INTERPRETATION OF REVERSE ONUS CLAUSES

INTERPRETATION OF REVERSE ONUS

CLAUSES

Juhi Gupta

The principle that a person should be presumed innocent until proven guilty

is a fundamental principle of procedural fairness in criminal law. Its jus-

tifications lie in the socio-legal consequences of convicting an individual

for the commission of a crime. This principle acts as a protection against

erroneous convictions and ensures that an accused is not oppressed by

the immense power and resources of the State. The opposite rule – a pre-

sumption of guilt – imposes an unfair burden on the accused that requires

him to prove his innocence, failing which he is convicted. Such a burden is

envisaged by reverse onus clauses or reverse burdens, which supplant the

hallowed presumption of innocence with the grossly unjust presumption of

guilt. This paper argues that reverse onus clauses are both unconstitutional

and a glaring contravention of a sacred principle of criminal law.

I. INTRODUCTION

The presumption of innocence, the principle that an accused

should be presumed innocent unless and until proved guilty, is perhaps the

fundamental principle of procedural fairness in criminal law.

It is considered

fundamental because it is believed that allowing the guilty to go free is better

than convicting the innocent.

Lying at the heart of criminal law, this principle

is invaluable for protecting an accused in a criminal trial, which is seen to be a

contest between two unequal actors, namely the State and the accused. It pro-

tects his fundamental liberty and human dignity, preventing him from being

subjected to the grave socio-legal consequences of a conviction unless his guilt

is unequivocally established. This is essential in any society that believes in

equity and social justice and thus, the principle is worthy of paramount respect

by both the legislature and the judiciary.

The presumption of innocence is inextricably linked to the burden

of proof. Burden of proof, in simple terms, dictates which party bears the onus

to prove a certain fact during the course of a civil or criminal trial. It has been

defined in the following words:

year student, NLSIU, Bangalore.

Andrew Ashworth, PrinciPles of criminAl lAw 72 (2009).

Victor Tadros & Stephen Tierney, The Presumption of Innocence and the Human Rights Act,

67(3) mod. l. rev. 402 (2004).

Byron M. Sheldrick, Shifting Burdens and Required Inferences: The Constitutionality of

Reverse Onus Clauses, 44(2) U. toronto fAc. l. rev. 179, 180 (1986).

50 NUJS LAW REVIEW 5 NUJS L. rev. 49 (2012)

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“On every issue, there is an obligation on one party to con-

vince the tribunal of the truth of some proposition of fact

which is in issue and which is vital to his case.”

Since presumption of innocence is the fundamental element of a

trial, the legal or ultimate burden of proof is always on the prosecution to prove

the guilt of the accused.

The prosecution must, therefore, prove a concurrence

between mens rea and actus reus beyond reasonable doubt in order to discharge

its burden.

The burden is on the accused to rebut the court’s presumption that

a particular exculpating circumstance was absent by raising either a defence or

an exception.

Commonly referred to as the reverse evidential burden, it merely

requires proof from the accused, which satisfies the ‘prudent man’ standard or

at least creates reasonable doubt regarding one or more necessary ingredients

of the offence. The prosecution will continue to bear the legal burden to negate

the exculpation of the accused. If the accused succeeds in creating reasonable

doubt, he will be acquitted because the prosecution has been unable to prove his

guilt.

Thus, the legal burden of proving all necessary ingredients of an offence

is on the prosecution from the commencement to the termination of a trial.

One would imagine that given the near sacred status of the pre-

sumption of innocence, it cannot be compromised in any circumstance what-

soever. Reverse onus clauses or reverse burdens, however, constitute a singular

exception to this fundamental rule, supplanting the ‘golden thread’

of criminal

law with a presumption of guilt. They strip the principle of its very essence

and replace ‘innocent until proven guilty’ with ‘guilty until proven innocent’,

making the accused a presumptive criminal who needs to prove his innocence.

Reverse onuses dilute the prosecution’s legal burden to the extent that the pros-

ecutor is required to prove only a minimum threshold (also referred to as the

basic or predicate fact), which is the actus reus.

Based on the minimal amount

of proof adduced, the culpability of the accused is presumed and the burden

s.l. PhiPson & michAel howArd, PhiPson on evidence 51 (2000).

The Indian Evidence Act, 1872, §101: Burden of Proof - Whoever desires any Court to give

judgment as to any legal right or liability dependant on the existence of facts which he asserts,

must prove that those facts exist. When a person is bound to prove the existence of any fact, it

is said that the burden of proof lies on the person.

Tadros & Tierney, supra note 2, 406.

The Indian Evidence Act, 1872, §105: Burden of proving that case of accused comes within

exceptions- When a person is accused of any offence, the burden of proving the existence of

circumstances bringing the case within any of the General Exceptions in the Indian Penal

Code (45 of 1860) or within any special exception or proviso contained in any other part of the

same Code, or in any law defining the offence, is upon him, and the Court shall presume the

absence of such circumstances.

David Hamer, The Presumption of Innocence and Reverse Burdens: A Balancing Act, 66(1)

cAmbridge lAw JoUrnAl 142, 143 (2007); See also Dahyabhai Chhaganbhai Thakkar v. State

of Gujarat, AIR 1964 SC 1563.

Woolmington v. D.P.P., [1935] A.C. 462 (‘Woolmington’).

Sheldrick, supra note 3, 181-182.

INTERPRETATION OF REVERSE ONUS CLAUSES 51

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to establish absence of mens rea is then shifted to the accused.

