Sarthak Virdi
Introduction
Modern natural law theory views law as an objective-based entity that works to achieve a certain goal. It rejects the idea that the law is a ‘one-way projection’ of authority for it understands fidelity to the law to be based on a system of reciprocity between the lawmaker and the citizen. This reciprocity is established by ensuring the reasonability of promulgated laws and it thus takes a functional approach to law. This is to say that the law is to perform a certain function and in doing so, the process must be reasonable and fair. It is in this backdrop that this paper seeks to analyse reverse onus clauses that have recently become part of special legislations.
It does so by first, engaging with the work of Dworkin and Fuller. In doing so, it seeks to establish procedural law as an enterprise aimed at minimising what Dworkin calls ‘moral harm’. Second, using this backdrop it conceptualises criminal procedure as restriction on State power and it does so by using a ‘liberty perspective’ on criminal law. Lastly, it analyses reverse onus clauses, in particular those under Protection of Children from Sexual Offences Act (POCSO), 2012 to show why they are not legally sound and makes a case against them using the theoretical framework established. Before we begin however, it must be clarified that the piece engages in a philosophical enquiry as to why these clauses are unsound and does not focus on other laws on sexual offences. This is primarily because of the way the legislation has been misused and seeks to engage in a philosophical enquiry of the way it conceptualises burden of proof, in light of a decade of its implementation.
Dworkin And Fuller – Making a case for procedural rights
Dworkin classifies the harm suffered by punishment into two categories: one, the sense of outrage felt which is independent of the justness of the punishment, called the ‘bare harm’. Second, an objective sense of injustice arising out of unjust treatment (‘moral harm’). Say if X has been convicted of murder on false charges, there is a personal pain felt by X which is the bare harm; while simultaneously there is an objective notion of injustice that has occurred. This is objective because it is not relevant if X or the public is aware of the falsity of charges, injustice has occurred. This moral harm causes injustice which a utilitarian framework for the criminal law does not take into account. As per the utilitarian justification, a procedural rule that denies the accused their rights is justified if on the whole public interest benefits from the same. Dworkin however, identifies two rights that exist within the criminal process: first, that the criminal procedure must attach importance to the risk of moral harm and second, the right to a consistent weighting of the importance of the moral harm. Important here to note is that Dworkin does not mean to say that community welfare should be discarded altogether, but that these rights trump utilitarian calculations of welfare and they cannot be denied on the ground that a denial of these rights might lead to a net societal benefit. It might be that policy considerations might be used to design a procedure that puts a higher burden on the accused, but this procedure must be such that it takes the calculation of moral harm into account. Further, procedural law must consistently pay attention to this moral harm for it cannot be the case that one party has a right against the procedure.
But a question might arise as to why rights, the correctness of procedure and the avoidance of moral harm must be given the importance that Dworkin attaches to them. His answer to that would be that the moral force behind rights is human dignity and the maintenance of this dignity requires, among other things, the equal treatment of people. The denial of due process to an accused violates this principle of equal treatment. Due process for instance requires guilt to be proved beyond reasonable doubt. The requirement for the accuser to establish guilt beyond reasonable doubt ensures that an accused is protected against error; and by not placing the word of the accuser above that of the accused ensures that the dignity of the latter is preserved. A law that puts policy considerations above due process violates this principle of equal treatment and attacks individual dignity which is why we must aim to reduce the moral harm produced. Added to this is the fact that in cases of the nature as under POCSO, it is not just the victim against the accused, but the accused against state machinery and policy justifications in this case cannot be the basis to erode rights.
Having thus established Dworkin’s argument of rights not being divorced from procedural law, I now move to Fuller’s conception of the law. Fuller maintains that attention must be paid to the procedural aspect of rules and not just their substantive aims and understands law as a ‘purposive activity’. His idea of the Constitution is a procedural framework or to say that the substantive values of the Constitution must animate the procedural law. Law for him, cannot be built solely on law and there is an internal morality of the law, which makes it law. A procedural law will thus be understood to be good law when it remains committed to ensuring that Constitutional rights remain protected. For Fuller, it is this moral content of the law that cannot be ignored.
