Down the rabbit hole with Mob-Lynching?: Making the case for a reverse onus clause
- Tanishk Goyal and Rishabh Singh*
On 3rd June 2019, a 39-year-old man was lynched to death by a mob in Jalandhar, Punjab for allegedly having raped a minor girl. Three weeks later, a 24-year-old man was targeted by a mob in Jharkhand for allegedly having committed theft. However, this is not the first instance when there has been a breakdown of the law and order situation, with impulsive crowds having taken the law into their own hands.
To give an empirical overview of the situation, the period between 2010-2017 saw a total of 28 killings in 63 such incidents of mob violence. Interlinking these instances with the reasons for their perpetration, we find that over the course of the past five years, men and women have been lynched for their choices in food, or after a spat over an auto ride, or in some cases, even for WhatsApp rumours.
The lynching situation in India is growing every day and this is evident from the fact that there is growing concern for having a separate anti-lynching legislation in the country. The Supreme Court’s recent recommendation in the case of Tehseen S. Poonawalla v Union of India to enact a separate anti-lynching legislation speaks volumes of the impact and rife nature of lynching. The guidelines laid down by the Supreme Court to tackle the menace of mob lynching were essentially recommendations that reiterated the fact that the Union and the States have an onerous duty to ensure that such instances of mob violence and vigilantism are curbed. However, it is pertinent to note here that the essence of these guidelines can only be realized if the Parliament or the respective State Legislatures actually legislate on them with the objective of having an anti-lynching legislation in the country. The proposition that there should be a separate anti-lynching legislation as opposed to requiring statutory inroads into existing criminal legislations involves a long-running debate which has been excluded from the scope of this paper. This essentially restricts the scope of this paper to making the case for a balanced reverse onus clause in the anti-lynching legislations which are being enacted pursuant to the guidelines and recommendations given by the Supreme Court.
The guidelines and recommendations given by the Supreme Court are considered a welcome step, inasmuch as various states have already begun to draft anti-lynching laws. Manipur has been the first State to bring out such a law. However, it is pertinent to note here that there still exists a lacuna in the jurisprudence regulating the relationship between mob-lynching and the threshold of the standard of proof required in order to prove the same. This lacuna is amply illustrated by the recent judgment of a Rajasthan Trial Court in the case of Pehlu Khan’s lynching, which took place on 1st April 2017. For instance, in Pehlu Khan’s case, the mob was given a benefit of doubt by the Court and acquitted despite the presence of video evidence against the accused. This is because the prosecution was unable to prove, beyond reasonable doubt, certain facts which were inevitably within the special knowledge of the defence. This included, inter alia, the link that existed between certain facts such as the call detail records (‘CDR’) of the accused (which would necessarily have been within the special knowledge of the defence) and the commission of the offence by the accused persons.
Against the backdrop of this lacuna which exists in the relationship between the crime of mob-lynching and its punishment, we make a case for incorporating a balanced reverse onus clause in such anti-lynching legislations. The clause would run along the lines of the test laid down by Justice Gupta, in the case of Sheikh Zahid Mukhtar v State of Maharashtra (Explained in Part III). We argue that a balanced reverse onus clause could possibly help in ensuring a better conviction rate for the perpetrators of such offences. In any case, it could ensure the existence of a mechanism which possesses the potential to significantly deter mob lynching. This is essentially because of the fact that such a clause instates a mechanism in the process which strikes at the root cause of mob violence, which is the mob’s absence of fear of being held accountable for its actions.
This clause would depart from the cardinal principle of presumption of innocence of the accused. It would, however, leave it to the discretion of the court to shift the burden of proof on the accused, depending on the elementary facts established by the prosecution. It would concurrently ensure that the accused is not required to prove negative facts or subjected to disproportionate hardship and oppression by the prosecution.
