The Presumption of Innocence and its Duel with Reverse Burden Clauses
By Priyanshi Rastogi
What is the principle of presumption of innocence?
The presumption of innocence is an authorized and valid presumption. It has not only the endorsement of a venerable life, but it is the ordinary guide of our daily lives. We all act upon it from moment to moment. If we should abandon the principle that men prefer rectitude to wrong-doing, and that men do right rather than wrong, and that crime is the exception instead of the rule, civilization would forthwith abandon us, and we should revert to savagery. All our institutions are built upon it. We know its truth, by constant verification.
Because one can be accused of a crime without being a criminal, an elementary principle of justice requires that plaintiffs prove their allegations and that the accused be considered innocent in the interval between accusation and judgment is followed. This is known as the presumption of innocence.
In the famous case of Woolmington v. Director of Public Prosecutions,¹ this principle was referred to as ‘golden thread principle of criminal law’. Today, this principle finds place in the criminal jurisprudence of various common law countries such as the United Kingdom, Canada, South Africa, United States of America and India.
Do reverse burden clauses pose as a threat to the presumption of innocence under criminal law?
Any presumption created by law in which the entire burden of proof is shifted to the accused in derogation of the doctrine of presumption of innocence is called reverse burden.²
It is essential to understand the difference between onus of proof and burden of proof. While the onus of proof may shift from stage to stage between the prosecution and defense but the burden of proof remains on one party throughout. Shifting of onus of proof and burden of proof from prosecution to defendant create different implications with respect to the presumption of innocence. Certain presumptions that merely shift the onus of proof with respect to some particular fact are not in violation of the presumption of innocence principle. In contrast, a reverse burden clause extinguishes the presumption of innocence by placing the burden of proof on the accused. The principle of presumption of innocence is forfeited and presumption of guilt is assumed. As said by David Hammer, “the persuasive reverse burden requires the defendant to prove his innocence on the balance of probabilities.”³
In simpler words, even if onus of proof on defendant is not discharged, he cannot be held guilty unless prosecution proves beyond reasonable doubt the commission of offence. On the contrary, when burden of proof is placed on defendant, in case of failure to discharge it, he will be convicted.
Despite holding presumption of innocence in reverence in criminal justice administration, there is a growing presence of reverse burden clauses in the legislations that allow presumptions against the accused. It is observed that public outrage against increased crime results in addition of presumptuous clauses against accused or increasing the penalty with the idea of reinforcing and strengthening the law.
Over time, various justifications have been given by scholars to support the reverse burden presumption clauses. But, all of these justifications are based on the “Necessity doctrine”. The major justifications are as follows-
In cases where there arises difficulty in proving of certain facts, it becomes necessary to make legal presumption.
Section 113-B of the Evidence Act is one such example where presumption is made regarding dowry death wherein if a married woman dies within seven years of her marriage and it is proved that soon before her death she was harassed by her husband or relatives with respect to the issue of dowry, it will be presumed that the husband or relatives are liable for her death. Since, the events occurring inside the house cannot be determined clearly; this presumption is made in the statute.
When the fact to be proved is within the knowledge of the accused.
Section 106 of the Evidence Act, to this effect, states that the burden of proof of such facts in his knowledge rest upon him.
When the offence is of such serious nature that reversal of burdens is favourable.
Many times, acquittal in serious crimes is done only due to the technicality of proof beyond reasonable doubt.
Lord Hope in an English case⁴ stated that a major factor while justifying the exceptions to presumption of innocence is the “nature of threat faced by the society which the provision is designed to combat and that a fair balance must be struck between the demands of the general interest of the community and the protection of the fundamental rights of the individual”.
As mentioned above, reverse burden is justifiable when the offense poses as a threat to the society as the primary duty of the state is to protect the society.
Complexity in proving negative facts is another justification to impose reverse burden.
In R vs Halton,⁵ the accused was charged for the felling of trees in the forest without having a license. There were several circumstances in the law where unlawful felling of trees was permissible. It was held the accused is to prove under which exception his act would fall as this would be practical than the prosecution disproving presence of all such circumstances of exception.
Although, these situations justify the use of reverse burden clauses, there has been prominent increase in the presence of such clauses in legislations. The then Law Minister, Arun Jaitely, voiced his concern on this issue in the 180th Law Commission Report (2002) by stating that “In recent times, the basic principle that the prosecution has to prove the charge of guilt against the accused beyond reasonable doubt is being diluted by the legislatures in several statutes.”
Glanville Williams, one of the greatest jurists on criminal law said “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.”⁶
Although, strict liability differs from reverse burden, in essence, the result of both appears to be the same. As stated by Ashworth & Blake (1996):⁷ “If the legislature is given with the authority to impose strict liability as and when it wishes, the vigourous assertion of the presumption of innocence rings hollow”. So, it is clear that reversed burden of proof does violate the human right of presumption of innocence. It is a tool to be operated only in hour of need and not to be arbitrarily used to dispose the state’s burden.
Concluding Remarks
The principle of presumption of innocence is embedded in the criminal jurisprudence of India and must not be tampered with in trivial matters and should not be ignored or compromised unless it is of utmost necessity to do so.
The issue regarding presumption of innocence in India, to an extent, stems from the absence of explicit mention of the right in the Constitution. This gives the legislation unhindered power to enact statutes with reverse burden clauses that violate presumption of innocence. In my opinion, the Constituent Assembly, even after discussion on this principle, has erred to not mention it in the Constitution. Article 20 which mentions the fundamental rights of an accused person must additionally contain the principle of presumption of innocence as well; of course with an exception clause that allows the reversal of burden in case of heinous crimes of socioeconomic nature that impact the well-being of the society at large. A provision that fairly represents the idea of a fair balance between the general interest of the community and the personal rights of an individual must be formulated in this regard.
[1] [1935] UKHL 1, AC 462.
[2] Rao, K. P., & Bharti, V., Reverse Burdens: A Threat to Presumption of Innocence, 3(1) NPA Criminal Law Review 47–74 (2016).
[3] David Hamer, The Presumption of Innocence and Reverse Burdens: A Balancing Act, 66 Cambridge L.J. 142, 143 (2007).
[4] R v D P P ex. P Kebilene [2000] 2 AC. 326.
[5] [2003] EWHC 272.
[6] Glanville Williams, The Proof of Guilt 128–129 (7th ed. 1963).
[7] Ashworth, A., & Blake, M., The Presumption of Innocence in English Criminal Law, Criminal Law Review 306–317 (1996).
The author is a Year III B.B.A., LL.B student at Symbiosis Law School, Noida.
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