BCI P1.docx - Reverse onus 1 u2018innocent until proven...

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Reverse onus 1. ‘innocent until proven guilty’ - Woolmington v. Director of Public Prosecutions , this principle was referred to as ‘golden thread principle of criminal law’. 2. Section 101 and 106 of the Indian Evidence Act of 1872 talk about the burden of proof, but not whether such burden is upon the Prosecution or Defense. However, The Indian Judiciary has recognized presumption of Innocence under Article 20 and 21 of the Constitution. In the land- mark Maneka Gandhi 1 case, presumption of innocence was held to the fundamental right of the accused. 3. Along with the presence of golden rule, there exist certain classes of offenses. In such cases, the accused is presumed guilty, prima facie, and the burden of proof is shifted onto the accused to adduce evidence towards his innocence or to create reasonable doubt about his guilt. 2 In India, the presumption of innocence is rebutted in two cases – firstly, when there is express statutory provision reversing the burden of proof, and secondly, when the accused appeals against the judgment of a lower court wherein his presumption is that of guilt and not innocence. The most well-known example of a reverse onus clause in our country is Dowry Death. 3 Such an approach attempts to achieve the goal of deterrence, which could contribute towards reducing the occur- rence of these offences. 4 4. Along with IPC, reverse onus clauses are present in many other anti-crime statutes in India. Statutes such as Essential Commodities Act of 1955 and Foreign Exchange Management Act of 1994 (FEMA) assume culpable mental state ( Mens Rea ) of the accused. 5. The 47th law commission report of India suggested that there are certain crimes that gravely affect and harm society and so for such crimes it is necessary to dispense with the burden of the prosecution. The offences which the Indian judiciary has recognised as public welfare offences, it has deemed reverse onus clauses to be necessary to prevent such crimes. dowry death, falls within the second class of socio-economic offences. It was introduced as part of the Criminal Law Amendment Act No. 43 of 1986 as implementation of the 91st Law Commission Report 5 6. The position was finally settled P. N. Krishnalal v . Government of Kerala 6 where the court held that the presumption of innocence is not a constitutional guarantee and can be dispensed with by legislative imperatives and action. The presumption of innocence and reverse burdens seek to bal- ance the personal rights of the ac- cused with the community’s broader inter- est in law enforcement. 7 In Noor Aga v. State of Punjab , 8 the Supreme Court held that re- verse burdens are constitutional, both policy considerations and social control concerns justifying this extraordinary measure.

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