This paper is based on the contemporary issue relating to the Presumption of
Guilt in Protection of Child against Child Sexual Offence Act, 2012. Presumption
of guilt is contrary to the fundamental principle of Criminal Jurisprudence
which says that accused should be considered innocent until proven guilty
whereas it is a Negative shift where the accused in considered guilty until
This principle is not only against the fundamental principle of
Criminal Jurisprudence but also contrary to the Human Rights. The section 29 and
30 of this act are contrary to Fundamental Rights. Presumption of guilt is a
brutal murder of essence of just and fair trial.
The concept of presumption of
guilt is not only criticised in India but also in England, the researchers from
Oxford University have said that presumption of guilt takes away the basic
feature of Criminal Jurisprudence set by learned judges in landmark cases.
the irony to this can be clearly depicted by the negative shift that has come
into existence in the Indian legal system, one such shift is from presumption
of innocence to presumption of guilt
that prove to be a catalyst for
exploiting the constitutional and human rights of a person merely accused of a
crime that he may never have committed. Section 29 and 30 of POCSO Act 2012 must
be proved unconstitutional and amendments should be made in the best rights of
both the accused and the victim.
The definition of child sexual abuse as coined by World Health Organization is, the involvement of a child in sexual activity that he or she does not fully
comprehend, is unable to give informed consent to, or that violates the laws or
social taboos of society
Protection of Children from Sexual Offences Act,
2012 (POCSO ACT, 2012) exclusively defines as well as fulfils all the required
onuses of India as a signatory to the United Nations Convention on the Rights of
The Child, assented on December 11, 1992 in relation to the crime of sexual
offences against children.
For observing and enactment of the provisions of POCSO ACT, 2012, the Act admonish that the National Commission and State
Commissions for Protection of Child Rights formed under the Commissions for
Protection of Child Rights Act, 2005, shall ensure the effective administration
of the provisions of POCSO ACT, 2012 Act, 2012. On February 7, 2013 Hon'ble
Supreme Court issued a hard-hitting directive, ordering formation of the
regulatory and monitoring bodies to the Indian States.
Around 430 million children reside in India and due to this huge number;
children are a paramount of importance in moving towards a healthy and developed
society. Since independence a jurisprudence concerning children has been
developed in India as their rights are always recognized here. The special
provisions enshrined in the Constitution of India that provide for compulsory
education, to children who fall in the age group of 6-14 years, free of cost,
embargo on engagement of children below the age of 14 years in mines, factories
or any hazardous industries and prohibition of trafficking and forced labor of
The Ministry of Women and Child Development on Child Abuse in India in 2007
classified few glaring factors:
- Around 53.22% children have been reported of facing sexual abuse of one
or more forms.
- Children on street, children at work and children in institutional care
reported the highest incidence of sexual assault.
- 50% abuses are by those who are either familiar persons or trustworthy
- Another very important factor revealed by the study was that most
children are silent about sexual abuse; they do not report this to anyone.
Fear of social stigma, a fear that they will be face apprehension in the
society, an unwillingness to implicate relatives, and other factors
dishearten children and their families to come forward.
Enabling of legislation is the finest way to deal with this problem of child
sexual abuse. One such genuine attempt by the legislators is the enactment of
POCSO ACT, 2012 and to create an environment to empowering and solidifying the
legal provisions for the fortification of children from sexual abuse and
exploitation. According to the intensity of the act may it be sexual assault,
sexual harassment and child pornography proportionate and rigorous reprimand has
been enshrined in the act.
The procedure under POCSO Act, 2012 is quite unacceptable and dejecting as once
a person is accused of abetting or committing or attempting any offence under
section 3, 5, 7 and 9 of the POCSO Act, 2012 and the prosecution is initiated, a
charge-sheet is filed by the police under the above mentioned provisions of the
said act. According to section 29 of there is presumption of guilt for the
accused, by the court, for doing, abetting or attempting the offence of child
sexual abuse and that too beyond reasonable doubt. In case the accused is unable
to prove his innocence he/she has to face severe consequences.