Reading Fuller and Dworkin together thus leads us to the following conclusions. First, law must be conceptualised as a process and as a means of achieving certain ends. Second, the procedural aspect of law has a close connection with substantive values. Third, these substantive values are the justification for procedural safeguards and they exist to minimise ‘moral harm’. Thus, the stronger a legal framework’s commitment to these substantive values, the lesser the moral harm caused and the more it ensures the maintenance of dignity. I now proceed to show why we must conceptualise criminal law in a particular way if we are to ensure the reduction of this moral harm. I then use the framework developed to analyse reverse onus clauses.
Conceptualizing criminal procedure
There are two approaches to criminal law: first, the liberty perspective which conceptualises the criminal process as a restriction on State power and second, the public order perspective, which puts considerations of public order over individual rights. The latter understands the criminal procedure not as a safeguard for the rights of accused, but as a procedure to get to the truth with the procedure being a technicality. Consider, for instance, the model Herbert Packer develops for criminal procedure; due process and crime control. As per the latter, the single most important consideration for the criminal process is suppression of criminal conduct, with a singular failure in the same bordering on the breakdown of the criminal justice system. PoG (presumption of guilt) becomes necessary because it helps achieve this purpose as efficiently as possible. While the Due Process model, which is the model this paper sticks to, understands the criminal justice system as one developed to reduce the possibility of error.
The Indian jurisprudence on Article 21 has accepted that there are certain values underpinning procedural law that must be adhered to for it to be just, given that procedure safeguards substantive rights. In Maneka Gandhi v Union of India, the Court categorically stated that procedure established by law must be fair, reasonable and not arbitrary for it to be considered constitutional. This concern with fairness of procedure or a commitment to ‘procedural due process’ is reflective of a liberty perspective and it is here that the nature of procedural law must be examined. If a law says ‘If X is accused of an offence, they must be assumed to be innocent until proven guilty’, then it is to be noted that the reasonable assumption of innocence operates as a protection of the accused’s substantive rights. This concern with procedure is not merely to ensure the correctness of outcome, but to protect substantive rights from invasion. Procedure thus cannot be viewed as a technicality for it is equivalent to not paying attention to the calculation of moral harm. The public order perspective converts criminal procedure into a facilitator of the Executive and in doing so puts considerations of policy over the correctness of procedure, without paying attention to moral harm. If we are to be committed to ensuring that the moral harm is reduced and dignity remains intact, the liberty perspective must be adhered to. It conceptualises procedure as a restriction on Executive power.
Thus, for analysing reverse onus clauses, the framework I am going to operate in is that one, the criminal procedure exists to check Executive power and use the liberty perspective. Second, this perspective ensures that every procedure must meet a minimum commitment to minimising moral harm if we are to protect dignity (Packer’s Due Process Model). I now proceed to analyse reverse onus clauses and in particular, clauses of the kind in the POCSO Act.
Reverse Onus Clauses And The Protection Of Children From Sexual Offences (Pocso) Act
Reverse onus clauses generally require the accused to prove that they have not committed the act they are accused of, or they do away with the presumption of innocence. These clauses are generally justified on the ground that some crimes are so heinous that it is in the general public interest to assume guilt. Going back to Packer’s Crime Control Model, the lower burden on the State is justified insofar as it makes the justice system more efficient in catching the perpetrators of these crimes. The presumption of innocence, however, is justified when we understand it in the theoretical framework laid down until now. Taking a procedural approach to law, it ensures that the process is fair by not placing an unfair burden on the accused. Second, it ensures that equality is maintained and thus reduces the moral harm produced. Third, it acts as a restriction on State power and comes close to the liberty approach and does not find its justification in a conception of criminal procedure as a facilitator of the Executive. I now analyse the same under POCSO to show why these clauses are not sound.