We suggest a balanced reverse onus clause due to the grave and pervasive nature of these offences which makes it necessary to dispense with the burden of the prosecution. Courts are vested with the enormous responsibility of maintaining the purity of the social conscience of society. In light of this, merely increasing the quantum of penalty - which has ostensibly been sought as an alternative to reduce such crimes - cannot be regarded as the sole criterion for ensuring deterrence. The quantum of penalty which is common to all the offences falling under a specific section of a Penal Law, like murder, cannot be equated with offences like mob lynching. This is because it would escalate the degree of culpability attached with murder to the proportion of extreme depravity. This renders it impossible to equate the penalties for the two offences.
In such a case, a balanced reverse onus clause would ensure that although the burden to prove his/her innocence lies on the accused, there are still certain elementary facts that are required to be proved by the prosecution. The clause would thus achieve a two-fold objective. While on the one hand, it would preserve the non-derogable civil rights of the accused, on the other, it would ensure a befitting conviction rate for the perpetrators of such crimes. This would go a long way in instilling the necessary deterrence and veneration for the command of law which in turn forms the bedrock of a civilized society.
In Part I, we start by apprising the reader of the nature of the offence of mob-lynching and why, therefore, the law mandates the incorporation of a reverse onus clause to deal with the same. In Part II, we give a brief history of the existence and use of a reverse onus clause under Indian jurisprudence, essentially highlighting the nature of offences in which the clause has been used. Part II seeks to corroborate the need of having the same in cases of mob lynching, as explained in Part I. In Part III, we seek to settle the narrative regarding the unconstitutionality of a reverse onus clause. We use existing case law to apprise the reader of the methodology which could be used to implement the same. This is done so as to prevent the alleged misuse and curtailment of liberty that such clauses generally bring with them. We conclude by highlighting how the incorporation of a reverse onus clause to the guidelines would make them exhaustive, which in turn would act as a deterrent for people in the times to come.
I. The nature of offences requiring a reverse onus clause
The Malimath Committee had, inter-alia, recommended that the reversal of the burden of proof was required to tackle the socio-economic problems, terrorism, grave offences, and organised crimes which necessitated a higher conviction rate. The Committee felt that in the cases of grave offences like terrorism, the accused should be required to assist the court in the discovery of truth. However, an umbrella term like ‘grave offences’ may not be sufficient enough to establish the nature of offences where the use of such clauses may be justified.
Over the course of the past few years, the reverse onus clause has been used for certain select offences. These offences are essentially of the nature where the prosecution faces the difficulty of discharging the legal burden as certain matters are peculiarly within the special knowledge of the defence.
For instance, under any anti-terrorist legislation (the Unlawful Activities (Prevention) Act (UAPA), in case of India), the evidentiary burden with respect to the reason for possession of a weapon in a public place is on the defence. This is essentially because the state of mind which led the accused to carry an illegal weapon in a public place is a matter which would be peculiarly within the knowledge of the person who has been charged under the said legislation.
Similarly, in a case of mob-lynching, the culpable state of mind of the accused person(s) which led them to strong-arm the victim and eventually lynch him/her, the reason why they believed that the use of force on the victim in a public place was justified, and the reason why they possessed weapons like hockey sticks or iron rods are some matters which would unequivocally fall within the special knowledge of the defence.
However, special knowledge cannot be looked at in isolation as the sole criterion for determining the nature of the offence. This is because doing so would dispense with the mandate of presumption of innocence in every case which is reported. This departure from the cardinal principle of criminal law is untenable. Therefore, the special knowledge criterion needs to be looked at in harmonious construction with other sociocultural and institutional factors such as power asymmetries which have been explained forthwith.