Keeping in mind
the presumption enclosed in Section 29 read with Section 30 of the POCSO Act,
2012 the evidence are taken into account. This section having very wide ambit of
terms and a bare outlook of it indicates that the said section is contrary to
the basic principles of criminal jurisprudence. Section 29 and 30 of the POCSO
Act, 2012 has shifted the basic principle of presumption of innocence to
presumption of guilt.
In this paper we shall discuss about the constitutionality of this
jurisprudential shift and focus on how it is violating the basic human and
constitutional rights of a person who is being accused of a crime under the said
act irrespective of the person being innocent or not.
No human being should be maltreat ted under any circumstances. We are all
wonderful creation of God. May we affectionately love one another.-Lailah Gifty Akita, Pearls of Wisdom: Great mind
B. Basic Principle of Criminal Jurisprudence
In criminal jurisprudence, a person accused of a certain crime is presumed
to be not guilty and innocent. The doctrine of presumption juris sed non
connotes that facts hold good until evidence has been given to contradict them,
it is also known as the general rule of evidence, the said golden/ general rule
of evidence was first introduced in the leading judgement of Woolmington v.
D.P.P, in which House of Lords emphasised that according to fundamental
doctrine of criminal jurisprudence is that a person accused of a crime is to be
Lord Chancellor V. Sankey stated that:
if the jury is left
in reasonable doubt whether act was unintentional or provoked the prisoner is
entitled to be acquitted.
Lord Viscount Sakey
had greatly influenced the
complete conception of criminal jurisprudence:
Throughout the web of English Criminal Law, one golden thread is always to
be seen that it is the duty of the prosecution to prove the prisoner's
guilt, subject to the defence of insanity and any statutory exception. If at
the end of the whole case there is a reasonable doubt, as to whether the
prisoner killed the deceased with malicious intention, the prosecution has
not made out a case and the defendant is entitled to acquit.
The three basic cardinal principles of criminal jurisprudence as observed in the
case of Rabindra Kumar Dey v. State Of Orissa
1. Prosecution to prove its case beyond reasonable doubt;
2. The accused must be presumed to be innocent;
3. The onus of the prosecution never shifts.
The rationales behind engaging the burden of proof upon prosecuting party are:
- As the charges are made by the prosecutor so eventually it is his duty
as the proceedings in a criminal trial before the court are instigated and
structured by the prosecuting side.
- That, the person accused has limited network, work force and resources
to collect evidences as compared to that of the State, who on the other hand
has vast access to such resources.
- It would be unjust and unfair to impose the burden of proof on the
accused and would cause grave injustice.
- It is considered that it is easier to prove a person's positive act as
compared to that of negative acts.
It is believed that if the accused fails to convince the court about his
innocence it will be considered as arbitrary sate action and negligent.
As cited by the Hon'ble Supreme Court in the case of Tolaram v. State of
 If two possible and reasonable constructions can be put upon a penal
provision, the court must lean towards that construction which exempts the
subject from penalty rather than one which imposes penalty. It is not competent
to the court to stretch the meaning of an expression used by the Legislature in
order to carry out the intentions of Legislature.
Coke C.J. said, Acts of Parliament are to be so construed as no man that is
innocent, or free from injury or wrong, be by a literal construction punished or
The Presumption of Innocence is a Human Right
Article 11(1) of UDHR states that there is a right to be presumed innocent until
proved guilty. Article 14(2) of the International Covenant on Civil and
Political Rights mentions the same and it is unqualified because it expressly
imposes restrictions on freedom of thought and expression of conscience and
religion. It provides that the presumption of innocence is an independent right,
which stands distinct from the right to fair trial in article 14(1) and the
in article 14(3). The separation was deliberately adopted
to emphasize on the significance of presumption.
A constitutional court of South Africa equated rights of the accused to have
fair trial with that of effective prosecution of war crimes. They both
constitute the basic humanitarian principles of human dignity, equality and
freedom and every state must follow these rules of humanitarian law whether the
state has ratified these conventions or not because these principles of
customary international law cannot be transgressed.
