- Shreedhar Kale*
The Protection of Children from Sexual Offences Act, 2012 [hereinafter “POCSO”] was enacted with a broad objective to prevent the exploitation of children and child sexual abuse. It was also accompanied by the belief that a strong prosecutorial mechanism is essential for these crimes to be tackled. To this end, it introduced a slew of measures aimed at simplifying the prosecutorial burden in cases dealing with this issue, including the establishment of Special Courts to deal with offences under the Act. Also worth noting are the two presumptions provided under s. 29 and s. 30 of the Act. Under s. 29, when a person is charged under the POCSO, he is presumed to have committed the offence.[1] Similarly, s. 30 presumes that a person charged under the Act had the culpable mental state necessary to commit the offence.[2] While these presumptions can go a long way in simplifying the burden of the prosecution, it is seen that their application is less than satisfactory.[3] One of the reasons for this, I believe, is the lack of guidance provided by the higher judiciary in their interpretation. This lack of guidance then allows a number of other factors to prevent a meaningful application of the presumptions. These include an entrenched belief in tenants of criminal law,[4] or the effect of patriarchy in Court.[5] The purpose of these presumptions, and the interpretation given by the Court would, in fact, serve to nullify the presumption under the Act.
In this post, I argue that the current interpretation of the presumptions under the POCSO totally nullifies their effect. I will begin by laying down the law on presumptions in general as well as the interpretations of the presumptions under the POCSO. I will then look at certain alternate interpretations and try to suggest one that best fits the legislative model of the POCSO.
Noor Aga and the Current Position of Law
The current position regarding the validity of reverse onus clauses can be seen in Noor Aga v. State of Punjab.[6] This decision dealt with the constitutionality of reverse onus clauses present in the Narcotic Drugs and Psychotropic Substances Act, 1985 [hereinafter “NDPS”].[7] The Court, in Noor Aga, relied on a number of decisions of its own,[8] to hold that the presumption of innocence is not an absolute right. The Court held that reverse onus clauses may be valid, though in some cases, there may be certain qualifications required to give them this validity. Thus, the Court held that reverse onus clauses are not ex facie unconstitutional. To determine when a reverse onus clause would be valid, the Court relied heavily on one scholarly article.[9] The Court cites the article and states that the factors mentioned therein would be the touchstone on which such clauses will be tested. The relevant extract is as follows:
In determining whether a reverse burden is compatible with the presumption of innocence regard should also be had to the pragmatics of proof. How difficult would it be for the prosecution to prove guilt without the reverse burden? How easily could an innocent defendant discharge the reverse burden? But courts will not allow these pragmatic considerations to override the legitimate rights of the defendant. Pragmatism will have greater sway where the reverse burden would not pose the risk of great injustice - where the offence is not too serious or the reverse burden only concerns a matter incidental to guilt. And greater weight will be given to prosecutorial efficiency in the regulatory environment.[10]
Thus, the test to determine when a reverse onus clause, which presumes the guilt of the accused is valid is when legitimate rights of the accused are balanced against the pragmatics of proof viz. how difficult would it be to prove guilt without reverse burden and how easy it would be for the innocent defendant to discharge the reverse burden.
The Court then dealt with the question of whether foundational facts are required to uphold the validity of reverse onus clauses. These are facts, which may need to be proven in order to invoke a presumption. The Court had already opined that any reverse burden clause would constitute an intrusion into the right to a presumption of innocence of the accused. It held that requiring proof of foundational facts before invoking the presumption would dilute this intrusion. Dealing with the question of foundational facts, the Court opined, “Provisions imposing reverse burden, however, must not only be required to be strictly complied with but also may be subject to proof of some basic facts as envisaged under the statute in question.” (emphasis supplied). It is important to note the use of the word ‘may’ in the quote above. It is, therefore, possible to argue that if on an application of the test laid down above, the Court holds that the presumption is valid as is, there may not be a requirement for further foundational facts to be proven at all.
Finally, with regard to the standard of proof required in cases of presumption, the Court held that the burden on the prosecution to prove foundational facts would be ‘beyond reasonable doubt’, whereas the defendant would only have to rebut the presumption on a preponderance of probabilities. This assertion has recently been upheld by the Supreme Court in the case of Naresh Kumar v. State of Himachal Pradesh.[11]
Biswas and the Dilution of the Presumption
Recently, in Sahid Hosain Biswas v. State of West Bengal,[12] the Calcutta High Court had to interpret the presumptions under the POCSO. The Court stated that there was ‘trite law’ that it is impossible to prove a negative, in order to hold that, all facts that must be disproved must first be proved.[13] This broad statement itself seems to be incorrect as the Supreme Court has clarified that though proving a negative is difficult, it is not impossible.[14] The High Court does not give any guidelines as to what the foundational facts in question should be and does not even refer to Noor Aga. In the absence of any specific mention of foundational facts, it is safe to assume that the Court meant that all facts that are to be disproved under the presumption must be proved. Reading this interpretation of the POCSO with the decision in Noor Aga and Naresh Kumar, we have a situation where all the facts under the POCSO have to be proved beyond reasonable doubt. This is a patently dangerous interpretation to adopt.