The burden

upon the accused in such cases, also known as the persuasive burden, is ulti-

mate or legal because failure to discharge it will result in the conviction of the

accused.

Therefore, unlike in a reverse evidential burden, where the ac-

cused only has to raise reasonable doubt as to his guilt while the legal burden

continues to persist on the prosecution, in a reverse persuasive burden, the role

of the prosecution ends once the burden shifts to the accused.

In most reverse

onus clauses, the standard of proof to be met by the accused is a preponder-

ance of probabilities standard.

The failure to meet this standard results in his

conviction even if reasonable doubt as to his guilt exists whereas in an ordinary

offence carrying a reverse evidential burden, reasonable doubt as to the guilt of

the accused results in his acquittal.

This paper argues that reverse onus clauses are unconstitutional

as they infringe the presumption of innocence. The paper assesses the justifica-

tions and objections to reverse burdens and seeks to demonstrate their incom-

patibility with the principles and values of a democratic society.

II. JUSTIFICATIONS

There are various policy motivations that have been advanced to

justify reverse burdens. The argument of public interest combined with the

magnitude of the evil sought to be suppressed is the most common policy ra-

tionale advanced. As a result, the presumption of innocence has been watered

down on the pretext of public interest and speedy justice, therefore justifying

the inclusion of reverse onus clauses in socio-economic legislation.

The rec-

ommendations of the 47

Report of the Law Commission, 1972 suggest that

since offences relating to narcotics, corruption and food adulteration threaten

the ‘health or material welfare of the community as a whole’, special efforts are

Tadros & Tierney, supra note 2, 418.

See generally State of Tamil Nadu v. A. Vaidyanatha Iyer, AIR 1958 SC 61 (discussing the

concept of mandatory presumptions creating reverse burdens).

Sheldrick, supra note 3, 182.

While the standard of proof employed in most reverse onus clauses is one of preponderance/

balance of probabilities, certain statutes prescribe the standard of proof beyond reasonable

doubt such as the Narcotic Drugs and Psychotropic Substances Act, 1985, the Essential

Commodities Act, 1955 and the Wealth Tax Act, 1957.

Sheldrick, supra note 3, 182-183.

Some statutory provisions employing reverse onus clauses in India are- the Food Adulteration

Act, 1954, §10(7-B), the Essential Commodities Act, 1955, §10C, the Customs Act, 1962,

§§123, 138A and 139, the Foreign Exchange Management Act, 1999, §39, the Narcotic Drugs

and Psychotropic Substances Act, 1985, §§ 35, 54 and 66, the Wealth Tax Act, 1957, §35-O and

the Prevention of Corruption Act, 1988, §20.

52 NUJS LAW REVIEW 5 NUJS L. rev. 49 (2012)

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necessary for their enforcement.

The Commission further emphasised that

the injury to society was greater in certain offences against public welfare in

comparison to crimes having an identifiable victim, such as murder.

It was

felt, therefore, that conformity with the traditional standard of proof impeded

the State’s efforts to prove the mental element that “undoubtedly exists” in

such offences, preventing the State from effectively addressing and regulating

escalating instances of such crimes.

Reverse onus burdens are not confined to socio-economic of-

fences and have subsequently been incorporated into the Indian Penal Code,

1860, for the offences of rape and dowry death.

An analysis of the specific

statutory provisions utilising reverse onus clauses is outside the scope of the pa-

per and it would suffice to say that these clauses mandate the accused to prove

absence of mens rea in the form of intention, motive, knowledge, or belief in

relation to the actus reus of a crime.

The rationale adopted by the legislature, as reflected in the 47

Report, is that exigency demands that various socio-economic offences be put

down with a heavy hand, therefore justifying a departure from the traditional

requirements of criminal procedure.

Such an approach attempts to achieve the

goal of deterrence, which could contribute towards reducing the occurrence of

these offences.

Another justification is the practical difficulty encountered by the

prosecution in the process of obtaining proof. In this respect, it is argued that it

is difficult for the prosecution to adduce evidence about matters that are within

the exclusive or peculiar knowledge of the accused.

This justification also en-

compasses the rationalisations of judicial economy and administrative conveni-

ence since reverse burdens appear to facilitate shorter, easier and less expensive

trials, thereby conserving valuable resources that would have ordinarily been

expended in investigating facts that are exclusively within the knowledge of

the accused.

These clauses are also perceived as securing a higher conviction

lAw commission of indiA, 47

rePort- the triAl And PUnishment of sociAl And economic

offences 2, 4 (1972) (highlighting, inter alia, that avaricious or rapacious motive of the crimi-

nal, non-emotional background of the crime, fraud as the mode of operation, etc.).

Id., 3.

Id., 44-47.

Indian Penal Code, 1860, §114A (Presumption as to rape) and §113B (Presumption as to dowry

death) (introduced on the recommendations of the 84

and 91

Law Commission Reports

respectively).

Sheldrick, supra note 3, 12; see also Tadros & Tierney, supra note 2, 428.

Solomon E. Salako, Strict Criminal Liability: A Violation of the Convention?, 70 JoUrnAl of

criminAl lAw 531, 533 (2006) (Although the paper discusses this idea in the context of strict

criminal liability in regulatory offences, it can be extrapolated to the socio-economic offences

in India for which reverse onuses have been introduced).

Paul Roberts, Taking the Burden of Proof Seriously, criminAl lAw review 783, 785 (1995).