In State v. Coetzee
, J. Sachs had stated that:
the presumption of innocence exists to protect the constitutional rights of the
individual on trial and also to maintain public confidence in the legal system
that the innocent pre not convicted. The prevalence and severity of a certain
crimes does not add anything new and thus cannot be used as a defence to deny
the individual of the right of presumption of innocence. If this would have been
the case, then all the heinous crimes like murder, rape, drug-smuggling,
corruption and many more such offences would come under the same ambit and
nothing would be left of the presumption of innocence. Thus, this would render
the significance of presumption of innocence useless.
Brennan J. stated that:
when the accused is convicted, he has lot of
things at stake that he will lose his liberty and because of that he would be
stigmatized and ostracized by the community by conviction. Thus the presumption
of innocence is a human right.
In India, judges have interpreted various constitutional provisions in light of
international charters and human rights. Section 29 and section 30 of POCSO ACT,
2012 Act, 2012 is ultra vires the articles of UDHR and ICCPR. It is against the
basic principles of customary international law as well. Article 253, confers
powers on the legislature to make laws in consonance with the international
treaties ratified by India.
International interpretation on Presumption of Guilt
The concept of presumption of guilt is not only criticised in India but also in
England. According to the research of some professors of Oxford University and
some researchers having expertise on criminal justice, many untrue allegations
are instead constructed through therapy, retrospective reflection or rumour, or
through the suggestibility of some witnesses during investigative interviews,
and are believed by their authors to be true.
This is a basic consideration
in both common law and the Human Rights Act that the accused must be considered
innocent until proven guilty. It is argued that for some years the benefit of
any doubt is now more likely to be given to the accuser.
Even in cases where
the evidence only consists of testimony from the alleged victim and is strongly
rebutted by the alleged perpetrator, the moral imperative not to ‘let down
another victim' or to leave a possible sex offender free to cause further harm
may be compelling. This logically reduces the chance of acquittal of guilty
and increase the chances of innocent presumed to be guilt.
According to the figures used by the CPS (Levitt, 2013) if presumption of guilt
remains the basis then in cases of child abuse the accused will be considered
criminal by the society even if he is falsely accused as the society may
exaggerate a non-criminal incidence.
According to some reports victims' accounts are being accepted at face value
as evidence of the guilt of the person accused with little attempt to find
corroborating evidence.Hence presumption of guilt will be an impetus to
miscarriage of justice.
Wrongful accusations and convictions have typical consequences, as those who are
accused to be sex offenders, especially child abusers, have to face the
apprehension of the society and even the blot of social stigma is left on them.
These offenders even have to face much offence in terms of language used against
The names and locations of people reported to be sex offenders are identified
by media reports and registers, exposing them to harassment and pursuit by anti-paedophile
Infringement of Fundamental Rights
Fundamental Rights enriched in the Indian Constitution ensure that everybody is
treated equally. Right to equality gives protection not only against
discrimination, but also protection against arbitrary or irrational act of the
state. But it seems that the word everybody does not include the persons
merely accused of a crime under POCSO Act, 2012.
As the person accused is
presumed guilty and hence has to prove his innocence that means the burden of
proof has been shifted on the accused which is contrary to the fundamental
principles of criminal jurisprudence. Section 29 and 30 of POCSO Act, 2012 are
in violation of Article 14, 20(3) and 21 of the Indian Constitution.
The Presumption of Guilt used in POCSO ACT, 2012 is in violation of
Article 14 Article 14 of the Constitution of India ensures equality before law
protection of law. The procedure established even under the special law
cannot be arbitrary, fanciful or oppressive. Presumption of innocence is a
fundamental principle in the jurisprudence of criminal law.
presumption of guilt on an accused is tested on the anvil of state's
responsibility to protect innocent citizens. The Hon'ble Supreme Court in
the case of Noor Aga v. State of Punjab stated that:
enforcement of law, on
one hand and protection of citizen from injustice in the hands of the law
enforcement machinery, on the other, is required to be balanced.
Article 14 says that classification should be reasonable and not imitation,
elusive or arbitrary. There should be significant peculiarity between things or
people clustered together in the class from others that are left out of it.
