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  • Anupama Soumya

EXAMINATION OF REVERSE ONUS CLAUSES UNDER POCSO ACT

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

 

BACKGROUND

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.


CONSTITUTIONAL VALIDITY OF PRESUMPTION CLAUSES

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.