Sheldrick, supra note 3, 204; Salako, supra note 22, 535; Hamer, supra note 8, 158.

INTERPRETATION OF REVERSE ONUS CLAUSES 53

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rate than under the rigid standard of proof beyond reasonable doubt, thereby

furthering the goal of deterrence.

III. COUNTERS

In my opinion, these justifications are sleights of the hand that

conceal the real dangers that reverse onus clauses engender. The discussion that

follows will identify these dangers and examine the constitutionality of reverse

burdens as upheld by the Supreme Court.

The first of two objections that should be raised at the very outset

is that the prosecution dictates the structure of the case. Prosecutors determine

not only the charge against the accused but also the sufficiency of evidence

required to prove the actus reus. In addition, the process of adducing evidence

weighs heavily in the prosecution’s favour. Thus, requiring the accused to prove

that he did not possess the requisite mens rea in response to the prosecution’s

case is a formidable task. In most cases, the prosecution has easier and greater

access to investigative resources than the accused and is, therefore, better

equipped to establish guilt than an accused trying to establish innocence.

Second, peculiar knowledge of the accused is not correlated to his

ability to prove a relevant fact. The judicial economy justification, which claims

that only the accused can prove what is exclusively known by him, thereby

conserving time and resources, is misconceived. Even if he knows that he is

innocent, he may not be able to prove it on a balance of probabilities and the

assumed correlation between knowledge of an element and the ease of proving

the same is false.

The prosecution’s difficulty in proving what is known only

to the accused does not warrant an inroad into the presumption of innocence.

Given that most mens rea terms are within the peculiar knowledge of the ac-

cused, the prosecution is likely to encounter this difficulty in most cases, which

would then tantamount to justifying the placing of the onus of proving every

element of the offence on the accused.

David Hamer asserts that the “proof

imbalance” claimed by the prosecution must be extraordinary, particularly be-

cause the presumption of innocence tackles the asymmetry in adducing proof

by providing the accused with the benefit of the doubt. Given that the pros-

ecution will have access to objective evidence from which mens rea can be

inferred, the rights of the accused should not be sacrificed merely on account of

constraints the prosecution may encounter in obtaining proof.

Peculiar knowl-

edge can at best justify a reverse evidential burden on the accused to raise

Sheldrick, supra note 3, 204.

Roberts, supra note 23, 786.

Tadros & Tierney, supra note 2, 426-427.

Glanville Williams, The Logic of “Exceptions”, 47(2) cAmbridge l. J. 261, 268 (1988).

Hamer, supra note 8, 158-161.

54 NUJS LAW REVIEW 5 NUJS L. rev. 49 (2012)

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certain facts or defences in circumstances where the prosecution would not

otherwise know of their existence.

I V. CONSTITUTIONAL CHALLENGE

The presumption of innocence and reverse burdens seek to bal-

ance the personal rights of the accused with the community’s broader inter-

est in law enforcement.

The question that arises in relation to this balancing

act is which one should be privileged. While presumption of innocence places

greater weight on the rights of the accused, reverse burdens favour law enforce-

ment, thereby justifying the latter’s inclusion and constitutionality in India.

In Noor Aga v. State of Punjab,

the Supreme Court held that re-

verse burdens are constitutional, both policy considerations and social control

concerns justifying this extraordinary measure. Although the presumption of

innocence was recognised to be an element of personal liberty, Sinha J. held

that individual liberty must be subject to social interest to ensure security of the

State. In addition, he stated that a penal provision’s constitutionality needs to be

tested on the anvil of the State’s responsibility to protect innocent citizens and

hence, the rights of the accused and societal interest need to be balanced. The

Court seemed to justify the shift in legal burden on the ground that the shift

is not automatic and occurs only once the prosecution has met the threshold of

establishing the actus reus and foundational facts according to the procedure

stipulated.

Although the Court cautioned that the prosecution needs to

strictly comply with a statute’s procedural requirements and establish the actus

reus beyond reasonable doubt, it is alarming that despite acknowledging the

importance of presumption of innocence in maintaining public confidence in

the legal system, the Court still upheld the constitutionality of reverse burdens.

While it recognised the need to protect innocent citizens and the higher degree

of certainty needed to secure convictions in serious offences, it failed to realise

the higher likelihood of reverse burdens convicting innocent individuals even

when a reasonable doubt subsists.

Ian Dennis, Reverse Onuses and the Presumption of Innocence: In Search of Principle, 12

criminAl lAw review 901, 915 (2005); See also Williams, supra note 28, 268.

Hamer, supra note 8, 147.

(2008) 16 SCC 417.

See also M/s. Seema Silk and Sarees v. Directorate of Enforcement, (2008) 5 SCC 580.

INTERPRETATION OF REVERSE ONUS CLAUSES 55

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A. ARTICLE 14 CHALLENGE

At this stage it would be relevant to highlight the two-pronged

test adopted by the Canadian Supreme Court in R. v. Oakes

to evaluate the

constitutionality of reverse burdens in a democratic society:

1. Measures responsible for limiting a constitutionally protected right or

freedom must be for an objective of sufficient importance.

The objective of sufficient importance in the context of reverse

burdens is public interest and welfare. It is submittted that attempting to create

an intelligible differentia on the basis of this objective renders reverse burdens

unconstitutional, as the classification arrived at is highly dubious. There is no

clarity as to which offences satisfy this criterion, generating a problem of the

over-inclusion and under-inclusion of offences, which creates a realm of uncer-

tainty that cannot exist in the constitutional domain.