Groups of person which are distinguished from other group which has been left
out should reasonably be classified; this is called the rule of intelligible
differentia. With respect to the statute in question which is to be achieved
should have a reasonable nexus with the differentia adopted for the
classification. The basis here for classification has not been properly
In L.I.C of India v. Consumer Education and Research Centre, Supreme Court
has explicitly pressed against over-emphasis on classification. The court has
explained that the doctrine of classification is only a subsidiary rule evolved
by the courts to give practical content to the doctrine of equality, over
emphasis on the doctrine of classification or anxious or sustained attempt to
discover some basis for classification may gradually or imperceptibly erode the
profound potency of the glorious content of equity enshrined in Article 14 of
The over-emphasis on classification would inevitably result in substitution
of the doctrine of classification for the doctrine of equality lest, the
classification would deny equality to the larger segments of the society.
There is not intelligible differentia to prove as to why the accused under POCSO
ACT, 2012 owes a reverse burden and there is no reasonable nexus as to what is
the object to do this differentiation.
Recently, Zahid Mukhtar v. State of Maharashtra laid down tests to balance
the obligation of the reverse burden of proof and protection of rights of
- Firstly, the state is obligatory to establish and prove the foundational
facts on the equilibrium likelihoods, for the presumption of guilt on the
accused to kick in.
- secondly, the burden should not subject the accused to any oppression or
- Thirdly, these balanced facts should not involve a burden to prove
negative and should be within the knowledge of the accused
The sections failed to rationalise the connection between personal
interest of the accused and the welfare of the society. Accused should not be
wrongfully convicted due to fabrication of cases under the grab of child
protection in case of POCSO Act, 2012. However, objective of the state is to
convict the accused for the commission of the heinous crimes on children and act
as a deterrent. Wrongful acquittals shake the confidence of people in the
judicial system but wrongful convictions are far worse and its reverberations
cannot be felt in the democratic society. It has violated the requirements
of intelligible differentia and reasonable nexus.
Section 29 and 30 of POCSO Act, 2012 puts the presumption of guilt on the
accused and it is to be rebutted beyond reasonable doubt. The foundational
facts through the medical reports and the testimony of the child can be proved
by the prosecution for the presumption of guilt to rise.
- First rape can be
committed without harming the genitals. Thus, medical reports are
corroborative in nature.
- Second, the solitary testament of the child is a
satisfactory ground for conviction.
However, the child, due to his tender
age can be easily influenced or tortured to give a false testimony and fabricate
a case. Due to large number of fabrication of false cases, the rational
connection between the imposition of the reverse onus clause and state's
objective cannot be achieved because unless and until the culpable mental state
is negated beyond reasonable doubt, it would lead to conviction.
Right to remain silent under article 20(3)The privilege provided by the criminal jurisprudence against self-incrimination
is a fundamental fact for every act under it. The said principle possess some
fundamental characteristics. Firstly, the accused person is presumed to be
innocent. Secondly, prosecution has to establish the allegations and prove the
guilt of such person. Thirdly, the accused is not bound to say anything against
his will and thus need not make any such statement. 
Silence is equated with innocence and not with adverse inference because an
innocent defendant is not in the condition to take a stand because he feels
incompetent as he may perform badly due to his lack of knowledge about the law
and the experienced prosecutor may be successfully tripping him.
When the presumption of guilt is on the accused and he fails to discharge the
burden, then it will result in his conviction, even if there is reasonable doubt
with regard to his conviction. Failure to provide proper reasons under section
313 of CrPC will also lead to adverse inference against the accused due to the
reverse onus on the accused, the court is bound by law to take it against the
accused, this also leads to the violation of right to remain silent of the
accused, which is a common law principle that conclusion should not be delivered
by the court of tribunal if the accused fails to respond to the questions put to
him by the police or the court.
The Supreme Court in the case of M.P Sharma v. Satish Chandra, has held that
the right to remain silent is a part of right against self-incrimination.
Moreover, such clauses also ignore the legitimate apprehensions an accused may
have about his failure to testify being viewed as conclusive of his guilt. Thus,
it is concluded that reverse onus clause under the POCSO ACT, 2012 Act violates
right to remain silent which comes under the ambit of fundamental rights.
