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.

Some Thoughts on the Ordinance to Protect Health Care Workers

On 22.04.2020, Ordinance No. 5 of 2020 was passed to amend the Epidemic Diseases Act, 1897. It was a response to the most recent pleas by medical professionals for greater legal protection against physical attacks. I say most recent because this issue has been raised on many a prior occasion, but it only seems to have assumed critical importance for the Union Government now (and saw the results within one day) as doctors threatened not to go to work in the midst of a pandemic.  

Attacking doctors for doing their job is unacceptable and the Ordinance certainly sends out a strong message to anyone who might do so. After all, while regular offences punishable under the Epidemic Diseases Act only attracted punishments of up to six months (at best), the Ordinance has added new offences which carry a jail term of up to five years for standard cases and up to seven years for cases with grievous hurt. There is also a stiff fine and the obligation to pay double the cost of any property damage suffered by the health workers. Surely, anyone would think twice before getting violent with doctors now.

A Temporary Solution

But, before we start high-fiving ourselves on this great new law, let's give it a more careful reading. For starters, this is not a permanent answer to the problem of violence against doctors. The Ordinance will only help doctors if they are working in times of an "Epidemic" as declared under the Epidemic Diseases Act. But, as has been mentioned above, the problem of violence against doctors is one that is not restricted to the extraordinary times we find ourselves in. 

Thus, what we actually have is a very temporary solution to what is a serious and lasting problem. And this temporary solution will become a bigger problem the moment states begin to declare that the Epidemic Diseases Act will no longer be applicable. Then, we will have a strange scenario in which the doctors in some areas will have better "protections" than others.   

The Problem with Criminalising

The fact that doctors and healthcare professionals have been the target of violence across various parts of India is a problem. But passing a law that makes such violence punishable with extremely harsh jail terms and monetary fines is hardly the answer. That healthcare professionals in India have become a soft target for violence suggests many underlying issues. It could reflect a declining trust in doctors. Or even an extreme reaction to doctors' perceived lack of respect for patients, who could be paying through their noses for medical services, and may thus be placed in an already tense situation, both emotionally and financially. 

In the context of Covid-19, the aggressive physical reactions could very well be the consequence of the disinformation that surrounds the disease and the containment measures being adopted to tackle the same. Imagine if you have just got back home after an arduous journey and have, potentially, lost your job because of the lockdown that has forced everyone indoors. You return to a setting where everyone can't stop talking about this virus, but nobody really knows what it does, or what happens to those who are found to be infected. There is no dissemination of verified information about what a quarantine means, or what the conditions of containment buildings are like. Now, if a team of persons flanked by the police come around to "test" you, is it wrong for an individual to try and avoid being tested? 

Criminalising conduct certainly sends a message. But it is a horrific answer to solve a problem that is not entirely of an individual's own making. It might quell incidents of violence against doctors, but it will not help address the mentality which is the cause of such a response. Doing something about the underlying causes would require much more effort than what it takes to simply sign off on a new law. For starters, it would require spending a lot of money on an active information campaign (something that is fairly achievable). In addition to this, it would require a governance of transparency that is open to questions, helps debunk fake news and, ultimately, forces the government to treat its citizens better (perhaps not so achievable given how the Union Government has managed the lockdown so far).  

The Problem with This Manner of Criminalising

Alas, what we are always left with is a law, which brings me to the provisions of the Ordinance. 

The new substantive offence itself is not very problematic. Section 3(2) punishes committing or abetting an "act of violence" against a healthcare service professional. The term "act of violence" goes beyond mere physical attacks and also covers harassment, and "healthcare service professional" goes beyond the medical professionals to all persons empowered under the Epidemic Act to take measures. Where the violence is of the level of causing "grievous hurt" as defined under Section 320 of the Indian Penal Code, Section 3(3) prescribes a harsher punishment. 

I will not speak here about the broad discretion on sentencing conferred by the Ordinance, nor the expropriation clause inserted to threaten individuals with seizure of their houses. Instead, my focus is purely on the problems posed by the procedure prescribed for investigating and prosecuting this new offence. 

Of course, such cases are made cognizable and non-bailable, i.e., the police can arrest persons without warrant, and bail is not a matter of right for them. Such powers are too normalised now to raise eyebrows. But, the same cannot be said about Sections 3C and 3D, both of which create presumptions about the illegal conduct in a manner almost entirely ignorant of basic criminal law and procedure.  