Victor Tadros and Stephen Tierney make an argument germane

to the Indian context when they argue that although a crime such as murder

directly harms particular individuals, such crimes can also be construed as a

threat to public interest, given the frequency of its occurrence in society.

Acts

are made crimes which society views as both inherently wrong and dangerous

to public well-being. Thus, the justification of using public interest as a basis of

classification is questionable at best.

In addition, when legislation covers an

important area of social policy, it is often overlooked whether ‘public interest’

is being used to disguise internal problems encountered by the prosecution or

whether there exists any empirical evidence that supports the claim that reverse

burdens subserve Parliament’s intended purpose.

In India, however, no such

empirical study has been conducted.

Even assuming that public interest is a valid objective, it is neces-

sary to assess the rational connection between reverse burdens and the State’s

purported objective.

This is where the second prong of Oakes features.

R. v. Oakes, [1986] 1 SCR 103 (‘Oakes’).

Id., ¶ 69.

Tadros & Tierney, supra note 2, 433.

Id.

Andrew Ashworth, Four Threats to the Presumption of Innocence, 10(4) int’l J. evidence &

Proof 241, 243 (2006); See also Tadros & Tierney, supra note 2, 428.

Oakes, supra note 34, ¶70.

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2. There must be proportionality between the means and recognised

objective.

a. The means must be rationally connected to the objective;

b. Even if rationally connected, the means should impair as little as pos-

sible of the rights or freedom in question; and

c. There must be proportionality between the effects of the means and the

recognised objective.

Reasonable nexus refers to the existence of a rational connec-

tion between the law’s intended object and the means used to achieve that end.

Firstly, there needs to be an internal rational connection, which refers to a nexus

between the proof of the basic fact (i.e., the actus reus) and the presumed fact

(i.e., the mens rea). This is absent in a reverse burden as there is no legitimate

link between the two.

The grave injustice that such a connection engenders

can be gauged by an inquiry of the use of §§ 35 and 54 of the Narcotic Drug

and Psychotropic Substances Act, 1985 (‘NDPS Act’). §35 presumes that the

“culpable mental state” of the accused at the time of his prosecution for any

offence under the NDPS Act and §54 presumes that the accused has committed

an offence if he fails to account for the possession of any narcotic drug or psy-

chotropic substance satisfactorily. The outcome of these two sections has been

to presume that the accused is guilty merely on the basis of physical possession

and not conscious possession. Once the prosecution has proved the former, the

possession is presumed to be conscious and the accused bears the burden of

proving the absence of a “culpable mental state.” For instance, in Megh Singh v.

State of Punjab,

the accused was convicted because he was unable to rebut the

presumption of conscious possession, which was based solely on the accused

being found sitting on a gunny bag containing poppy husk.

Having noted this, it needs to be emphasised that merely proving

an internal rational connection cannot justify the constitutionality of a reverse

onus clause. It is an insufficient protection for the accused because a basic fact

may tend to prove a presumed fact but not prove it beyond reasonable doubt.

Therefore, an accused could be convicted despite the presence of a reasonable

doubt if he is unable to satisfy the persuasive burden, which contravenes the

presumption of innocence.

Reverse burdens are believed to prevent an accused from escaping

the strict standard of proof beyond reasonable doubt, thereby augmenting the

conviction rate and securing public interest. A high conviction rate, however,

Id., ¶77.

Megh Singh v. State of Punjab, (2003) 8 SCC 666: AIR 2003 SC 3184.

Oakes, supra note 34, ¶ 59.

INTERPRETATION OF REVERSE ONUS CLAUSES 57

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does not necessarily imply a crime-free society. This is all the more pertinent

in reverse onus clauses where a conviction is not a necessary indicator of the

proof of the guilt of the accused and may just be the unfortunate result of the ac-

cused being unable to meet the high standard of proof imposed upon him. With

the probability of erroneous convictions being significantly higher in reverse

burdens, public interest stands defeated. This is because trapping innocent in-

dividuals in the rigours of criminal law is never in the interest of a democratic

society,

and does not contribute towards reducing the incidence of the very

offences for which reverse burdens were introduced. Further, the possibility of

achieving the legislative purpose of public interest by less draconian means is

often not considered, either by Parliament or courts.

Although the risk of miscarriage of justice engendered by reverse

burdens is seen to be proportionate to the benefit that will accrue from effec-

tive law enforcement leading to a concomitant reduction in the threat posed to

society by the evil in question,

public interest is actually potentially defeated

as reasoned above.

Further, as Hamer writes, no matter how valid the exi-

gency of the threat to society is, it does not license the legislature to trample

upon a defendant’s right to a fair trial by indiscriminately employing any means

regardless of the existence of a rational connection.

Reverse burdens can pos-

sibly only be used for offences imposing minor penalties.

The extremity of us-

ing reverse burdens can be expressed in the following words by Paul Robert:

“From the fact that special measures are sometimes justified

in response to acute threats of harm, it simply does not follow

that anything goes in the fight against it. Exclusively result-

oriented practices and procedures are fundamentally incom-

patible with just censure and punishment under the rule of

law. At the bottom of the slippery slope, where policing has

assimilated the techniques of terror, law enforcement is in

danger of forfeiting its essential claim to legitimacy... .”

Having demonstrated the incompatibility of reverse onuses with

the requirements of intelligible differentia and a reasonable nexus, I conclude

that they violate Art. 14 of the Constitution.