In Nandini Sathpathy v. P L Dani it has been stated in Supreme Court:
the accused has the right to keep his mouth shut and not answer any
questions, especially if they are to expose him to the guilt.
Article 21 includes the right to fair trialIt was contended in A.K. Gopalan v. The State of Madras that under article
21, procedure established by law is equivalent to American's due process
doctrine and therefore, the rationality of Preventive Detention Act and of
any law that affects the personal liberty or one's personal life, must be
justifiable so as to establish that the affected person was given a fair hearing
Due process ensures no individual is deprived of his/ her
property, life or liberty without following the basic rules of jurisprudence for
the security of private rights. It guarantees just and fair trial to the
accused.A well-recognized principle in all modern civilized legal system
interpreted by Fazal Ali J.is procedure established by law in Article 21 as
implying procedural due process, which means no individual should be convicted
unheard. Article 21 also invalidates the law that are unjust, unfair and
unreasonable.State cannot offend fundamentals of just and fair justice
entrenched in the custom and integrity of people, as it will result in
defilement of the principle of natural justice.
Article 21 anticipates that the Procedure established by law" to be reasonable,
just and fair and also the right to fair trial is respected. Furthermore, in
the case of Kartar Singh v. State of Punjab
 , it was held that in order to
establish a procedure to be true, unbiased and fair, it should confirm to the
principle of natural justice. In the same case it was further observed that
process established in Article 21 exhibits the means and technique of
determining this truth.
The power is conferred upon the state to regulate the process for investigating
the crime and collect evidences. The state places the accused offender under
trial as according to its own perception of rules and policies, but even in
performing so the state violates the fundamentals of fair justice entrenched in
the custom and integrity of people; this would lead to gross injustice and would
be characterized as unfair procedure of law.
Such unjust and unfair procedure of law fascinates the vice of unreasonableness,
thereby spoiling the law that requires the process and subsequently, the actions
that follow after it. In the case of Olga Tellis v. Bombay Municipal
, it was held that the substance of the law cannot be divorced
from the procedure it prescribes for, how reasonable the law is depending upon
how fair is the procedure prescribed by it. The procedure prescribed must be
pragmatic and realistic to meet the given fact situation.
Presumption of innocence is the cardinal principle and facet of fair trial under
Article 21. In Rattiram v. State of M.P
. it was held that a ‘fair
trial' is the heart of criminal jurisprudence and, in a way, an important facet
of democratic polity that is governed by the rule of Law.
In P. Sanjeeva Rao v. State of A.P.
 it was held that:
grant of fairest opportunity to the accused to prove his innocence is the object
of every fair trial.
In Zahirav Habibullah & Sheikh v. State of Gujarat
 Supreme Court has stated
fair trial is a trial in which there is no prejudice or basis for or against the
The normal rule is of presumption of innocence of the
accused it is for the prosecution to discharge the legal burden to prove the
guilt of the accused. In case of reverse onus, it is shifted on the accused
and gives rise to prejudice that the accused is guilty, unless the accused
negates the presumption. Legal burden is mandatory presumption of law which
leads to the conviction of the accused, if he fails to prove the fact in
In the case of Kalyani Baskar v. M.S. Sampoornam
, it was held
that denial of right of accused to adduce evidence in support of his defence
amounts of denial of fair trial.
The term until contrary is proved
imposes a legal burden of proof on the
accused and not evidentiary burden. Thus section 29 of POCSO Act, 2012
imposes legal burden on the accused. Also section 30 lays down that there should
be existence of culpable mental state of the accused, and the accused needs to
prove the same beyond reasonable doubt.
Beyond reasonable doubt is a heavy
burden imposed on the prosecution, so that there is no doubt with the
culpability of the accused and hence, no wrongful conviction can take
place. This takes away the basic principle of presumption of innocence of
the accused, which in turn vitiates the fair trial. When the procedure
prescribed by the law is arbitrary, fanciful and oppressive and violative of
article 14, it would be no procedure under article 21 as well.
