedoms, and a potential to bring about life-changing consequences by stopping welfare benefits, terminating employment, or causing incarceration.

That courts have uncritically bandied about this phrase in decisions (with the honorary exception of one case) is even more alarming. It might be alright for executive authorities to use high-pitched phrases to make arguments, but it is not alright for courts to reduce a phrase with such obvious taint as an ordinary adjective to describe a garden-variety of conduct. Using vague ideas to justify conclusions means that the arbitrariness of executive officers is transplanted on to the courts. What this leads to is a situation where a Single Judge of the Delhi High Court recognises the vagueness of the "anti-national" in Priya Pillai and the potential for arbitrary discretion that it entailed. Yet, just a few months later in March 2016, a different Single Judge of the same Court passed orders in Kanhaiya Kumar's bail petition [Discussed on the blog], extensively used the same vague phrase throughout the order, and even made it a condition for granting Kumar bail that he take all steps to "control anti-national activities in the [JNU] campus". Words fail me.

A review of the decisions and statutes confirms that far from it being imperative to the functioning of our legal system, the category of "anti-national" is almost entirely unnecessary and frivolous. As identified by the Delhi High Court in Priya Pillai, it is nowhere mentioned in the enumerated grounds for restricting the basic freedoms, and can only be made sense of by being fit into one of those phrases. If that be so, what is the point of persisting with the phrase and inflicting persons with its horrible taint which they carry for years in our system of delayed justice? The value addition is extremely minimal. The damage done to the legitimacy of the law and the ideals of the Constitution, is incalculable.    

Which brings me back to the Delhi High Court's High Powered Committee. When the guideline already refused to extend temporary mercy to imprisoned persons who stand accused in riots cases, corruption cases, cases under anti-terror laws, drug cases, corruption cases, and money-laundering cases, what was left to be covered by way of this amorphous category of "Anti-National Activities"? Nothing. So why not bunk it in the next revision, and restore some bit of the law's legitimacy in the process.

Guest Post: Section 29 POCSO Act — From Guilty Presumptions to Proof of Guilt

(This is a guest post by Angad Kamath, a final year law student at NALSAR University of Law)

Presumption literally means “taking as true without examination or proof”. In Kumar Exports v. Sharma Exports (2009 2 SCC 513), the Supreme Court referred to presumption as "devices by use of which courts are enabled and entitled to pronounce on an issue notwithstanding that there is no evidence or insufficient evidence." In a lawyer’s dictionary, ‘presumption’ can have several meanings – each different from the other. The term is most commonly associated with statutory provisions that require a certain fact to be ‘presumed’ upon proof of other sets of facts – this is also known as a derivative presumption. It can also be used to allocate the burden of proof; the presumption of innocence, in this sense, can be expressed as the right of the accused to shift the onus to prove her guilt on the prosecution. This form of a presumption is described as a foundational presumption; a proposition that the court must initially accept without proof of any fact.

In this piece, I wish to explore the nature of the presumptive clause found in section 29 of the Protection of Children from Sexual Offences Act 2012 [POCSO]. I argue that Courts have failed to look beyond the commonly associated form of presumption, i.e., the derivative presumption in its interpretation of section 29. I further argue that the non-literal interpretation adopted by some courts has rendered the presumptive clause meaningless, effectively reducing it to a standard of proof clause.

Let's begin by constructing a general presumptive clause, giving it the framework of a derivative presumption.

Section XYZ – “If facts A, B, C are proved, then the court shall presume fact D unless the contrary is proved”. Examples of this type of presumptions can be found in section 139 of the Negotiable Instruments Act 1881 [NI Act], section 113B and 114A of the Indian Evidence Act 1872, and section 35 of the Narcotic Drugs and Psychotropic Substances Act 1985.

[General framework formulae: proof of foundational facts occasions separate fact to be presumed – fact presumed can be rebutted]

To further simplify, let us take the example of section 139 NI Act-

“139. Presumption in favour of holder - It shall be presumed, unless is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability."