The nature of the offences also includes those offences which might not usually get reported to the authorities due to power asymmetries, socio-cultural and institutional factors, devaluation of one’s self-identity, or a general fear of societal backlash. For instance, notwithstanding the fact that incidents of sexual violence against women are highly underreported, the rape of a minor girl is relatively a lesser reported crime as compared to the rape of an adult woman. This is essentially due to the fact that in the former case, the nature and circumstances of the crime are such that the offender is usually a family member or acquaintance. Thus, the fear of being further victimised deters any reporting. Even if it is assumed that there were no power asymmetries involved and the offence was reported to the authorities without any irregularities, the prosecution would still find it difficult to discharge the legal burden which has been cast on it. This may be due to a variety of factors which may include the reluctance of the witnesses to come forward and testify owing to the power asymmetries which are at play within the family. Similarly in the case of mob-lynching, owing to the power asymmetry involved, it may become difficult for the prosecution to discharge the legal burden even when the act of the perpetrators so evidently illustrates their guilt.
For instance, when a person is lynched by the members of a relatively influential and powerful community, the implication which follows is that the witnesses may not be willing to testify against the members of their own community. This may be due to the fear of being ostracised or looked down upon by members of their community. Moreover, the witnesses who belong to the community which is at the receiving end of such atrocities might not testify due to the fear of getting lynched for having come forward in the first place. This illustrates the two opposite ends of the power spectrum which govern the socio-cultural ethos of the Indian subcontinent.
Thus, the reluctance of witnesses to come forward and testify due to the power asymmetries involved and the peculiarity of certain matters being within the exclusive knowledge of the accused, as illustrated above, make it difficult for the prosecution to discharge the legal burden. This is why the incorporation of a reverse onus clause is even more imperative in the current scenario. A balanced reversed onus clause could thus ensure that a failure of justice does not occur due to such power and knowledge asymmetries which ultimately end up favouring the accused even in a court of law.
It is acknowledged that a separate structure or an objective criteria which determines what nature of offences would attract a reverse onus clause has not been laid down by Indian Courts. However, firstly, the statutes and cases discussed in Part II primarily illustrate the nature of offences where reverse onus clauses have been used. Secondly, they also corroborate the fact that the introduction of a reverse-onus clause might be a step towards establishing a more concrete system to combat the widespread social evils which form the very backdrop for such offences.
II. The Reverse Onus Clause under Indian Jurisprudence - A brief history
The constitutionality of a reverse onus clause under Indian jurisprudence has often been questioned on the grounds of Article 21 of the Constitution of India and other international conventions.
However, there exist multiple statutes and cases under Indian as well as international jurisprudence which uphold the validity of such reverse onus clauses despite the existence of legislations and treaties to the contrary.
This is essentially due to the nature of the offences so committed, which mandates the prosecution to shift the legal burden on the accused. However, it is pertinent to note here that the reversal of the burden of proof only steps in at the time of trial. The implementation of the clause would thus rest on the fundamental assumption that a fair investigation of the matter has been conducted. The reverse onus clause cannot be sought as a substitute to a shoddy investigation, which in turn would mean holding the accused liable for the inadequacy and inefficiency of the investigation agencies. The Supreme Court, while laying down the recommendations for a separate law for the offence of mob-lynching in Tehseen Poonawala, also explicitly laid down investigation guidelines to be followed by such agencies to ensure that the accused is not scapegoated by the police. Hence, a thorough investigation process would necessarily have to form a fundamental prerequisite for the trial to begin in the first place. The reversal of burden in the trial ensures that merely because the prosecution is having difficulty in proving certain matters, the accused does not walk scot-free for having committed an offence which is indicative of his/her guilt and inherently harmful for the State.
For instance, The Protection of Children from Sexual Offences (POCSO) Act 2012 was brought into force in an attempt to tackle the increasing threats of sexual offences committed against children. It incorporated a reverse onus clause in the form of Section 29 of the Act. This was essentially done because the legislature felt that there was an imperative need to lighten the burden and vulnerabilities on already vulnerable children who are victims of sexual offences.