Section 3C

Section 3C requires that the court "shall presume" that a person committed the offence in a prosecution brought under Section 3(3) [grievous hurt caused by an act of violence committed against a healthcare service professional]. Yes, this is similar to Section 29 of the Protection of Children from Sexual Offences Act, 2012. It is also similar to the law that Maharashtra had introduced criminalising the possession of beef. But the problem is that in both of these examples (and others), such blanket clauses which effectively shift the entire burden of proving a crime onto the accused have been held unconstitutional. 

Instead, the prosecution has been required to prove certain foundational facts, such as whether or not grievous hurt was actually caused by the accused, after which the accused is required to prove her innocence [discussed in detail here]. Based on these judgments, I would argue that Section 3C should be struck down. Even if it is not, courts rarely convict purely on the basis of this presumption (I say this based on handling / reading judgments in child sexual assault cases), which would render Section 3C ornamental at best. 

Section 3D

What makes Section 3C even more peculiar is Section 3D, which requires that the court shall presume the existence of the culpable state of mind required for committing the Section 3(3) offence fo causing "grievous hurt". As I have explained above, this is the extent to which the reverse burden clauses in other laws have been held to be valid, and one would imagine that even in cases under the Ordinance it is Section 3D which will be more important. 

But, where Section 3D parts with basic criminal procedure is by prescribing that an accused person proves that she did not have any such mental state "beyond reasonable doubt". Normally, this is the standard of proof to which the prosecution is tested in a criminal trial. Is it fair, or constitutional, to require that the accused be tested on the same burden? The Supreme Court unequivocally held in Noor Aga [(2008) 16 SCC 417] that it was not. In Noor Aga, the Court looked at Section 35(2) of the NDPS Act, 1985 which carried similar language and specifically held that the accused could not be required to establish facts by meeting this strict standard. 

It beggars belief that the Union Government would be so unaware of basic criminal procedure, which then leaves two alternatives explaining why the Ordinance has Sections 3C and 3D: (i) it is an open challenge to the legitimacy of the Supreme Court, or (ii) it is a strategic move and the government knows the law, but is still using these provisions which look harsh to score brownie points and spread fear. Both of these two alternatives are extremely distressing. 

Even otherwise, it is not a "zero cost" issue if the government repeatedly passes legislation which is, on its face, contrary to law. For the same battles that were fought earlier must now be fought again. Valuable judicial time and effort, not to mention lawyers' fee, must be spent upon merely restating the law. Passing provisions totally shifting the burden of proof on the accused will lead to the police filing chargesheets within 30 days (as required under Section 3A) with little or not facts in support of their case.

Conclusion

The new Ordinance with its harsh punishments for violence against healthcare service professionals is a great solution for governments which remain non-committal to heavy spending on social justice issues and remain antithetical to values such as transparency in governance through a crisis which has upended the lives of crores of citizens. And even though all that is required in passing a law is putting pen to paper, the Ordinance suggests that the Union Government was either ignorant of existing law or actively chose to ignore it — both of the alternatives equally damning.

Of course, the Ordinance will help prosecute persons who commit violence against doctors. But what the Ordinance has also done is tell the citizens that their fears, apprehensions, and misgivings about Covid-19 — created in no small measure due to the failure of governments to spend money and be transparent — are exclusively their problem. Any untoward (though unjustified) reactions arising as a result will not bring the government to account, but will require the citizen to prover her innocence in court. The Ordinance channels the feeling that the Maharashtra police put across bluntly: there are only two choices, lockdown or lockup.

Restrictive Bail Conditions in Indian Criminal Procedure: Lessons From History

The law on bail in India has often been discussed on the Blog. Most recently, we analysed the Indian Supreme Court's decision in Zahoor Watali, which revolved around Section 43-D of the Unlawful Activities Prevention Act 1967 [UAPA]; the provision which imposes conditions upon grant of bail in UAPA cases that go beyond the set of conditions laid out in Section 437 of the Criminal Procedure Code of 1973 [Cr.P.C.].

Section 43-D of the UAPA is far from the only example of Parliament creating a law that makes it more difficult to get bail. Indeed, on an earlier occasion, the Blog had offered an indicative list of the statutes carrying such provisions. But a lot was left out in that earlier post in the interests of brevity. Since the preference for such provisions is only increasing with each passing year, it's worthwhile to revisit the subject of restrictive bail conditions in Indian criminal procedure. 

This post takes a look at the first instance of such a provision being used in independent India, when it was added to the Essential Supplies (Temporary Powers) Act of 1946 [ESA] by an amendment in 1950 by the Provisional Parliament. 