A bare perusal of the section 139 NI Act would suggest that before the presumption (u/s139) becomes available to the complainant, he must show that he is holding a cheque which is ‘of the nature referred to in section 138’. Hence, the facts to be proved (basic or foundational facts) contained in section 138 are extracted below:

"... Provided that nothing contained in this Section shall apply unless: —

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may, makes a demand for the payment of the said amount of money by giving a notice in writing, to be drawer of the cheque, (within thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice."

Now, a conjoint reading of sections 138 and 139 would make it sufficiently clear that only upon proof of facts provided in clause (a), (b), (c) of s. 138, would the benefit of the presumption (that the cheque was issued in ‘discharge of a whole or in part of any debt or any other liability’) accrue to the complainant.

It can be noticed here that the facts proved and the fact presumed is independent and separate from one another, in accordance with our general framework set out above. The fact presumed is an inference drawn upon proof of independent and separate facts. The presumed fact can be rebutted by leading evidence to the contrary.

Now let’s proceed to examine the framework of the presumptive clause provided for in section 29 of the POCSO Act and compare it with our general presumptive clause:

Section 29 – Presumption as to certain offence

“Where a person is prosecuted for committing or abetting or attenuating 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”

Upon a strict literal interpretation, the presumptive clause in s. 29 can be deconstructed as follows –

• Fact to be established/proved - person prosecuted for committing any offence under section 3,5,7,9
• Fact to be presumed - person has committed the said offences.

Put otherwise, if any person were to be ‘prosecuted’ for any offence under sections 3,5,7,9, then the Special Court shall mandatorily raise the presumption of such person having committed the offence unless any evidence to rebut the presumption can be led. 

But courts have taken extremely divergent stands on the interpretation of the word ‘prosecuted’, which falls under the foundational facts category in our general framework.

A division bench of the Calcutta High Court in a recent decision (27 Feb,2020) held as follows —

“The words appearing in section 29 of the POCSO Act "Where a person is prosecuted" embraces a complete exercise on the part of the prosecution to prove the prime allegation set out in F.I.R. corresponding to the charge framed against the accused person during the course of trial, which is of course rebuttable subject to developing a strong case, contrary to that established by prosecution during cross-examination by defence.”

Similarly, the Bombay High Court while examining the effect of the presumption under section 29 POCSO has held —

“It cannot be disputed that no presumption is absolute and every presumption is rebuttable. It cannot be countenanced that the presumption under Section 29 of the POCSO Act is absolute. It would come into operation only when the prosecution is first able to establish facts that would form the foundation for the presumption under Section 29 of the POCSO Act to operate. Otherwise, all that the prosecution would be required to do is to 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 gospel truth and further that the entire burden would be on the accused to prove to the contrary. Such a position of law or interpretation of the presumption under Section 29 of the POCSO Act cannot be accepted as it would clearly violate the constitutional mandate that no person shall be deprived of liberty except in accordance with procedure established by law.” (emphasis supplied)

The position taken by the Calcutta HC and Bombay HC has been similarly adopted by the Madhya Pradesh High Court and Kerala High Court (See, Joy v State of Kerala (2019) SCC Online Ker 783)

On the contrary, in a bail petition filed for offences under POCSO and IPC, the Karnataka High Court, in a bail application, appears to have found favour with the literal interpretation of s. 29 presumptive clause. While denying bail to the accused, the court held as follows — 

“The POCSO Act came into existence in the year 2012. In order to protect children provision has been made under Section 29 of the Act that if once charge sheet is filed and the allegations are available, further the victim statement is recorded, under this factum the Court has to infer the said act has happened by drawing initial presumption. That has to be rebutted only during the course of full dressed trial.”

According to this interpretation, the presumption of guilt is to inferred once the charge-sheet is filed and victim’s statement is recorded, which essentially means, the presumption is raised at a pre-trial stage.