Furthermore, in Sections 113A and 113B of the Indian Evidence Act, there is a presumption regarding the abetment of suicide and dowry death, which is another social evil that plagues the Indian Society. In the case of Krishan Lal and Ors v Union Of India and Ors, the Court upheld the constitutional validity of the above sections read along with Section 304B of the Indian Penal Code, citing the grave and rampant cases of dowry death amongst women. The Court went on to say that the reverse burden was socially defensible because it sought to achieve the eradication of the evil of dowry in the Indian social set up and to ensure that married women live with dignity at their matrimonial home.
Another aspect of our social fabric which required the introduction of a reverse onus clause was terrorism. For this, the Unlawful Activities (Prevention) Act 1967 (UAPA) was enacted with the objective of incorporating the reverse onus provisions of both its predecessors, the TADA and the POTA. Section 43E of UAPA brings in stringent penalties for inherently harmful offences and places a reverse burden on the accused in respect of his prosecution under Section 15 of the UAPA. Section 15 essentially relates to terrorist activities which threaten the sovereignty of the country. It is very evident that for offences under Section 15, the prosecution would be justified in dispensing with its burden. This is against the backdrop of the special knowledge of the defence and the inherently harmful nature of the offence which shocks the collective social conscience of the society.
Thus, the above statutes and select clauses appropriately illustrate the fact that for offences, the nature of which is such that it is prima facie indicative of the accused person’s guilt and so inherently harmful for the society at large, the use of reverse onus clauses as a primary means of ensuring deterrence may not be wholly unjustified.
We do acknowledge that a number of counter-arguments can also be made. For instance, one may argue that it can become difficult for the accused to prove his/her innocence when he/she does not have any of the mechanisms to prove such innocence. It may also be argued that all the investigative powers are with the State and that the accused does not enjoy any of these. Hence, it would become difficult for him/her to prove his/her innocence while he/she is pitted against an all-powerful State. This, in turn, would result in his/her socio-economic marginalisation since the accused often come from the lower socio-economic rungs of society. However, it is pertinent to note here that a balanced reverse onus clause leaves it to the discretion of the courts to dispense with the presumption of innocence of the accused with the standard of proof which requires ‘preponderance of probabilities’ instead of ‘beyond reasonable doubt’. It is also pertinent to note here that a balanced reverse onus clause would function along the lines of a ‘may presume’ clause as opposed to the conventional ‘shall presume’ clause according to the definition as given in Section 4 of the Indian Evidence Act. This essentially means that it is for the courts to decide whether the nature of the offence is such that it would be in the interest of justice to dispense with the requirement of the prosecution to discharge certain legal burdens and shift them on to the accused. The balanced reverse onus clause thus takes a two-fold approach. It requires the prosecution to establish certain elementary facts constituting the offence, as explained later in Part III. But it also provides sufficient discretion to the court to independently apply its mind to the case and decide on the kind of presumption it wants to draw.
Furthermore, the said clause neither puts any bar on the right of appeal or the right of bail of the accused. This ensures that the accused is not left remediless even when the presumption of the court is against his/her innocence. A balanced reverse onus clause therefore prevents any kind of imbalance between the civil rights of the accused and the civil rights of the victim. It also concurrently ensures that a power asymmetry between communities and a mere lack of substantive evidence does not preclude the administration of justice for an offence which so fundamentally shocks the conscience of the society.
III. Determining the Constitutionality of reverse onus clauses
The reverse onus clause has been criticised on multiple occasions for violating the cardinal principle of presumption of innocence of the accused. However, the Supreme Court, in a number of decisions, has upheld the constitutionality of the same. This has especially been seen with respect to offences whose implications have a bearing on the socio-cultural ethos of the society. For instance, in the case of Sheikh Zahid Mukhtar v State of Maharashtra, the Court held that Section 9B of the Maharashtra Animal Preservation Act (which had the provisions of a reverse burden on the accused) was unconstitutional and therefore liable to be struck down. However, while rendering Section 9B of the Act unconstitutional, the Court had explicitly stated that there was no need to have a reverse onus clause for an offence such as the sale, purchase or consumption of beef which ‘carries no intrinsic harm or threat to the society’ as opposed to an offence which does- for instance, the consumption of drugs.