Context: Scarcity in Independent India  

It is an undeniable fact that the overall quality of life has seen an increase for a majority of people in India since independence. Keeping that in mind, it is not easy for many of us to imagine the drastic scarcity in essential supplies, such as food and fuel, that India faced in the first two decades after independence. In an effort to manage the limited amount of these essential supplies, the Government chose to continue with a War-time measure of controls that entailed a system of intense state control over both production and distribution (Rohit De offers a window into this world in a chapter of his recent book). The ESA was one of those War-time measures that had been allowed to continue even after independence. 

But each passing month suggested that managing such a vast network of controls was proving too difficult. Thus, rather than curb prices and ensure fair distribution, the intense state control ended up contributing to a thriving black market. Here, supplies would be sold to the highest bidder and so profit would be much higher than what the trader would stand to get by selling material at artificially reduced prices. And this "blackmarketeering" happened by hoarding your supplies; telling customers that there isn't anything left when in fact a certain quantity of supplies was held back to be sold in the black market.

Basically, it became profitable to flout the law. But the costs of this were felt by everyone except the limited minority who could afford to spend large sums of money on the black market. This, naturally, meant that a large majority of the citizens of independent India were increasingly disaffected with the government that promised fair prices for goods and supplies. What was the point of independence, if it meant staying without food? This background helps understand the severity of the problem in the eyes of Parliament, and why it was felt necessary to amend the ESA in 1950 to introduce a stricter penal regime for those flouting the law (among other things).

ESA Debates in the Provisional Parliament: A "War" Against Hoarders

The ESA Amendment Bill was introduced and debated in the Provisional Parliament on August 14, 1950 (Page 1013, Left Column). The Minister for Food and Agriculture was K.M. Munshi, a lawyer who had played an important role through the drafting of the Constitution. 

After reading the different administrative aspects of the Bill, Munshi turned to the penal regime. Besides introducing a new offence with stringent punishment, the Bill also sought to make two changes to prevent persons from taking "advantage of the provisions of the Criminal Procedure Code" and drag out trials. One method was day-to-day trials for ESA crimes. The other, and the one that concerns this post, was introducing Section 13-A and a stricter regime on bail. He acknowledged that the Defence of India Rules were the inspiration for this provision, under which "bail cannot be given unless the prosecutor is heard and the Magistrate is satisfied that there are reasonable grounds for believing that [the accused] is not guilty." He further acknowledged, that "this puts the burden on the other side", but justified the measure as being an "emergency legislation" of some importance and this being a tool to deter people from hoarding. (Page 1020, Right Column).

The proposal did not go uncontested. Jaspat Roy Kapoor — who famously said that the Chapter on Fundamental Rights should have been renamed "Fundamental Rights and Limitations Thereon" — moved a motion to amend the clause which he argued was "against all elementary principles of law and equity" (Page 1097, Left Column). His changes to proposed Section 13-A were twofold:

• Rather than requiring that the prosecution be heard before granting bail, he suggested that the clause only require that the prosecution be given an opportunity to be heard. 
• Rather than require a court be satisfied that the accused is not guilty of the crime before to grant bail, he suggested that the clause should require that a court be satisfied that the accused was guilty of the crime.

The proposed changes were small but of substantial import. By requiring that the prosecution only be given an opportunity of being heard, rather than actually be heard, Kapoor sought to prevent cases where a wily prosecutor might create unnecessary delays to extend incarceration. Similarly, by asking that the court be satisfied about an accused person's guilt before granting bail, rather than be satisfied about her innocence, Kapoor sought to ensure that the clause was in harmony with the presumption of innocence:

It is for the prosecution to make out a prima facie case and not for the arrested person to establish his innocence when nothing has been made out against him. That is — I again submit at the risk of repetition — something astounding and offends against our sense of justice and jurisprudence. You may have a hard law, but let it not be a lawless law. Let it not appear to be ridiculous. After all that is not the way in which legislation should be enacted in a highly democratic Parliament. (Page 1100, Right Column).

The eminent lawyer Thakur Das Bhargava, another veteran of India's Constitutional journey, rose in support of this suggestion and condemned the proposed Section 13-A as "against all canons of justice and law" (Page 1101, Left Column). Naziruddin Ahmad also rose to support the attack on proposed Section 13-A, though, he was not troubled by the negation of the presumption of innocence as much as he was troubled by a fear of selective enforcement of this harsh tool (Page 1104, Right Column). 

The government response was telling. The Minister argued that the measure was hardly against all canons of jurisprudence as it had been part of Emergency legislation in India for a number of years. Removing this stringent bail provision, he argued, would weaken the whole legal apparatus (Page 1103, Right Column). When reminded that the Emergency legislation had been passed in times of War, Munshi boldly replied that "This is a war against hoarders" (Page 1104, Right Column).

