Wednesday, September 10, 2008

Guest post - Constitutionality of reverse onus clauses

This is a guest post from Karan Lahiri, a final year student at National Law School, Bangalore, on a recent judgment on the constitutionality of reverse onus clauses:

'Noor Aga v. State of Punjab examines the ‘reverse burden’ of proof in Sections 35 and 54 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The interesting portions of this judgment deal with the constitutionality of this ‘reverse burden’. Though this has been upheld on previous occasions by the Supreme Court and certainly could not have been struck down in this matter by the division bench consisting of Justice Sinha and Justice Sirpurkar, I feel that this is the first matter which has really placed ‘reverse burden’ under a constitutional lens.

In a nutshell, the Appellant was an Afghan national from whom a quantity of heroin was allegedly recovered at Raja Sansi Airport, Amritsar, apparently concealed in the secret compartment of a carton containing grapes. The reverse burden placed on him was due to Sections 35 and 54 of the NDPS Act, as mentioned earlier. Section 35 states:-

“In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the 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.”

Section 54 states:-
“In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under Chapter IV in respect of –
(a) any narcotic drug or psychotropic substance;
(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance; or
d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance, or any residue left of the materials from which any narcotic drug or psychotropic substance has been manufactured, for the possession of which he fails to account satisfactorily.”
What is significant in this judgment is that it speaks of presumption of innocence as a human right. While Justice Sinha invokes Article14(2) of the Intentional Convention on Civil and Political Rights, it is initially unclear as to how he plans to place this right in the context of the Constitution of India generally, as also how he plans to test the NDPS Act on the basis of this right in particular. The first important hint in this regard is the statement that merely placing the burden of proof on the accused would not render a provision doing so unconstitutional. Therefore, it is clear that there must be some counterweight when the burden is placed on the accused. The judgment states:-

“A right to be presumed innocent, subject to the establishment of certain foundational facts and burden of proof, to a certain extent, can be placed on an accused. It must be construed having regard to the other international conventions and having regard to the fact that it has been held to be constitutional. Thus, a statute may be constitutional but a prosecution thereunder may not be held to be one. Indisputably, civil liberties and rights of citizens must be upheld.”

From this statement, one gets a sense that Justice Sinha seeks to scrutinize the proceedings under a law providing for a reverse burden more strictly than he seeks to scrutinize the law itself, especially since the judgment goes on to state that a stringent law requires stringent compliance with procedure. It seems that this insistence stems from the right to fair trial, given that the following passage from the matter of South Africa in State v. Basson 2004, (6) BCLR 620 (CC), a war crimes case before the constitutional court of South Africa, has been cited with approval in the judgment:-

“When allegations of such serious nature are at issue, and where the exemplary value of constitutionalism as against lawlessness is the very issue at stake, it is particularly important that the judicial and prosecutorial functions be undertaken with rigorous and principled respect for basic constitutional rights. The effective prosecution of war crimes and the rights of the accused to a fair trial are not antagonistic concepts. On the contrary, both stem from the same constitutional and humanitarian foundation, namely the need to uphold the rule of law and the basic principles of human dignity, equality and freedom..”

Here, it becomes clearer as to how reverse burden provisions are to be tested in the context of constitutional/human rights, given that the right to fair trial and human dignity are invoked to justify rigorous compliance with procedure. Enforcement of law and protection of citizen from the operation of injustice in the hands of the law enforcement machinery are the two factors to be balance according to Justice Sinha, and we finally discover the counterweight to a provision stipulating reverse burden where the judgment states that “[the] constitutionality of a penal provision placing burden of proof on an accused, thus, must be tested on the anvil of the State's responsibility to protect innocent citizens.”

Put simply, this case acknowledges ‘presumption of innocence’ as a human right, but goes on to state that “limited inroads” might be made with respect to this right. However, when such inroads are made in the form of a reverse burden placed on the accused, such a provision must be read in light of Articles 14 and 21 of the Constitution insofar as they contain within them the right of fair trial and human dignity. This reading, apart from testing the law itself, is more useful in testing all prosecutions carried out under such law. The stricter the offence and the more stringent the statute, the more searching is the scrutiny involved.

As a final word, I would like to point out an issue of hard criminal law in this case. This was a case where various discrepancies had crept in to the way evidence had been adduced by the customs authorities (to mention just a few, the bulk quantity of heroin, the carton as also the samples had gone missing!) and, taking a cumulative view of the same, the bench ruled in favour of the accused. What is of interest is that this is perhaps the first case on the NDPS Act I have read (not that I’ve read all that many) which clearly points out the obvious fact that before the reverse burden on the accused is placed under Section 54 of the Act, the burden is on the prosecution to prove the element of “possession” beyond reasonable doubt. The judgment rules that the prosecution, in this case, did not satisfy this, especially in light of the fact that the stringency of the statute and the seriousness of the alleged offence heightened the level of scrutiny and made this particular burden on the prosecution more onerous.'

1 comment:

tarunabh said...

Justice Sinha's comments that the statute itself may be constitutional and yet the proceedings under it may not be find reflection in a recent House of Lords case involving withholding of evidence from the accused - Secretary of State v. MB. The relevant parts are paras 63-72 of Baroness Hale's opinion, which upholds the statute but imposes certain restrictions on it so that proceedings which do not comply with these restrictions may be invalid.