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Presumption Of Guilt, A Brutal Murder Of Essence Of Free Trial: Unconstitutionality Of Section 29 and 30 Of Pocso Act, 2012

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 proven innocent.

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.

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 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.

Introduction
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.[1]

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 children.

The Ministry of Women and Child Development on Child Abuse in India in 2007 classified few glaring factors:

  1. Around 53.22% children have been reported of facing sexual abuse of one or more forms.
  2. Children on street, children at work and children in institutional care reported the highest incidence of sexual assault.
  3. 50% abuses are by those who are either familiar persons or trustworthy to child
  4. 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.[2]
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 de jure 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[3], 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 presumed innocent.

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[4].
Those are:
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:
  1. 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.
  2. 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.
  3. It would be unjust and unfair to impose the burden of proof on the accused and would cause grave injustice.
  4. 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 Bombay[5] 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 endangered.[6]

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 minimum guarantees  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[7], 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.[8]

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.[9]

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.[10] 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.[11]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 them.

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 vigilante groups.[12]

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.[13] 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.
  1. 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 and equal protection of law.[14] The procedure established even under the special law cannot be arbitrary, fanciful or oppressive.[15] Presumption of innocence is a fundamental principle in the jurisprudence of criminal law.[16]

    Therefore presumption of guilt on an accused is tested on the anvil of state's responsibility to protect innocent citizens.[17] The Hon'ble Supreme Court in the case of Noor Aga v. State of Punjab[18] 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.[19]

    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.[20] The basis here for classification has not been properly laid.

    In L.I.C of India v. Consumer Education and Research Centre[21], 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 constitution.

    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[22] laid down tests to balance the obligation of the reverse burden of proof and protection of rights of accused:
    1. 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.
    2. secondly, the burden should not subject the accused to any oppression or injustice. [23]
    3. 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.[24] 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.[25] 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.[26] 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.[27]
    1. First rape can be committed without harming the genitals.[28] Thus, medical reports are corroborative in nature.[29]
    2. Second, the solitary testament of the child is a satisfactory ground for conviction.[30]

    However, the child, due to his tender age can be easily influenced or tortured to give a false testimony and fabricate a case.[31] 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.[32]
     
  2. 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. [33]

    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[34], 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[35] 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.
     
  3. Article 21 includes the right to fair trial

    It was contended in A.K. Gopalan v. The State of Madras[36] that under article 21, procedure established by law is equivalent to American's due process doctrine[37] 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 and rights.[38]

    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.[39] It guarantees just and fair trial to the accused.[40]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.[41] Article 21 also invalidates the law that are unjust, unfair and unreasonable.[42]State cannot offend fundamentals of just and fair justice entrenched in the custom and integrity of people,[43] as it will result in defilement of the principle of natural justice.[44]
Article 21 anticipates that the Procedure established by law" to be reasonable, just and fair[45] and also the right to fair trial is respected. Furthermore, in the case of Kartar Singh v. State of Punjab[46] , 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 Corporation[47], 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.[48]

Presumption of innocence is the cardinal principle and facet of fair trial under Article 21. In Rattiram v. State of M.P.[49] 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.[50] 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[51] Supreme Court has stated that:
fair trial is a trial in which there is no prejudice or basis for or against the accused.

The normal rule is of presumption of innocence of the accused[52] it is for the prosecution to discharge the legal burden to prove the guilt of the accused.[53] 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 issue.[54]

In the case of Kalyani Baskar v. M.S. Sampoornam[55], 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.[56] 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.[57] 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.[58]

It is an established principle of criminal jurisprudence that crimes of extra grave nature require an advanced gradation of inevitability before condemning the accused.

F. Presumption of guilt with reference to other Laws and Acts in India
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 socio-economic 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:
  1. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

    Various 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[59] 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.
     
  2. The Narcotics and Psychotropic Drugs Act (NDPS), 1985

    According to this act the accused is presumed to have an intension for the possession of drugs, under section 35 of NDPS Act[60], 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.
     
  3. The Essential Commodities Act, 1955

    This 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.
     
  4. The Food Adulteration Act, 1955

    According to Section 19[61] 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.
     
  5. Section 304B of Indian Penal Code, 1860

    Section 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.[62]

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

Conclusion
A valid law or a valid legal system may sometimes be sufficiently evil or unjust that it should not be obeyed.[63]

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 unconstitutional.

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 manner.

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 follows:
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 subtleties.[64]

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 guilt.

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.