It is an established principle of criminal jurisprudence that crimes of extra
grave nature require an advanced gradation of inevitability before condemning
F. Presumption of guilt with reference to other Laws and Acts in
Presumption of innocence is one of the basic principles of criminal
jurisprudence India and other countries. However with change in time the
principle shifts towards contrary for certain cases where there is emphasis on
dissuasion. The logic behind this shift is that these crimes are not committed
against a particular person but against the society and thus are termed as
crimes. Accordingly the sentence and penalty for such crimes is
higher than usual.
In such cases the principle followed is presumption of guilt and thus the
accused is presumed to be guilty of the said act until he proves himself
innocent. In India certain acts under which the accused is presumed to be guilty
and has to prove his innocence are listed below:
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989Various kinds of acts were criminalised and punishments were increased, by the
enactment of The Prevention of Atrocities Act, 1989 which were considered to be hate crimes. Section 8 of this act the burden of proof shifts to the
accused and also by the amendment in 2014, a presumption is made against the
accused that, if he is an acquaintance to the family of the victim, he is aware
of the caste or tribe of the victim.
The said act was diluted by the Supreme Court of India in the case of Dr. Subhash Mahajan v. State of Maharashtra, stating that a person cannot be
arrested without due consent and approval of the Senior Superintendent of Police
followed by the Magistrate for further detention.
The Narcotics and Psychotropic Drugs Act (NDPS), 1985According to this act the accused is presumed to have an intension for the
possession of drugs, under section 35 of NDPS Act, unless proven contrary.
Also under section 54 of NDPS Act the court presumes that the person found in
possession of drugs is guilty under this act unless it is proven that the
possession of the drugs was him/ her was valid and legal.
The Essential Commodities Act, 1955This act controls the distribution and control of some commodities that are
essential to the public. If stockholding limit, for a particular essential good
under this act, is notified by the Central Government, all the retailers,
importers and whole sellers are bound by law to stock that particular good to
the limit specified. In case of failure, if the state suspects them, then the
suspect has to prove its innocence beyond reasonable doubt.
The Food Adulteration Act, 1955According to Section 19 of this act any person who is reasonably suspected
to be in possession of a drug, cosmetic or food item which is adulterated is
bound to prove that the suspected material is not adulterated.
Section 304B of Indian Penal Code, 1860Section 304B of IPC, 1860 is contrary to the basic principles of the Criminal
Law as a presumption of guilt is established and the burden of proof shifts on
the accused. The section states that Where the death of a woman is caused by
any burns or bodily injury or occurs otherwise than under normal circumstances
within seven years of her marriage and it is shown that soon before her death
she was subjected to cruelty or harassment by her husband or any relative of
her husband for, or in connection with, any demand for dowry, such death shall
be called dowry death, and such husband or relative shall be deemed to have
caused her death.
Such provisions are contrary to the basic principles of Criminal Law as the
burden of proof is shifted on the accused and has to prove innocence in
different forms. There are a couple of other laws in India that follow the same
principle namely Customs Act, 1962 and Prevention of Corruption Act, 1998.
This shift should be termed negative shift as this constructs a way for the
people to harass innocent persons as has been seen in the recent past. This
leads to supplication of offences especially in the cases related to Atrocities
Act and POCSO ACT, 2012 Act.
It is the time to reconsider the Negative Shift
as the stringent laws hamper
the living condition of an innocent man and makes it hell to live in as society
like India. As Blackstone stated:
It is better that ten guilty persons escape than that one innocent suffer
A valid law
or a valid legal system
may sometimes be sufficiently evil or
unjust that it should not be obeyed.
Presumption of guilt takes away the rights of accused as it is against the basic
principle of jurisprudence and also against Article 14 and 21 of the Indian
Constitution. The constitution of India is known to be the longest written and
diversified document known to be the supreme law of India. The preamble sets the
agenda of this supreme text to protect the interest of the citizen and
non-citizen of the country. But the irony to this can be clearly depicted by the
negative shift that has come into existence in the Indian legal system, one such
shift is from presumption of innocence
to presumption of guilt
that prove to
be a catalyst for exploiting the constitutional and human rights of a person
merely accused of a crime that he/ she may never have committed.