In State v. Tej Kumar @ Tinku the Special Court for POCSO cases (sitting in Delhi) was addressed the following arguments, inter alia, on behalf of the accused -

“ ... that presumption also lies in favour of prosecution in different statues like under Negotiable Instruments Act, NDPS Act, Indian Evidence Act, Prevention of Corruption Act but by the mere fact that some presumption in provided in the statute, complainant/prosecution can not be exonerated from their liability. Rather, it is well settled law that to draw a presumption in favour of complainant under Negotiable Instrument Act, complainant has to prove certain facts.”

Upon a detailed comparison of the presumptive clause found in section 29 of POCSO Act and section 138 NI Act, the court, in line with the Karnataka High Court’s strict literal interpretation concluded as follows –

“But, presumption under Section 29 of the POCSO Act is not similar to the presumption as under Section 139 of NI Act ... To draw a presumption in favour of prosecution, prosecution has to establish that accused is prosecuted for committing or abating (sic) or attempting to commit any of the offences which are mentioned:-(i). under Section 3 of the Act i.e. Penetrative Sexual Assault.(ii). under Section 5 of the Act i.e. Aggravated Penetrative Sexual Assault.(ii). under Section 7 of the Act i.e. Sexual Assault.(iv). under Section 9 of the Act i.e. Aggravated Sexual Assault. Once prosecution is succeeded to establish the aforesaid pre-requisite condition, Special Court is bound to draw a presumption in favour of the prosecution that the said person i.e. accused has committed or abetted or attempted to commit the offence as the case may be unless the contrary is proved.Bare perusal of Section 29 of the Act reveals that the initially burden is upon the accused to show that he was not involved in the said case and once he is succeeded to raise a doubt over a prosecution case or to show his innocence by preponderance of probabilities, onus will be shifted upon the prosecution to prove the guilt of accused.”

If one takes a closer look at the presumptive clause under section 29, the requirement of foundational facts to be proved is conspicuous by its absence. As a corollary, it can be concluded that the presumptive clause under section 29 does not accurately fit in the framework of our general presumptive clause. The absence of clear and discernible legislative instruction on this aspect has led some courts to observe that mere prosecution is sufficient for raising the presumption, while others have opined that the literal and restrictive interpretation may render the clause constitutionally suspect. In order to avoid a potential constitutional challenge, some courts have read in the element of foundational facts having to be proved at trial for the presumption to come alive. In this way, courts have proceeded to interpret the textually different presumptive clause under the POCSO Act in the same manner as the general presumptive clauses found in the NI Act, Evidence Act, etc.

By reference to the cases surveyed above, there appears to be a clear conflict in the interpretation of s. 29 POCSO between different courts as regards the following issues –

1. At what stage does the presumption of guilt embedded in section 29 operate? Does it operate from the commencement of criminal prosecution (i.e. at the time of filing charge-sheet or filing complaint before a magistrate) itself or is it confined only to the trial?
2. What are the foundational facts, if any, that are to be proved for the presumption to kick in and reverse burden to apply?

The answer to issue 1 lies in finding the answer to issue 2 – i.e., we must, firstly, identify the foundational facts, if any, which ought to be proved for the presumed fact of guilt to be inferred. I use the words ‘if any’ consciously because the legislature might have preferred to incorporate a foundational presumption of guilt clause (think of the presumption of innocence – it does not require any facts to be proved for it to operate) as opposed to a derivative presumption (the general presumptive framework captured above is an example of a derivative presumption) that we so commonly find in various statutes. [I am not examining the constitutional validity of the literal interpretation in this piece.]

If the trigger for presumption lies in nothing but ‘mere prosecution’ (as literally interpreted by the Karnataka High Court and Delhi District Court), then the presumption of guilt may have a strong bearing on outcome of bail applications filed before the trial stage, apart from other serious consequences at the trial. The serious difficulty of obtaining bail in POCSO matters may just translate to impossibility if presumption arose upon mere prosecution.