To understand why, the scope of facts under the POCSO needs to be seen. There are two major factors that are usually required to be proved in a POCSO trial. The first is the minority of the victim. This would be necessary, as it is a prerequisite for a charge under the POCSO. The second, of course, would be the actual commission of the offence. The consent or otherwise, of the minor would be irrelevant, as it is not a factor that is required to be proved under the POCSO. The only facts that need to be proved to secure a conviction under the POCSO are therefore, minority and commission of the offence. The judgment in Biswas seemingly makes both these factors foundational facts. The moment these will be proved, the offence will be established. Reading Biswas and Noor Aga together, we reach a position where the guilt of the accused is proved the moment the foundational facts are proved. This is unlike other reverse onus clauses. For example, under the NDPS Act, the presumption shifts after the prosecution proves conscious possession and recovery of the drugs. The defence has to then disprove that the accused had knowledge of the said drugs.[15] In rape cases, the presumption under s. 114-A of the Indian Evidence Act, 1872 would apply after sexual intercourse is proved. The defence then has to disprove the fact of consent.[16] In both cases, there are other ingredients of the offence, which are presumed after the foundational facts are proven. If the interpretation in Biswas is applied to the POCSO, there will be no ingredients to be proved after the presumption is triggered. Thus, the presumption under the POCSO will lose all its meaning.
Thus, in the absence of a Supreme Court decision that interprets the presumption under the POCSO, it would seem to be a folly to adopt an interpretation, which would completely go against the spirit of the presumption. As pointed above, other High Courts have applied the presumptions, though none have interpreted the statutory requirements for the same.[17] The Bombay High Court in Yogesh Maralv. State of Maharashtra,[18] hinted at the unconstitutionality of these presumptions. However, it did not examine the merits of the argument as the case before it did not require it to. This is unfortunate, as it could have provided some sort of guidance as to the application of the presumption.
Restoring the Presumption
Given the law as it stands today, it is important to provide clarity on the application of the presumptions while keeping in mind the purpose of the POCSO. This clarity can be achieved through three ways. First, it could be argued that they are valid as is. Second, it could be argued that only one of the two foundational facts in question would be required to be proved before the presumption is triggered. Finally, we could argue that the current scenario is the only way in which the presumption can be validly applied.
Having already shown how the third interpretation will nullify the presumption completely, I will not be discussing it further. The first possibility would mean that an accused is presumed guilty from the moment he is charged until he proves his innocence on a preponderance of probabilities. Given that the Court in Noor Aga had shown a certain amount of deference to the presumption of innocence and expressly rejected such an approach in the context of the NDPS, it is unlikely that it will accept such a hard-line position.[19]
I believe, however, that it is possible to argue that the second path can be followed. Here, once the minority of the victim is proved, the presumption would apply as to the mens rea and the actus reus. To explain this position, we can apply the test from Noor Aga. Minority is proved under the POCSO either by certain documents such as bonafide or birth certificates or by medical age determination tests. These are not difficult for investigation agencies to procure. On the other hand, requiring the defendant to procure documents of personal nature or in the alternate, compel the victim to undergo an age determination test would be a tough task. Thus, the balance in proving the minority of the victim would tilt in favour of the defendant.
The second fact in question here would be the commission of the offence. Here, the situation may be perceived a little differently. In any of the offences under the Act, the major source of evidence is from the victims themselves or their family members. In such cases, the defence can easily call these persons to the stand and examine their claims. The defendants themselves may be placed on the stand, a practice, which is almost non-existent in these cases. The defendant may also offer proof of reasons why a false claim may be filed against them or provide an alibi evidence. The defence can then proceed to prove on a preponderance of probabilities that the offence in question never occurred. Here, in the absence of any medical evidence, the prosecution usually has to rely on the sole evidence of the child. On the other hand, the defendant has a relatively easier job at disproving this fact. Indeed, Courts have been willing to rebut the presumption once applied if the prosecution testimony can be sufficiently discredited.[20]
While interpreting the provisions of the Act, it is important to remember the purpose of the Act, as well as the conditions in which trials under the Act are conducted today. The Act was brought into force to combat a widely prevalent evil of child abuse. That the State has to do its utmost to protect the rights of children is evident from its international obligations as well as its constitutional mandate.[21] The presumption is an enabling provision for the same, and therefore, must be given effect as such. Children of tender ages have to often wait for extended periods of time to depose before Courts. Further, in cases of severe PTSD, the child may block the memories from his or her mind, making testimony at the trial stage difficult. Proving certain offences take place solely on the basis of the testimony of the child, which, therefore, becomes a very challenging prospect. This, in my opinion, makes it a fit case to apply the presumption under the balancing test of Noor Aga.
