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Time to revisit POCSO? A bold verdict, surely the need of the hour

Law is nothing but common sense shrouded in rules. As the famous quote goes, law has to grow through logic and prudence, but this rationalism is not always equal. There are special crimes to curb which, the prosecution has to be armed with additional weapons, one such legislation which empowers the prosecution is Protection of Children from Sexual Offences Act, 2012. [Herein after referred to as POCSO]. But at the time of arming the prosecution, the accused�s rights are not to be trampled upon, which certainly is the case with the two draconian sections of the said Act.

Section 29 and 30 of the POCSO Act 2012 states the presumption of guilt that is casted on the accused as soon as any prosecution is started under the said Act.

Section 29 of the POCSO Act states: Presumption as to certain offences (Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved) Section 30 of the POCSO Act states: Presumption of culpable mental state:
  1. In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
  2. For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.

    Explanation.--In this section, "culpable mental state" includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.) The provisions are violative of the basic principle of criminal jurisprudence i.e. Every one charged with a penal offence has the right to be presumed innocent until proven guilty according to law.[1]

The very need of this principle is because of the fact that in a criminal trial the entire society is affected and due to which the State is the prosecuting agency, so now if the shield of presumption of innocence is taken away, the accused will have nothing to defend against the mighty State. Further by adding the burden of proof on the accused leads to a very arbitrary situation & grossly violates the principles of fair play.

Landmark English case of Woolmington v. DPP (1935)AII (ERI) the House of Lords observed that:
"Throughout the web of the 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 subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner... the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."

The difference between two nations is to be noted here, Britain is a democracy while India is a democratic republic, the meaning of this term is that the courts have power to strike down any legislation if it is against the scheme of the constitution, to sum it up, the courts have the intrinsic sword of judicial review which the British courts lack as the Parliament is supreme in Britain and no court could strike-off a law adopted by the Parliament.

Hence one of the exceptions to the woolmington judgment in Britain was statutory exception, which in India doesn�t apply as the Indian courts can always scrutinise a law if it is against the basic principles of justice. And clearly by mere First Information Report (F.I.R) against a person he is said to be prosecuted under the POCSO Act, 2012 and the reverse onus is casted, without the prosecution being liable to prove basic facts, this situation is clearly violative of the principles of justice.

Notwithstanding the fact that there are reverse onus clauses in the Indian law, which are seen in Sections 113A, 113B and 114A of the Indian Evidence Act and also in special enactments like the NDPS Act, section 35 and 54 but in all the cases above where the reverse onus clause is inserted, the prosecution is not absolved from proving certain facts to establish a case & then the onus is shifted to the accused

Although there are reverse onus clauses in the Indian law, which are seen in Sections 113A, 113B and 114A of the Indian Evidence Act and also in special enactments like the NDPS Act, section 35 and 54. In all the cases above where the reverse onus clause is inserted, the prosecution is not absolved from proving certain facts to establish a case & then the onus is shifted to the accused.

It may be noted that:
presumptions are rules of evidence & do not conflict with the presumption of innocence of the accused. Burden of the prosecution to prove its case beyond reasonable doubt still remains intact.[2]

In the celebrated case of Noor Aga v. State of Punjab[3], where the constitutionality of reverse onus was challenged, also in Bhola singh v. State of Punjab[4] & Gorakhnath Prasad v. State of Bihar.[5] The court has very constitutionally interpreted the clause of reverse onus in the NDPS Act by stating that there is initial burden on the prosecution to prove beyond reasonable doubt, certain facts which establishes and lays the foundation of the presumption of guilt on the accused, certain facts are vital to establish beyond reasonable doubt by the prosecution in order to shift the onus on to the accused to prove his innocence.

In the present provisions of POCSO Act it is neither expressly stated by the legislation nor any interpretation is given by the Apex court yet. Therefore by mere reading of the provisions the prosecution is not put under any burden to any preconditions that are to be established beyond reasonable doubt in order to shift the burden of proving innocence on to the accused.

So now all that the prosecution is to do is file a charge-sheet (Police Report) against the accused under the provisions of the said Act and then claim that the evidence of prosecution witnesses would have to be accepted as gospel truth and further that entire burden would be on the accused to prove the contrary.

Such a proposition of law or such an interpretation cannot be accepted as it would clearly violate the constitutional mandate that no person shall be deprived of liberty except in accordance with the procedure established by law and interestingly this procedure established by law should be just, reasonable & fair as laid down in the stellar verdicts of Maneka Gandhi v. UOI [6], Ranjeet singh Brahmajit singh v. State of Maharashtra[7] & Francis Coralie Mullin v. Administrator, UT of Delhi.[8] The procedure established by law should not be arbitrary, unfair or unreasonable otherwise it would offend the fundamental right of personal liberty[9].

The author invites the readers' attention to the fact that additionally, the provision being violative of Article 21 and arbitrary in nature, also violates the fundamental right enshrined under Article 14 of the Constitution of India as the scope of Article 14 is very vast and it also includes any State action which is arbitrary, to be violative of Article 14 after the landmark judgement of the apex court in the case of E.P Royappa v. State of Tamil Nadu[10].

The author therefore concludes that Sections 29 & 30 must be interpreted in a constitutional way so as it do not offend any of the fundamental rights of accused and at the same time protect the children from sexual offences. Hence a suitable interpretation to the context is beseeched from the Hon�ble Supreme Court as and when time demands.

It would be a defeat for the Indian Constitution and the Criminal Jurisprudence by large if certain provisions are diluted just for the sake of making the legislation more ghastly and in turn expecting the crime rates to dip. As the crimes would never reduce by stricter laws they would only reduce by proper implementation and staunch enforcement of laws.

Law speaks the same language in the times of war as it does in peace. � Lord Atkin.

  1. Article 11 (1) Universal declaration of Human Rights 1948.
  2. Dhanwantrai Balwantrai Desai v. State of Maharashtra AIR 1964 SC 575.
  3. Noor Aga v. State of Punjab 2008 (56) BLJR 2254.
  4. Bhola Singh v. State 2011 (3) ACR 2408 (SC).
  5. Gorakhnath Prasad v. State of Bihar 2018 (1) ACR 14.
  6. Maneka Gandhi v. UOI AIR 1978 SC 597.
  7. Ranjeetsing v. Brahmajitsing v. State of Maharashtra AIR 2005 SC 2277.
  8. Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors. AIR 1981 SC 746.
  9. Article 21 of the Constitution of India.
  10. E.P Royappa v. State of Tamil Nadu and Ors AIR 1974 SC 555.

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