Hamer, supra note 8, 147.

Tadros & Tierney, supra note 2, 411, 429.

Id., 428.

See supra text accompanying notes 42-43.

Oakes, supra note 34 (the Supreme Court conceded the seriousness of the object (suppression

of drug trafficking) but found reverse burdens to be an irrational means).

Hamer, supra note 8, 156.

Paul Roberts, The Presumption of Innocence Brought Home? Kebilene Deconstructed, 118 l.

Q. rev. 41, 65 (2002).

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B. ARTICLE 21 CHALLENGE

Rules relating to burden and standard of proof in criminal trials

are indispensable because they promote individual freedom and are bulwarks

against oppression. Reversing the burden, however, renders the accused a pre-

sumptive criminal, disregarding his individual liberty and dignity, thereby vio-

lating Art. 21.

Many commentators argue that reverse burdens are an unjust

means because the risk the accused is subjected to is much graver than the law’s

intended object, regardless of the latter’s importance to society.

Ian Dennis

rejects judicial deference to legislative intent as a justification used by courts

to override such concerns since the proportionality of reverse burdens to the

policy goal is a question of the procedural fairness, which courts must decide

upon as guardians of principles of procedural injustice and constitutionality.

Paul Roberts goes to the extent of saying that laws incorporating reverse bur-

dens “commend themselves to a totalitarian regime which wished to retain the

bare window-dressing of legality, but it is not the badge of an administration

which values and respects its citizens’ freedom.”

Art. 21 contemplates that the ‘procedure established by law’ to be

reasonable, right, just and fair,

and embraces the right to a fair trial.

Reverse

onus clauses, on the other hand, are antithetical to this. It is a settled principle

of criminal jurisprudence that crimes of a more serious nature entail a higher

degree of certainty before convicting the accused. Reverse burdens, however,

enable the State to “intervene in the lives of individuals and their families in

far-reaching and sometimes catastrophic ways.”

They operate on the very es-

sence of criminal culpability, displacing the presumption of innocence with

one of guilt, making the accused a presumptive criminal.

Once the prosecu-

tion has proved the actus reus beyond reasonable doubt and the legal burden

Oakes, supra note 34, ¶ 29 (Dickson C.J. said: “The presumption of innocence protects the

fundamental liberty and human dignity of any and every person accused by the State of crimi-

nal conduct. An individual charged with a criminal offence faces grave social and personal

consequences, including potential loss of physical liberty, subjection to social stigma and

ostracism from the community, as well as other social, psychological and economic harms. In

light of the gravity of these consequences, the presumption of innocence is crucial. It ensures

that until the State proves an accused’s guilt beyond all reasonable doubt, he or she is innocent.

This is essential in a society committed to fairness and social justice. The presumption of in-

nocence confirms our faith in humankind; it reflects our belief that individuals are decent and

law-abiding members of the community until proven otherwise.”).

Dennis, supra note 30, 908.

iAn dennis, the lAw of evidence 463 (2007).

Roberts, supra note 23, 787-788, 796.

Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3 SCC 374.

Roberts, supra note 23, 785.

Id., 785-786.

INTERPRETATION OF REVERSE ONUS CLAUSES 59

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shifts to the accused, the accused will be convicted if he is unable to satisfy

the balance of probabilities standard, even if a reasonable doubt exists as to

whether he possessed the mens rea to commit the offence. The law thus moves

to convict individuals on the basis of a presumption, which they cannot rebut

satisfactorily.

Further, reverse burdens compel the accused to testify as opposed

to the reverse evidential burden, which gives the accused the opportunity to

either respond to the prosecution’s evidence or raise any exculpatory defence.

Reverse burdens, however, leave the accused with no choice but to testify to his

innocence, attracting concerns of self-incrimination as well as infringement of

his right to remain silent.

Such clauses also ignore legitimate apprehensions

an accused may have about his failure to testify being viewed as conclusive of

his guilt.

The denigration of individual liberty is connected to the most

far-reaching argument against reverse onus clauses – the infraction of the

presumption of innocence. The locus classicus on presumption of innocence

is undoubtedly Woolmington v. D.P.P.,

in which Lord Chancellor Viscount

Sankey’s elucidation of the principle continues to be remembered even today.

Reverse onus clauses replace the presumption of innocence with a presumption

of guilt. The presumed fact’s rebuttable nature is an unreasonable justification

for imposing a reverse burden because what the accused is being made to do

is rebut a presumption of guilt and prove his innocence.

A balance of prob-

abilities standard does not in any way justify a reverse onus clause because the

burden on the accused is ultimate, implying that his failure to discharge this

burden would result in his conviction.

In addition, while such a standard is

lower than proof beyond reasonable doubt, it is still extremely difficult to meet

for the accused for the objections raised before.

Sheldrick, supra note 3, 200.

Salako, supra note 22, 540; see also Sheldrick, supra note 3, 199-200 (discussing several

legitimate reasons for the unwillingness of an accused to testify).

Roberts, supra note 49, 48; see also Sheldrick, supra note 3, 199-200 (discussing several le-

gitimate reasons for the unwillingness of an accused to testify).

Woolmington, supra note 9, 481.