In the case of Noor Aga v State of Punjab, while upholding the constitutionality of reverse onus clauses, the Court held that ‘limited statutory inroads on the question of presumption would be justified.’
Similarly, in the case of Federation of Obstetrics and Gynaecological Societies Of India(FOGSI) v Union of India, the Court deliberated on the constitutionality of the reverse onus clause contained in Section 4(3) of the Pre-Conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994. It held that the evil of female foeticide was tremendously infamous internationally and the legislation so brought in was based on reports, common knowledge, and a demonstrated history of the practice. Accordingly, it came to the conclusion that Section 4(3) of the Act did not suffer from any illegality or arbitrariness and was constitutionally valid.
In any case, it is not our contention to have a reverse onus clause which absolutely dispenses with the burden of the prosecution as this would be a blatant disregard of the civil rights of the accused. Our suggestion of having a reverse onus clause fundamentally rests on the principles which test the constitutionality of a reverse onus clause. This was enumerated by Justice Gupta in his separate opinion in the case of Sheikh Zahid Mukhtar v State of Maharashtra. It acknowledges the fact that there is a need to strike a balance between the non-derogable civil rights of the accused and inculcating the necessary deterrence in society against the commission of offences of such a nature.
A recent Calcutta High Court judgment in the case of Subrata Biswas & Another v State of West Bengal also amply illustrates the same proposition with respect to a balanced reverse onus clause. It makes it sufficiently clear that even in cases under statutes where there exists a reverse onus clause, the prosecution cannot be completely absolved of its duty to establish and/or demonstrate primary facts constituting the offence. This ruling was against the backdrop of Section 29 of the POCSO Act, which places a reverse burden on the accused for having committed an offence under Section 5 and Section 9 of the Act.
The judgment was perhaps a step towards developing the right jurisprudence as it embodied the spirit of having a balanced reverse onus clause. It acknowledged the fact that it is imperative to have stringent laws for offences which blatantly violate the socio-legal ethos of the State and at the same time it is necessary to preserve the basic civil rights of the accused.
This methodology is essentially what we seek to incorporate in the guidelines laid down by the Supreme Court, so that the purpose for which such guidelines were enacted is met.
On the lines of the above proposition, an illustrative reverse onus clause that could be incorporated in the guidelines in general or in the separate law which each State brings out could be as follows:
‘Presumption as to causing grievous hurt, or death by a mob: Where a person is being prosecuted for committing or abetting or attempting to commit the offence of lynching as a part of a mob, the Court, after the prosecution has discharged the initial burden of proving the facts of the case, may presume that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved’.
The above clause fulfils all the essential requirements of a balanced reverse onus clause, as laid down by Justice Gupta in the case of Sheikh Zahid Mukhtar v State of Maharashtra:
a) It requires certain elementary and foundational facts such as the presence of the accused at the crime scene and the possession of weapons etc to be proved by the prosecution. This has to be done in order to raise a probative connection between the fundamental facts and the facts sought to be presumed;
b) It provides sufficient discretion to the court to independently apply its mind to the case and decide on the kind of presumption it wants to draw. This ensures that the accused is not strong-armed by the prosecution into proving a negative fact, failing which the court would be mandated to draw an adverse inference against him. These negative facts such as the burden to prove that the accused did not know that it was his blow or his infliction of injury which became the immediate cause of death of the victim are not required to be proved by the accused.
c) It ensures that the information which is within the special knowledge of the defense, such as the inexistence of a culpable state of mind, is dispensed with, so that the process of discovery of truth by the court is not hampered.
d) It limits the exercise of point (c) by the prosecution to the threshold where the accused is not subjected to any disproportionate hardship or oppression by the prosecution or is asked to prove the impossible.