Implications of this Interpretation and the Way Forward
If such an interpretation is taken, it ought to change the way trials proceed in POCSO matters. The prosecution will have to lead evidence only as to the minority of the victim, after which the presumption will kick in. In theory, this means that the prosecution will not have to present any more evidence. The defence will then have to adduce evidence to disprove the prosecution case, which can be gleaned through the charge-sheet and other contemporaneous documents. Given the situation of trials in India, I realise it is unlikely that such a widespread change will take place in the way trials are conducted. The way in which evidence is shared with the defence will have to undergo a drastic change if the defence is expected to prove innocence on a preponderance of probabilities. Access will have to be allowed to all documents collected by the prosecution throughout the course of the investigation. There may also be concerns regarding police preserving evidence that may later be useful to the defence. At the same time, it must be kept in mind that the POCSO intends to simplify the prosecution in cases of child sexual abuse. We must not be reluctant to adopt approaches that fulfil this goal while staying within the constitutional framework. Even if such a change does not occur, it is essential that our judiciary adopts a more realistic and potent interpretation of the presumptions under the POCSO. This is crucial in order to ensure that the legal protection to victims of child abuse is as strong as constitutionally permissible.
*Shreedhar Kale is a V Year B.A.LL.B (Hons.) student at the National Law School of India University, Bangalore.
[1] The Protection of Children from Sexual Offences Act, 2012, Section 29 reads as follows, “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.”
[2] The Protection of Children from Sexual Offences Act, 2012, Section 30 reads as follows, “(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.”
[3] Centre for Child and the Law, Report on the Working of Special Courts under the POCSO Act in Delhi, 75 (2016); Centre for Child and the Law, Study on the Working of Special Courts under the POCSO Act, 2012 in Assam, 18 (2017).
[4] Judges loath to depart from established principles such as innocent until proven guilty.
[5] The stigma attached to rape victims attaches to many victims of child sexual abuse as well.
[6] Noor Aga v. State of Punjab, (2008) 16 SCC 417 .
[7] The Narcotic Drugs and Psychotropic Substances Act, 1985, s. 35; The Narcotic Drugs and Psychotropic Substances Act, 1985, s. 54.
[8] M/s.Seema Silk and Sarees and Anr. v. Directorate of Enforecement and Ors., 2008 (7) SCALE 624 ; Krishna Janardhan Bhat v. Dattatreya G. Hegde, 2008 (1) SCALE 421 .
[9] D. Hamer, The Presumption of Innocence, and Reverse Burdens: A Balancing Duty, 66 C.L.J. 142 (2007).
[10] ibid.
[11] Naresh Kumar v. State of Himachal Pradesh, 2017 (8) SCALE 324 .
[12] Sahid Hosain Biswas v. State of West Bengal, C.R.A. No. 736/2016 decided on May 4, 2017 (High Court of Calcutta).
[13] “A conjoint reading of the statutory provision in the light of the definitions, as aforesaid, would show that in a prosecution under the POCSO Act an accused is to prove 'the contrary', that is, he has to prove that he has not committed the offence and he is innocent. It is trite law that negative cannot be proved. In order to prove a contrary fact, the fact whose opposite is sought to be established must be proposed first.”
[14] Krishna Janardhan Bhat v. Dattatreya G. Hegde, 2008 (1) SCALE 421.
[15] Dharampal Singh v. State of Punjab, (2010) 9 SCC 608); Bhola Singh v. State of Punjab, (2011) 11 SCC 653.
[16] State of Rajasthan v. Roshan Khan, (2014) 2 SCC 476.
[17] Abdul Mazid v. Govt. of NCT of Delhi, Criminal Appeal No. 1269/2015 (Delhi High Court); Sivakumar v. State of Tamil Nadu, Criminal Appeal No. 307/2015 (Madras High Court).
[18] Yogesh MAral v. State of Maharashtra, 2016 (1) Bom.C.R (Cri) 474 (Bombay High Court).
[19] While it may be impractical, it can be argued that the object and purpose of the Act as well as the difficulty in securing convictions would make the POCSO a fit case to apply such a presumption.
[20] Sivakumar v. State of Tamil Nadu, Criminal Appeal No. 307/2015 (Madras High Court).
[21] Convention on the Rights of the Child art.19, Sept. 2, 1990, 1577 UNTS 3; Article 39, The Constitution of India, 1950. For a discussion on these principles See, Parents Forum for Meaningful Education and Anr. v. Union of India and Anr., AIR 2001 Delhi 212.