Id. (Lord Chancellor Viscount Sankey entrenched the principle in the following words: “One

golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s

guilt... If, at the end of and on the whole of the case, there is a reasonable doubt, created by

the evidence given either by the prosecution or prisoner, as to whether the prisoner killed the

deceased with a malicious intention, the prosecution has not made out the case and the pris-

oner is entitled to an acquittal.” Viscount Sankey, however, also stated that the presumption

is subject to any statutory exception and thus, the decision sent out mixed signals and allowed

Parliament to incorporate reverse burdens); Ashworth, supra note 37, 246.

Peter Lewis, The Human Rights Act 1998: Shifting the Burden, 8 criminAl lAw review 667,

671 (2000).

Williams, supra note 28, 265.

See supra text accompanying notes 26-30.

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The asymmetry in the burden of proof embodied by the presump-

tion of innocence has been deliberately envisaged in order to level the playing

field between the accused and the powerful State.

It defends the individu-

al’s right to autonomy and dignity against erroneous convictions.

Irit Weiser

highlights the important symbolic function of the standard of proof beyond

reasonable doubt in singling out criminal offences as particularly serious and

affirming public commitment to values of individual liberty.

It is also indis-

pensable towards shielding the accused from the social stigma, loss of reputa-

tion, and psychological and economic harms of a criminal conviction.

It is

crucial to factor this in because the gravity of the offence has a definite impact

on the injustice of an incorrect conviction.

While the stigma associated with

regulatory or quasi-criminal offences employing reverse burdens is lesser,

offences for which reverse burdens are employed in the Indian context carry

grave punishments.

For instance, the NDPS Act has many provisions impos-

ing a minimum punishment of ten years rigorous imprisonment and a maxi-

mum of twenty years rigorous imprisonment, with the maximum fine being Rs.

2 lakh, subject to an increase at the court’s discretion. Other statutes such as

the Essential Commodities Act, 1955, Prevention of Corruption Act, 1988 and

Customs Act, 1962 envisage maximum imprisonment terms of seven years and

fines to be fixed by the court. This furthers the argument against compromising

the presumption of innocence to pursue a policy interest, since the purpose of

the principle is to prevent wrongful convictions even though the State may have

worthy objectives in seeking a higher rate of conviction.

In jurisdictions such as Canada and South Africa, the presump-

tion of innocence has been accorded constitutional status, as it is a fundamental

right in the Canadian Charter of Rights and Freedoms,

and the South African

Ndiva Kofele-Kale, Presumed Guilty: Balancing Competing Rights and Interests in Combating

Economic Crimes, 40(4) int’l .lAw. 909, 922 (2006).

Ashworth, supra note 38, 248-249; see also Kofele-Kale, id., 924.

Irit Weiser, The Presumption of Innocence in Section 11(d) of the Charter and Persuasive and

Evidential Burdens, 31 criminAl lAw QUArterly 318, 323 (1988-1989); see also Sheldrick,

supra note 3, 186.

Tadros & Tierney, supra note 2, 431.

Hamer, supra note 8, 149.

Id.

Subsequent to the Human Rights Act, 1998, the House of Lords has factored offence seri-

ousness in many decisions to invalidate reverse burdens, such as in R. v. Lambert, [2001]

UKHL 37 (‘Lambert’) where the offence was punishable by life imprisonment and in Attorney

General’s Ref. 4/02, [2004] UKHL 43 (‘Attorney General’) where the punishment was ten

years imprisonment. On the other hand, in Sheldrake v. D.P.P., [2004] UKHL 43, the House

of Lords upheld a reverse onus clause where the maximum penalty for the offence was six

months imprisonment. See Tadros & Tierney, supra note 2, 433 (arguing that even offences

carrying seemingly low penalties can bear serious ancillary repercussions such as social

stigma and ostracism).

Tadros & Tierney, supra note 2, 428.

Canadian Charter of Rights and Freedoms, 1982, Art. 11(d).

INTERPRETATION OF REVERSE ONUS CLAUSES 61

January - March, 2012

Constitution,

respectively. Consequently, reverse onus clauses have categori-

cally been declared to be unconstitutional for abusing the presumption of in-

nocence.

Although the principle is not an explicit constitutional guarantee in

the US, it has been read into the due process provisions of the American Bill

of Rights contained in the Fifth and Fourteenth Amendments to the American

Constitution.

A high degree of constitutional protection has been accorded

to the principle in the US by a strict application of the rational connection

test in determining the validity of a reverse onus clause.

In the UK, reverse

onus clauses were freely employed by the Parliament in a variety of statutes.

The enactment of the Human Rights Act, 1998, which enforces the European

Convention on Human Rights, 1950,

enshrines the principle of presumption

of innocence and has resulted in many reverse persuasive burdens being read

down to reverse evidential burdens.

The Constitution of South Africa, 1996, §35(3)(h).

For the Canadian position, see Oakes, supra note 34; for the South African position, see S. v.

Zuma, 1995 (2) SACR 748.

Re: Winship, 397 US 358, 363-364 (1970) (in which the U.S. Supreme Court held: “The re-

quirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for

cogent reasons. The accused during a criminal prosecution has at stake interests of immense

importance, both because of the possibility that he may lose his liberty upon conviction and

because of the certainty that he would be stigmatized by the conviction. Accordingly, a society

that values the good name and freedom of every individual should not condemn a man for

commission of a crime when there is reasonable doubt about his guilt.” Accordingly, the deci-

sion read the standard of proof beyond reasonable doubt into the due process clause, thereby

impliedly reading the presumption of innocence into the clause as well); See also Coffin v.