It is pertinent to note here that mandating the accused to prove the inexistence of a culpable mental state is not mandating him/her to prove a negative fact. Instead, such a requirement essentially mandates him/her to dispense any information which falls within his/her special knowledge. This is the third element of Justice Gupta’s separate opinion in the case of Sheikh Zahid Mukhtar v State of Maharashtra. However, this requirement to dispense any information which falls within the special knowledge of the accused is fettered by the prosecution’s ability to lay out the foundational facts of the case as described above.
For instance, consider a particular case where the court infers from the prosecution’s foundational and elementary evidence that the accused could not have reasonably had the knowledge or the required intention to commit the offence. In such a scenario, the burden cast on him by such a balanced reverse onus clause would stand discharged. Now, the court may not presume the culpable state of mind of the accused and subsequently continue the trial on the presumption of his/her innocence. This discharge of the accused on the inability of the prosecution to lay out even the elementary and foundational evidence would be irrespective of the fact as to whether the accused has adduced any other evidence of his own or not.This ensures that the accused is not put in a position where he/she is asked to prove the impossible. It further ensures that the accused is not subjected to any hardship or oppression by the prosecution. This also satisfies the fourth requirement of a balanced reverse onus clause as articulated by Justice Gupta in his separate opinion in the Zahid Mukhtar case.
A balanced reverse onus clause for the offence of mob lynching would therefore ensure that the sacrosanct right to life and equality of the accused persons are preserved. This is because the burden of drawing the probative connection as mentioned above is being discharged by the prosecution. Additionally, it would ensure that there exist certain mechanisms which subject the accused person(s) to a higher due process requirement and which possess the potential to create the necessary deterrence in society for offences which are intrinsically against the wellbeing of the State.
IV. The Afterlife of a balanced reverse onus clause - Addressing a larger systematic problem of access to justice
Incidents of mob-violence are still being blatantly committed without any fear of the rule of law. However, pursuant to the Supreme Court guidelines, states are eventually beginning to enact anti-lynching legislations.
The introduction of a balanced reverse onus clause into the anti-lynching law of any state could further possibly instil the necessary deterrence in the society. This is because it effectively strikes at the root cause of mob violence, which is the absence of fear in the mobs of being held accountable for their actions. Thus, the reverse onus clause possesses the potential of instilling such fear in the mobs by ensuring the existence of a mechanism which subjects them to an increased level of scrutiny from the rule of law. It concurrently dispels any false notions they have about their acquittal based on the weakness of the prosecution’s case.
The said clause may have the potential to ensure the exercise of an effective deterrence policy by the State, thus sending out a stern message to the perpetrators of such offences and restricting such incidents in the times to come. However, this potential is circumscribed by a fundamental systematic problem that exists with the socio-legal ethos of India. The systematic problem essentially pertains to the fact that access to justice and general awareness about the laws is limited only to the elite section of the society. The basic assumption on which punitive measures under any jurisdiction rest is the fact that they will be similarly applied to the rich and the poor, thus causing the necessary deterrence they intend to cause. Therefore, unless sincere efforts are made to publicize these legislations, there is only little as to what a reverse onus clause can do in order to curb the menace of mob-lynching.
*Tanishk Goyal and Rishabh Singh are 2nd year undergraduates at the West Bengal National University for Juridical Sciences, Kolkata and Faculty of Law, Allahabad University respectively. They would like to thank the editors of the Socio-Legal Review for their invaluable comments and suggestions on the previous drafts of this article. They would also like to thank Laksh Kawatra for his assistance in writing this piece.
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 Since a balanced reverse onus clause has never been used in the practical sense, we do not possess any statistical data to assert that the clause would ensure that the necessary deterrence in the society is created. We can however, predict that such a clause ensures the existence of a mechanism, which in turn can possibly deter the subsequent commission of offences of such a nature. It is for this reason, that more emphasis has been given to the potential effects of the clause on the socio-legal ethos of the society.