POCSO provisions: Valid exception

Recently, the Tripura High Court called into question the constitutional validity of convicting an accused on the basis of presumption of guilt under Section 29 of the Protection of Children from Sexual Offences Act (POCSO Act). A reverse onus clause is one that places the burden of proof on the accused rather than on the prosecution. The court held that a conviction merely on the basis of presumption would violate an individual’s right to life and right against self-incrimination, both of which are constitutionally guaranteed fundamental rights.

Presuming the innocence of an accused forms the cardinal principle of criminal jurisprudence. However, the law may in certain exceptional circumstances presume the guilt of an accused. This is done in the larger interests of society and to meet the ends of justice. Section 29 of POCSO Act enumerates specific offences under the Act on which the Special Court shall presume that the accused has committed, abetted or attempted to commit the offence, unless the contrary is proved. This is in contravention of the ‘innocent until proven guilty’ principle.

Whilst deciding the constitutionality of the provision, it is pertinent to examine the intent of the legislature in introducing the provision. Keeping in mind the wellbeing of the child and several factors such as the gravity of the crime, young age of the victim and the likely absence of a direct eyewitness (since instances of sexual assault often take place behind closed doors), special provisions were incorporated in the matters of investigation and trial for offences under the POCSO Act.

The raison d'être for introducing such a provision was highlighted by the Parliamentary Standing Committee on Human Resource Development in its 240th Report on the POCSO Bill, 2011, which opined that the vulnerability of the victims and difficulty in collecting evidence, necessitated placing such an onerous burden on the accused.

Certain acts don’t necessarily involve the physical sexual abuse of the child and in such cases, medical reports may prove to be an exercise in futility. In instances where the prosecution’s case rests on the edifice of a comparatively weaker testimony of a child-victim, who due to lack of maturity, experience and knowledge of how exactly to deliver clear answers and establish the occurrence of the offence beyond reasonable doubt, and in cases where there is no possibility of corroboration through medical reports or witnesses, provisions such as Section 29 become necessary to level the playing field in the realisation of justice.

Furthermore, the Section has adequate built-in safeguards to prevent the misuse and misapplication of the provision. The Kerala High Court in Justin v. Union of India upheld the constitutionality of reverse onus clause under the POCSO Act and stated that presumption of guilt of an accused commences only once the prosecution has proved ‘foundational facts’ of the case. Foundational facts in a POCSO case include – proof that the victim is a child, that the alleged incident has occurred, and whenever physical injury is caused, supporting it with medical evidence. Thus, only once the court is confident that the alleged act took place does it presume the guilt of the accused and the accused can then rebut this presumption.

Constitutional validity

The impugned provision does not violate the right to life of the accused under Article 21 of the Constitution as it passes the test of procedure established by law as laid down in Maneka Gandhi v. Union of India. It was held that to pass the test of ‘procedure established by law’, the law must be ‘reasonable, fair and just’. The provisions under Section 29 do not take away the primary duty of the prosecution to establish the foundational facts. This duty is always on the prosecution and never shifts to the accused and is therefore fair, just and reasonable.

Parliament is competent to place burden of proof on the accused in certain aspects, especially those that are within his exclusive knowledge. It is justified on the ground that the prosecution cannot be expected to know the affairs of the accused, especially in cases of sexual offences, where there may not be any eye witness to the incident. Furthermore, the accused is only made to rebut the foundational facts which are established by the prosecution, hence the primary burden of proof remains on the prosecution. Therefore, it does not amount to a violation of the right against self-incrimination under Article 20(3) of the Constitution.

The POCSO Act was enacted in pursuance of Article 15(3) of the Constitution which empowers Parliament to make special provisions for the protection of women and children. The provisions have adequate built-in safeguards to prevent their misuse and the Act strikes a balance between the rights of the accused and that of children and society at large. The provisions are a necessity in bringing paedophiles to justice and to protect children.

(The writer is an undergraduate law student at Symbiosis Law School, Pune)