In a complicated judicial system of criminal law where lives are at stake it can
be perilous and dangerous to life to be presumed guilty. When a person is
presumed to be guilty by the judiciary, police and the prosecutor, it becomes
exasperating and onerous, which leads to unjust decisions based on pre-conceived
notions. Hence, Section 29 & 30 of the POCSO act should be held
The POSCO Act must be reviewed periodically on the basis of application and
usefulness. Grounded on the review, government should pursue suitable
modifications in consonance with the rights of the accused cherished in our
Constitution and other international documents.
The police have a crucial role to play in tackling child sexual abuse, as they
are the first point of contact for anyone initiating a criminal case. The
sensitivities required for this role are recognized in the POSCO Act. It is
desired that they are adhered to in letter and spirit. The most difficult ad key
role regarding the safety of general public is vested in the hands of police.
They are required to contribute their efforts towards the management of law and
order in the society, tackle different situations, resolve the problems and
conflicts between the citizens and also depend on them to manage and confront
difficult situations to contend with those who are involved or are accused to be
involved in committing criminal offences.
However, the authority and trust
vested in the hands of police should not be treated as a gateway to victimise
innocent individuals or prey those who belong to subgroups unethically and
unfairly. Authorised personals should not haunt for possible prospects to
encroach upon those who question the working of the authority and in certain
cases innocent have been arrested because the police personal assumed that the
accused happened to glance at them in a desensitizing
The members of the judicial institution can richly contribute towards
strengthening the implementation of this legislation and ensuring the operation
of an efficient, fair and child sensitive justice mechanism. The rule of
Presumption of guilt is in contrary to basic rights concerning liberty.
Glanville Williams, one of the greatest jurists on criminal law has stated as
Where it is said that a defendant to a criminal charge is presumed to be
innocent, what is really meant is that the burden of proving his guilt is upon
the prosecution. Unhappily, Parliament regards the principle with indifference –
one might almost say, with contempt.
The Statute Book contains many offences in
which the burden of proving his innocence is cast on the accused. The sad thing
is that there has never been any reason or expediency for these departures from
the cherished principle; it has been done through carelessness and lack of
In a recent study, The Innocent Defendant's Dilemma, it has been described how
the blameless, particularly those people who are poor, find it very burdensome,
and in fact impossible to prove their innocence. There is lack of defence to
prove themselves and hence they are trapped by a system that presumes their
The accused that is actually innocent and is being victimised spend n
number of years in prison just in hopes to be acquitted which only result in
dejection and helplessness because of their past criminal archives. Many of
those innocent people admit to be guilty when they feel that odds are being
imposed against them and in hopes to avoid death and life term sentence.
The Indian legal system has incorporated a lot of acts and laws for the proper
functioning and protection of its citizen but has failed to focus on the
betterment of a particular set of citizen who belongs to the category of being
accused and suffering for a crime that they have ever committed.
The people who
most suffer for such problem are poor people who do not have enough resources to
have access to the courts and the legal system. So there is a dire need for a
change in the Indian legal system as assuming a person to be guilty of a crime
by the police and court creates a notion in the mind of the people and it
becomes next to impossible for the accused to prove its innocence.
 World Health Org. [WHO], Report of the Consultation on Child Abuse
Prevention WHO, Geneva, 29-31 March 1999, WHO/HSC/PVI/99.1,
 The Southern Regional Conference on Protection of Children from Sexual
Offences Act, 2012 (2013) 5 LW (JS) 29.
 Woolmington v. D.P.P, AC 462 (HL).
 Rabindra Kumar Dey v. State Of Orissa, AIR 1977 SC 170.
 Tolaram v. State of Bombay, 1954 AIR 496.
 Glanville Williams, Textbook Of Criminal Law 929 (2nd ed. 1983).
 State v. Coetzee, 1997 (1) SACR 379 (CC) (S. Afr.).
 Carolyn Hoyle et al., The Impact of Being Wrongly Accused of Abuse in
Occupations of Trust: Victim's Voices, University Of Oxford Centre For
 Hoyle, supra note 8.
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- Vishal Bijlani - 3rd Year Students at National Law University Odisha.
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- Sahiba Vyas - 3rd Year Students at National Law University Odisha.
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