Ultimately, Jaspat Roy Kapoor withdrew his amendment, stating that it was "sacred" to him and he sought to "spare it from defeat" (Page 1105, Left Column). Still, the suggested change with respect to giving prosecutors an opportunity to be heard was amended, as was a minor modification suggested by Bhargava on the degree to which a Court must be satisfied of innocence for granting bail. As a result, Section 13-A was brought on the ESA in the following form:

Notwithstanding anything contained in the Code of Criminal Procedure 1898, no person accused or convicted of a contravention of any order under Section 3 relating to food-grains which is punishable under the proviso to Sub-Section (2) of Section 7 shall if in custody, be released on bail or on his own bond unless

(a) the prosecution has been given an opportunity to oppose the application for such release, and 

(b) where the prosecution opposes the application it appears to the Court that there are reasonable grounds for believing that he is not guilty of such contravention. 

The Lasting Legacy of Section 13-A

K.M. Munshi was a supporter of expansive fundamental rights in the Indian Constitution. He was a proponent of having a "Due Process" clause, and when the phrase was culled from the text by the Drafting Committee, he was instrumental in securing its re-introduction through what is today Article 22 of the Indian Constitution. He was part of a group of persons which displayed tremendous ability to imagine an India different from the one they had inherited. One of the key features of this vision, was reducing the scope for individual oppression at the hands of government, by way of guaranteeing fundamental rights. 

At the same time, when faced with a problem of hoarding and food scarcity — which Government policy had partly created — Munshi and the other members leaders of an independent, democratic, republic of India displayed a telling lack of imagination and turned to the War-time measures of a colonial regime that simply invested greater powers with executive officers, while at the same time reducing the potential for checking abuses at the hands of such officers. 

This contradiction between legislative deeds and constitutional vision has continued to repeat itself often in Indian history, and especially if we choose to narrowly focus on the creation of new criminal statutes. Provisions with restrictive conditions on bail are one such example. Again and again, India seems to find itself in an "emergency" situation that needs a harsh procedure to prevent persons from getting bail too easily. Sadly, the government never comes around to telling us just how useful the "lawless laws" were in achieving any of the stated objectives.

Patna HC Liquor Ban Verdict - Proportionality in Punishments

A Division Bench of the Patna High Court yesterday ruled that the Bihar government’s prohibition measures were unconstitutional. These measures included notifications passed by the executive as well as amendments to the Bihar Excise Act made in 2016 by the Bihar Legislative Assembly. My friend at The Indian Constitutional Law and Philosophy Blog is most likely to post a scintillating analysis of the various constitutional law issues discussed by the Division Bench very soon. I’m trying to beat my friend at his game here. In this short comment I focus on the penal provisions introduced by the amendments which have been held unconstitutional.

Overview

The separate opinion of Justice Singh covers seven issues and he saves the best for last with his analysis of punishment clauses coming right at the end at Paragraph 89. Effectively, the law criminalised anything one did with alcohol (i.e. acts/omissions associated with its production, possession and consumption) contrary to the Act and rules. Punishments for these offences are neatly summarised into three categories in the judgment: (i) incarceration and fine (Sections 47, 53), (ii) confiscation of property (Sections 68-A, 68-G), and (iii) collective fines (Section 68-I) [There are other provisions on punishments in the Act as well that developed on these basic offences]. These were supplemented by the now-standard provision on reversing the burden of proof and presuming the accused is guilty (Section 48). The High Court unanimously held that these penal clauses were unconstitutional.

The Opinion

Out of these three categories, take categories (i) and (ii) separately from category (iii) which is collective fines. The collective fine provision is set aside for obvious violations of Article 21 of the Constitution as it imposed punishments contrary to a procedure established by law as no right of hearing or right of appeal was provided by the clause. Similar provisions for collective fines are present elsewhere that have these procedural safeguards [See, Section 16 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989].

Which brings me to the more interesting part of the decision concerning categories (i) and (ii). The primary plank on which these penal clauses are set aside is an argument on proportionality, i.e. the sentence imposed for an offence must be proportionate to the harm purportedly caused by the offence. This is a rather crude summation of what is a highly technical concept in sentencing theory [See, Andrew Ashworth Sentencing and Criminal Justice (5^th edn., 2010); Andrew Von Hirsch Censure and Sanctions (1993)]. The High Court located the concept of proportionality in criminal statutes in Article 21 of the Constitution by relying upon the Supreme Court decisions in Mithu Singh v. State of Punjab [(1983) 2 SCC 277] and Vikram Singh v. Union of India [(2015) 9 SCC (502)]. The three judges in Vikram Singh framed the proportionality test as follows: “Courts, however, have the jurisdiction to interfere when the punishment prescribed is so outrageously disproportionate to the offence or so inhuman or brutal that the same cannot be accepted by any standard of decency.”

