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  • Anupama Soumya


Updated: Aug 28, 2020

By- Ayushi H. Desai and Devanshi B. Desai, 4th Year (B.B.A LL.B) Students at Unitedworld School of Law, Karnavati University, Ahmedabad



India is classified as a common law country that runs with an adversarial system of trials. The foundation of the criminal justice system lies in a sacrosanct principle that states that every person accused of a crime are assumed innocent until proven guilty. It means the prosecutor must prove all the essential factors about the crime in question. However, the Presumption of Innocence is a basic human right but not a fundamental right under Part III of the Constitution.[1]

Reverse onus clauses, however, constitute a singular exception to this fundamental rule, supplanting the 'golden thread'[2] of criminal law with a presumption of guilt. This article would examine the sweeping shift from the presumption of innocence to a presumption of guilt. The POCSO Act is a special act enacted by the legislature, functions in a comportment that is best apt for a child's welfare and interest.


The Protection of Children from Sexual Offences Act enacted in 2012 contains two special provisions, i.e., Section 29 and 30. Section 29 explicitly states that whenever a person is prosecuted for committing, abetting to omit or attempting to commit an offense under Section 3, 5, 7 and 9 of the Act, the Special Court shall presume that the offence has been committed, abetting or attempted to commit the offence unless the accused can prove to the contrary.[3] Section 30 deals with the 'presumption of culpability of mental state' of the accused with regards to any offence committed under the POCSO Act until the defence proves it otherwise.[4] Further, sub-clause (2) states that the defence has to prove the innocence of the accused beyond reasonable doubt and not based on the preponderance of probabilities.[5]

The cardinal principle of 'presumption of innocence' seeks to protect the rights of the accused, whereas 'reverse onus clauses' seeks to protect the victim and aid the prosecutor in a case. Hence, in such a situation, it isn't easy to ascertain as to which right should be given weight-age over the other.

The POCSO Act was conceived keeping in mind Article 15[6], where clause (3) of the Article empowers the state to make special provisions for women and children.[7] Further, Article 39 that forms a part of Directive Principles of State Policy mentions that states shall direct policies for children to ensure that they are given opportunities and facilities to develop in a healthy approach and environment of freedom and dignity.[8] The Article also adverts that policies should be formulated for the protection of youth against exploitation, moral, and material desertion.