United States, 156 US 432 (1895) (established the presumption of innocence in criminal trials);

Taylor v. Kentucky, 436 US 478 (1978) (which discusses the relationship between the burden

of proof and the presumption of innocence); see generally Shima Baradaran, Restoring the

Presumption of Innocence, 72(4) ohio st. l. J. 723 (2011).

Leary v. United States, 395 US 6, 36 (1969) (Harlan, J. held: “A criminal statutory presump-

tion must be regarded as “irrational” or “arbitrary”, and hence unconstitutional, unless it can

at least be said with substantial assurance that the presumed fact is more likely than not to flow

from the proved fact on which it is made to depend.”); County Court of Ulster County, New

York v. Allen, 442 US 140, 167 (1979) (Stephens J. held that for a mandatory presumption,

i.e., a presumption that shifts the persuasive burden to the accused, the basic fact must be suf-

ficiently established to prove the presumed fact beyond reasonable doubt. Such a presumption

would be valid and can be considered by the jury. In his words: “Since the prosecution bears

the burden of establishing guilt, it may not rest its case entirely on a presumption unless the

fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.”); see

generally Leo H. Whinery, Presumptions and their Effect, 54 oklA. l. rev. 553 (2001).

Examples of English statutes employing reverse burdens are the Misuse of Drugs Act,

1971, §28(3), Health and Safety at Work Act, 1974, §40, Insolvency Act, 1986, §353, Road

Traffic Act, 1988, §5(2), Criminal Justice Act, 1988, §4, Prevention of Terrorism (Temporary

Provisions) Act, 1989, §16A, Trade Marks Act, 1994, §§92(1) (b) and 92(5), Protection from

Eviction Act, 1997, §1(2), Terrorism Act, 2000, §§11(1) and 11(2).

European Convention for the Protection of Human Rights and Fundamental Freedoms,

November 4, 1950, 213 U.N.T.S. 222, Art. 6(2)- “Everyone charged with a criminal offence

shall be presumed innocent until proven guilty according to law.”

Lewis, supra note 63, 668; see also Tadros & Tierney, supra note 2, 403. The principle has

been upheld in several decisions subsequent to the enactment of the Human Rights Act, 1998

such as Lambert and Attorney General where reverse onus provisions were interpreted as

merely imposing an evidential burden on the accused.

62 NUJS LAW REVIEW 5 NUJS L. rev. 49 (2012)

January - March, 2012

The Indian Supreme Court has emphasised both the importance

of the presumption of innocence, as enunciated in Woolmington, as well as its

status as a human right.

The fact that the principle has not been expressly

included as a fundamental right has, however, been used in combination with

the public welfare justification to declare reverse onus clauses constitutional.

It is submitted that neither justification provides support for the constitution-

ality of these clauses, for the reasons analysed above.

In addition, there ex-

ists sufficient reason for making the presumption of innocence a fundamental

right. Since 1978, the Supreme Court has consistently engaged in an expansive

interpretation of Art. 21 with numerous rights having been read into it such

as the right to fair trial and the right against solitary confinement, among oth-

ers.

Specifically, since the presumption of innocence is an integral part of

‘due process’, there exists valid ground for incorporating the principle by vir-

tue of Maneka Gandhi v. Union of India,

which read ‘due process’ into Art.

21. The importance of this principle is also illustrated by its inclusion in vari-

ous Human Rights conventions, such as the Universal Declaration of Human

Rights, 1948 (‘UDHR’),

and the International Covenant on Civil and Political

Rights, 1966 (‘ICCPR’).

Although international conventions are not binding,

both the UDHR and the ICCPR hold immense persuasive value as the Supreme

The Supreme Court has endorsed the principle as propounded in Woolmington in several

cases such as K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605; Vijayee Singh v. State

of Uttar Pradesh, (1990) 3 SCC 190: AIR 1990 SC 1459 and V.D. Jhingan v. State of Uttar

Pradesh, AIR 1966 SC 1762. In cases such as P.N. Krishna Lal v. Govt. of Kerala, 1995 Supp

(2) SCC 187: 1995 AIR SCW 1325; Noor Aga v. State of Punjab, (2008) 16 SCC 417 and K.

Veeraswami v. Union of India, (1991) 3 SCC 655, although Woolmington has been appreci-

ated, reverse burdens have been upheld as being necessary exceptions to the presumption of

innocence.

See Noor Aga v. State of Punjab, (2008) 16 SCC 417.

See supra discussion in Chapter IV(i).

This trend commenced with Maneka Gandhi v. Union of India, (1978) 1 SCC 248 and has

continued in numerous cases. Examples of such cases are Hussainara Khatoon (4) v. Home

Secretary, State of Bihar, (1980) 1 SCC 98: AIR 1979 SC 1369 (right to speedy trial); Zahira

Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158: AIR 2004 SC 3114 (right to fair

trial); Sunil Batra (2) v. Delhi Administration, (1980) 3 SCC 488: AIR 1980 SC 1579 (right

against solitary confinement for indefinite periods).

Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

The Universal Declaration of Human Rights, G.A. Res. 217A, U.N. Doc. A/810 (December 10,

1948), (‘UDHR’) Art. 11(1)- “Everyone charged with a penal offence has the right to be pre-

sumed innocent until proved guilty according to law in a public trial at which he has had all the

guarantees necessary for his defence.”; UDHR, Art. 10- “Everyone is entitled in full equality

to a fair and public hearing by an independent and impartial tribunal, in the determination of

his rights and obligations and of any criminal charge against him.”