As per Section 29 and Section 30, if the allegation is regarding an offence under Section 3 (penetrative sexual assault), Section 5 (aggravated penetrative sexual assault), Section 7 (sexual assault) or Section 9 (aggravated penetrative sexual assault by a police officer) then the accused is presumed to be guilty. Before we proceed, however, it is important to take note of the way courts have read these sections. In Sahid Hossain Biswas v State of West Bengal, the Court held that the word of the prosecution cannot be taken for granted and that it is the job of the Court to scrutinise the evidence on record and check for infirmities. In Latu Das v State of Assam (2021) 4 Gau LR 430), the Court held that only if the prosecution prima facie establishes the commission of an offence under Section 29 only then is a presumption of guilt against the accused operative.
The argument here is about the content of the law and keeping in mind the scope for its misuse given the text of the legislation. While the courts have interpreted the Act in a way that does protect the accused, the same is not the basis of the argument here. Section 29 only requires the commission of an act of the nature mentioned in Sections 3, 5, 7 and 9 the burden is then on the defendant to establish his innocence. These clauses, however, cannot be justified when analysed against the framework established until now.
I now proceed to a two-pronged argument to establish why these clauses are incorrect. Firstly, arguendo, even if we are to proceed with the public order perspective and assume procedure to be a facilitator for the Executive; the goal of the criminal procedure in this paradigm would be punishing the guilty. The creation of a distinction between heinous and other crimes has no rational nexus to this goal, for the truthfulness of allegations does not depend on the nature of the crime). Merely because Crime A is more shocking than Crime B, the burden of proof for the former cannot be less than the latter, since the nexus of presumption of innocence as we have already seen is with the rights of the accused and not the nature of the crime. These clauses however attach greater weight to the claims of the victim because of the nature of the crime; which is not a reasoned causal link (there are, however, other justifications offered in support of these clauses. The accusing party has to prove a reasonable fact, but not beyond reasonable doubt. If the accused is unable to rebut the same, they are punished without their guilt being beyond reasonable doubt (Article 14 challenge). Further, on a failure to discharge their burden, the accused stands convicted. This results in a serious infraction of liberty for the accused is forced to put up a defence and there might be self-incrimination concerns (Article 21 challenge). The procedure thus lacks a nexus with the objective in the present case. Further, it might be argued that the law is necessary given the nature of the crime which happens in private spaces and the victim might not come forward given the societal hierarchies that exist between the offender and the victim. However, data points otherwise, for POCSO have often been invoked by parents of minors seeking to protect a girl’s honour. In the context in which the law is being used, the practical implications of it do not give us a justification to merely stick to the theoretical arguments offered in its support.
Secondly, circling back to our liberty perspective and viewing the Executive as a protective mechanism against the State; these clauses are not sound. They are not cognizant of the moral harm produced by such clauses. By placing the allegation of the accuser above the word of the accused merely on the basis of the nature of the crime, these clauses violate the requirement of equal treatment. These clauses thus do not pay consistent attention to moral harm and this procedure is thus not based on considerations of fairness. Taking a functional approach, they do not achieve their aims fairly and by not paying attention to moral harm, violate dignity. Thus, no matter how we conceptualise the goal of the criminal procedure to be – either an exercise in finding the guilty or creating a protection mechanism – these clauses cannot be said to be the correct process in achieving either of those aims.
Conclusion
This paper has shown why Sections 29 and 30 of POCSO are not legally sound. It has done so by first, showing establishing a theoretical framework using Dworkin and Fuller to use an approach to law that believes in procedural fairness. Second, I have argued for this procedure, in the context of criminal law, to not be conceptualised as a facilitator of the executive if we are to preserve dignity. Third, I have shown that reverse onus clauses, especially under POCSO, follow this facilitative approach to criminal procedure and violate dignity. Lastly, I have shown that even if we assume that these clauses follow the public order perspective, they cannot be justified.
The author is a second-year B.A., LL.B. (Hons.) student at the National Law School of India University, Bengaluru.