In this case, the harm as per the State of Bihar was the various evils associated with excessive alcohol consumption that are afflicting its people. The response was to introduce penal provisions that had these notable features:

• A presumption of guilt which the accused must rebut without specifying whether the State had any burden to prove objective facts displaying commission of the offence;
• Broad constructive liability attracting persons whose property was allegedly involved in the commission of offences. These persons would be subjected to the similar presumption of guilt which they must rebut;
• Mandatory minimum punishments – warranting that a sentence of at least ten years’ imprisonment be awarded for possessing alcohol and at least five years for consuming it in a public place;
• Sealing of properties allegedly involved in commission of offences and their confiscation upon conviction;

The Court posed to itself a question – was this response proportionate to the harm – and answered it in the negative as it found the penal clauses were notoriously overbroad and unspecific. There was no gradation of punishment to differentiate minor and major violations. Nor did the punishment clauses show any sensitivity to how different acts posed different harms. The NDPS Act was cited as an example of how such clauses can be provided within constitutional limits (to think that the NDPS Act would appear as a measure for principled criminal legislation!). Notably, Justice Singh did not restrict his opinion to the badly drafted punishment provisions for his proportionality analysis. It also looked at the various procedural conveniences incorporated by the 2016 Amendments, i.e. the reversed burdens of proof and coercive procedures of confiscation and sealing of property. Although persons could plead ignorance as a defence, broad constructive liability meant far too many people would be unfairly accused and subjected to these coercive procedures while having to prove their innocence. These dangers were not set aside by the stringent punishments imposed on vexatious actions by overzealous state agents.

Some Comments

The absence of any sentencing policy or guidelines has been a common lament for several criminal law scholars in India over the years. This decision puts the problems starkly into perspective. Imposing a minimum ten-year imprisonment for possessing alcohol and confiscating premises where nobody knew alcohol was present there seems to satisfy the outrageously disproportionate standard of the decision in Vikram Singh. However, the Supreme Court in both Mithu Singh as well Vikram Singh was at pains to stress the different position that the death penalty occupied from a sentence of imprisonment. In Mithu Singh, one may recall, Section 303 IPC was set aside because it only allowed for the death sentence without any alternative. The Supreme Court in Vikram Singh put it bluntly: “there are very few and rare cases of sentences of imprisonment being held disproportionate.” The Patna High Court decision is therefore remarkable, for it places the penal clauses in the Bihar Excise (Amendment) Act 2016 in this category of very few and rare cases. To my knowledge, this is the first decision to use the proportionality doctrine to set aside penal clauses despite no death sentence being involved.

There are deeper problems though. The decision in Vikram Singh provided a neat ‘sum up’ of principles on proportionality at Paragraph 52. It was a summing up of principles drawn from Canadian and American jurisprudence – both have specific constitutional prohibitions on certain kinds of punishment. India does not. In fact, the Supreme Court on an earlier occasion in Jagmohan Singh v. State of U.P. [AIR 1973 SC 947] specifically noted that American jurisprudence on prohibiting cruel and unusual punishment [flowing from the Eighth Amendment to the United States Constitution] could not be imported in India because the Indian Constitution did not have similar clauses. Of course, Maneka Gandhi came after Jagmohan Singh and expanded the boundaries of Article 21 allowing us to possibly incorporate the Eighth Amendment jurisprudence. The problems of having such an indeterminate constitutional jurisprudence have been seen with the tussles over the right to privacy and its scope. Therefore, it should be clear that proportionality analysis of punishment clauses does not have a sure footing in Indian constitutional law and the expansion by the Patna High Court may well be considered beyond its current scope.

Conclusion

For now, though, one can only be happy with how proportionality is invoked to set aside statutes inflicting persons with disproportionate terms of imprisonment. This experience is similar to what happened in Maharashtra with the beef ban, where again a proportionality argument was raised to set aside the reverse burden clauses. It shows us that High Courts are stressing on a more principled brand of criminalisation, something that has not been the hallmark of how criminal law developed in India over time. A refusal to budge especially when prohibition was such an integral scheme of the ruling government reflects a commitment to principles that must be lauded. The decision is kind, for it tells the legislature what can be done to fix the law. If the State of Bihar chooses to challenge the decision rather than amend the statute, the Supreme Court will be able to consider these important questions. One hopes it upholds how the Patna High Court applied proportionality to restrain the legislature from abusing its near-plenary powers in sending people away for a decade for having a pint.