End-Notes:
[1] World Health Org. [WHO], Report of the Consultation on Child Abuse Prevention WHO, Geneva, 29-31 March 1999, WHO/HSC/PVI/99.1, https://whqlibdoc.who.int/hq/1999/WHO_HSC_PVI_99.1.pdf.
[2] The Southern Regional Conference on Protection of Children from Sexual Offences Act, 2012 (2013) 5 LW (JS) 29.
[3] Woolmington v. D.P.P,[1935] AC 462 (HL).
[4] Rabindra Kumar Dey v. State Of Orissa, AIR 1977 SC 170.
[5] Tolaram v. State of Bombay, 1954 AIR 496.
[6] Glanville Williams, Textbook Of Criminal Law 929 (2nd ed. 1983).
[7] State v. Coetzee, 1997 (1) SACR 379 (CC) (S. Afr.).
[8] Carolyn Hoyle et al., The Impact of Being Wrongly Accused of Abuse in Occupations of Trust: Victim's Voices, University Of Oxford Centre For Criminology (2016), https://www.law.ox.ac.uk/sites/files/oxlaw/the_impact_of_being_wrongly_accused_of_abuse_hoyle_speechley_burnett_final_26_may.pdf.
[9] Id.
[10] Id.
[11] Id.
[12] Hoyle, supra note 8.
[13] Durga Das Basu, Commentary On The Constitution Of India 970 (8th ed. 2009).
[14] India Const. art. 14.
[15] Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123.
[16] Rajesh Ranjan Yadav @ Pappu Yadav v. CBI, (2007) 1 SCC 70.
[17] Directorate of Revenue and Anr.v.Mohammed Nisar, (2008) 2 SCC 37.
[18] Noor Aga v. State of Punjab and Ors.(2008) 2 SCC 37.
[19] S v. Dlamini, 1999 (4) SA 623 (S. Afr.).
[20] Laxmi Khandsari v. State of Uttar Pradesh, AIR 1981SC 873.
[21] L.I.C of India v. Consumer Education and Research Centre, (1995) 5 SCC 482.
[22] Zahid Mukhtar v. State of Maharashtra, AIR 2017 Bom 140.
[23] M/s Seema Silk and Sarees v. Directorate of Enforcement, (2008) 5 SCC 580.
[24] DhanwantraiBalwantrai Desai v. State of Maharashtra, AIR 1964 SC 575.
[25] Kali Ram v. State of Himachal Pradesh, AIR 1973 SC 2773.
[26] The Protection of Children from Sexual Offences Act, No. 32 of 2012, § 29, https://indiacode.nic.in/bitstream/123456789/20179/4/A2012-322.pdf.
[27] Sahid Hossain Biswas v. State of West Bengal, 2017 SCC OnLine Cal 5023.
[28] Gurucharan Singh v. State of Haryana, (1973) 3 SCC 871.
[29] The Indian Evidence Act, No. 1 of 1872, § 45, https://indiacode.nic.in/bitstream/123456789/2188/4/A1872-1.pdf.
[30] A. Raja v. The State [2015] 2 LW (Cri) 84.
[31] Radheyshyam v. State of Rajasthan, (2014) 5 SCC 389.
[32] Megh Singh v. State of Maharashtra, AIR 1964 SC 575.
[33] M. P. Jain, Indian Constitutional Law 1099 (7th ed. 2016).
[34] M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.
[35] NandiniSathpathy v. P L Dani, AIR 1978 SC 1025.
[36] A.K. Gopalanv.The State of Madras, AIR 1950 SC 27.
[37] Sunil Batra v. Delhi Administration, AIR 1978 SC 1675.
[38] Jain, supra note 40, at 1116.
[39] Hagar v. Reclamation Dist., 111 U.S. 701, (1884); Chambers v. Florida, 309 U.S. 227, (1940).
[40] Maneka Gandhi v. Union of India, AIR 1978 SC 1675.
[41] Jain, supra note 40, at 1116.
[42] Basu, supra note 13, at 316.
[43] Kartar Singh v. State of Punjab, (1994) 3 SCC 569
[44] Javed v. State of Maharashtra, AIR 1985 SC 231.
[45] Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
[46] Kartar Singh v. State of Punjab, (1994) 3 SCC569.
[47] Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545.
[48] Ahmadabad Municipal Corporation v.Nawab Khan Gulab Khan, (1977) 11 SCC 121.
[49] Rattiram v. State of Madhya Pradesh, AIR 2012 SC 1485(1495).
[50] P. Sanjeeva Rao v. State of Andhra Pradesh, (2012) 7 SCC 56 (63).
[51] ZahiraHabibulluah Sheikh v. State of Gujarat, (2006) 3SCC 374.
[52] Francis v. Union Territory, AIR 1981 SC 746
[53] Zahid Mukhtar v. State of Maharashtra, AIR 2017 (NOC 518) 169.
[54] S. V. Joga Rao, Current Issues In Criminal Justice And Medical Laws: A Critical Focus 69-70.
[55] KalyaniBaskar v. M.S. Sampoornam, (2007) 2 SCC 258.
[56] Paul Rodney Hansen v.The Queen [2007] 3 NZLR 1.
[57] Leary v. United States, 395 U.S. 6, (1960).
[58] District Registrar ad Collector v. Canara Bank, (2005) 1 SCC 496.
[59] The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, No. 33 of 1989, § 8, https://indiacode.nic.in/bitstream/123456789/1920/3/A1989-33.pdf.
[60] The Narcotic Drugs and Psychotropic Substances Act, No. 61 of 1985, § 35, https://indiacode.nic.in/bitstream/123456789/1791/1/19561.pdf.
[61] The Prevention of Food Adulteration Act, No. 37 of 1954, § 19, https://indiacode.nic.in/admin/viewcasepdf?type=repealed&id=AC_CEN_12_13_00009_195437_1517807321965.
[62] Pen.Code, § 304-b (1) (Ind.).
[63] See H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harvard Law Review 593 (1958) (first published in 1832), p. 157.
[64] See Glanville Williams, The Proof Of Guilt (3rd ed. 1963).

Written By:
  1. Vishal Bijlani - 3rd Year Students at National Law University Odisha. and
    Email: [email protected]
  2. Sahiba Vyas - 3rd Year Students at National Law University Odisha.
    Email: [email protected]

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