With this background, let us grapple with issue 2 — In the case extracts cited above, it can be noticed that the courts having avoided the literal interpretation route have some commonality in their interpretation of section 29 presumptive clause. I have culled out the common features of their interpretive observations below –

• That the prosecution would have to mandatorily bring on record the facts which form the basis of presumption.
• Upon having brought the facts on record, the prosecution must proceed to prove the facts
• Having proved the facts forming the basis of presumption, the presumption is triggered and the burden to reverse the said presumption shifts upon the accused.

In summary, it can be concluded that initial burden has to be discharged by the prosecution, which can be rebutted by accused by adducing evidence to the contrary.

As observed earlier, in their attempt to save it from a constitutional challenge, courts have resorted to interpreting the unique presumptive clause found in section 29 in the same manner in which derivative presumptions are generally interpreted. No doubt, this interpretation holds the field when it comes to the reading of derivative presumptions (where X fact is to be inferred upon proof of Y fact). But before we apply it to section 29, we must be sure of whether or not the said section is of the nature of a derivative presumption or a foundational presumption (like the presumption of innocence), which has still not been authoritatively pronounced by any court, let alone the Supreme Court. Even if we were to assume for the sake of argument that section 29 is a derivative presumption, the courts have so far failed to articulate the finer details of the foundational facts that need to be proved: What constitutes the specific foundational facts, which if proved, will lead to an inference of guilt?

Generally, most courts have held that the trigger for presumption lies in proof ‘of the primary facts constituting the offence’. On the question of standard of proof, which needs to be met by the prosecution, a division bench of the Calcutta HC in Subrata Biswas v. State of West Bengal [(2019) SCC Online Calcutta 1815] has observed –

“A proper interpretation of the said provision in a case where the person is prosecuted under Section 5 and 9 of the Act (as in the present case) the prosecution is absolved of the responsibility of proving its case beyond reasonable doubt. On the contrary, it is only required to lead evidence to establish the ingredients of the offence on a preponderance of probability.” (emphasis supplied)

With this context, let us now consider if interpretation given to section 29 presumptive clause fits the general notion of a derivative presumption clause.

Three things are now clear. A) That the prosecution will have to discharge the initial burden of proving the foundational facts; B) Foundational facts in the POCSO context are the ingredients of the offence found in section. 3,5,7,9; C) The standard of proof to discharge onus is a mere preponderance of probabilities and not the usual beyond reasonable doubt standard.

Applying this logic, one would realise that if the prosecution is required to prove all the primary facts of the case, then why would a presumptive clause be provided by the legislature in the first place? Generally, if a particular offence has three ingredients to be satisfied – say, X, Y, and Z, a derivative presumption clause would require the prosecution to prove X and Y (foundational facts) upon which the fact Z would be presumed. The function of a derivative presumptive clause, in this manner, is to ‘give the prosecution a very helpful shortcut to proof of the presumed fact’.

We can now compare this with the earlier example of section 139 the NI Act. The complainant is not required to prove the factum of the cheque having been received in discharge of debt or liability if he can establish the foundational facts [Keep in mind that receipt of cheque in discharge of debt is a key element for conviction under s. 138 NI Act]. The burden then shifts on the accused-defendant to rebut the said presumption by leading evidence to the contrary.

Coming back to section 29, the presumptive clause will be rendered meaningless if the prosecution is required to prove of all primary facts of the offence, although to a lesser standard of proof.

What this effectively means is that the courts, in their attempt to save section 29 from a potential constitutional challenge, have read it in such a way that the spirit and underlying essence of the presumptive clause is completely lost. Through its interpretation, some courts have given it an altogether new meaning; the title — ‘presumption as to certain offence’ — has become nothing but a misnomer. Far from being a presumption clause, its functional purpose has been reduced by some to a lowering of the standard of proof required from beyond reasonable doubt to the preponderance of probabilities standard.