International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (December 19, 1966),

(‘ICCPR’) Art. 14(2)- “Everyone charged with a criminal offence shall have the right to be

presumed innocent until proved guilty according to law.”; ICCPR, Art. 14(1)- “All persons

shall be equal before the courts and tribunals. In the determination of any criminal charge

against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair

and public hearing by a competent, independent and impartial tribunal established by law... .”

INTERPRETATION OF REVERSE ONUS CLAUSES 63

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Court has held that constitutional principles must be interpreted in the light of

international declarations/conventions to which India is a signatory.

V. CONCLUSION

Were the Supreme Court to employ Ronald Dworkin’s adjudica-

tive principle of integrity,

in ascertaining the validity of reverse onus clauses,

it would have acknowledged that law consists of a coherent set of principles of

fairness and justice that ought to be consistently applied to equitably determine

the rights of citizens according to like standards.

Dworkin treats legislation

as flowing from the community’s present commitment to a background scheme

of political morality and therefore, all litigants are entitled to be governed by a

consistent scheme of legal principles.

Reverse burdens unequivocally contra-

vene this as they discriminate between individuals accused of reverse onus of-

fences and those accused of non-reverse onus offences solely on the purported

objective of public welfare, denying the former the constitutional guarantee of

equality before law and equal protection of law.

A democratic society like India is structured upon values such as

individual autonomy and dignity. Further, although not explicitly mentioned

in the text of the Constitution, the presumption of innocence is nevertheless a

potent background to the conception of justice in preserving “public confidence

in the enduring integrity and security of the legal system.”

It is these princi-

ples of fairness and justice that reverse burdens have sacrificed in the name of

pursuing pragmatic policy concerns. The notion of integrity would probably

persuade a judge to demonstrate fidelity to such fundamental principles of a

democratic polity that must extend to every individual. Although Dworkin ar-

gues that judicial decisions should be rooted in principle rather than policy,

The Supreme Court has adverted to international conventions and declarations in many cases

to interpret the Fundamental Rights, particularly Arts. 14, 19 and 21. Some of these cases

include Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (where Art. 13 of the UDHR was

used to interpret Article 19(1)); People’s Union for Civil Liberties v. Union of India, (1997) 1

SCC 301: AIR 1997 SC 568 (where the Supreme Court emphasised the importance of consid-

ering international obligations and refers to Arts. 17 and 12 of the ICCPR and UDHR respec-

tively to interpret Art. 21); Sunil Batra (2) v. Delhi Administration, 1980) 3 SCC 488: AIR

1980 SC 1579 (where the Court referred to Art. 10 of the ICCPR and the Declaration of the

Protection of All Persons from Torture and other Cruel, Inhuman or Degrading Treatment or

Punishment and 1975); Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526: AIR

1980 SC 1535 (where the Court referred to Arts. 5 and 10 of the UDHR to interpret Arts. 14,

19 and 21).

ronAld dworkin, lAw’s emPire 218-219, 225-254 (1986).

T.R.S. Allan, Dworkin and Dicey: The Rule of Law as Integrity, 8(2) oxford J. legAl stUd.

266 (1988) (‘Allan’).

Id., 268.

Noor Aga v. State of Punjab, (2008) 16 SCC 417.

Allan, supra note 91, 270.

64 NUJS LAW REVIEW 5 NUJS L. rev. 49 (2012)

January - March, 2012

does not dismiss the fact that a judge will have to consider justifications of both

policy and principle in interpreting a statute.

Developing on this idea, this paper maintains that a compromise

ought to be negotiated between the competing principles of the presumption of

innocence and the policy rationale of public interest. Given that an accused is

entering a criminal trial where the odds are already against him, the presump-

tion of innocence is absolutely vital to ensure that he is given a fair trial and

is not prejudiced against from the outset. The significance of this presump-

tion increases all the more when considered in light of the extremely rigorous

sentences inflicted under the statutes in India, which currently employ reverse

onus clauses.

Following the judicial practice in the UK, this paper submits that

reverse persuasive burdens must be read down to mandatory reverse evidential

burdens which require the accused to raise a reasonable doubt as to his guilt

while the legal burden continues to remain on the prosecution. The legal burden

should always lie on the prosecution to prove criminal liability beyond reasona-

ble doubt. Moreover, considering the gravity of the consequences of a criminal

trial, it is only fair to expect the State to respect the presumption of innocence.

The State cannot be absolved of this liability by virtue of a presumption that

makes the accused a presumptive criminal, wherein he will be convicted even

if a reasonable doubt as to his guilt exists.

In light of the above analysis, it may be concluded that contrary

to the prevailing judicial position, reverse onus clauses are unconstitutional as

they violate the presumption of innocence and contravene fundamental prin-

ciples prevailing in a democratic society enshrined in Arts. 14 and 21 of the

Constitution. Perhaps Indian courts should consider reading down reverse per-

suasive burdens to reverse evidential burdens as a possible compromise between

the individual rights of the accused and pragmatic policy concerns. A criminal

justice system that believes in using reverse burdens in order to promote public

welfare fails to recognise that such a measure is in fact self-defeating and does

not reflect a society that believes in equity and justice. As Paul Roberts writes,

“legal rules relating to the burden and standard of proof in criminal trials pro-

mote individual freedom and are bulwarks against oppression. They are not to

be dispensed with, either directly or by more circuitous means.”

Id., 272.

Roberts, supra note 23, 796.