Guilty till proved innocent | Opinion News, The Indian Express

Guilty till proved innocent | Opinion News, The Indian Express

Written by Arundhati Katju |Published: January 3, 2019 12:17:47 am

The writer represented Navtej Singh Johar and other petitioners before the Supreme Court

Guilty till proved innocent

Burden of proof in POCSO cases lies on the accused. The introduction of death penalty will make it difficult for the weak and poor to overturn presumption of guilt.

Sexual violence is a grave problem in India, and child sexual abuse has been described as an epidemic. (Illustration: CR Sasikumar)

The Union Cabinet has approved amending the Protection of Children from Sexual Offences Act, 2012 (POCSO), to introduce the death penalty as a punishment for offences of penetrative sexual assault and aggravated penetrative sexual assault (Sections 4, 5 and 6). Cases of sexual assault by police officers, members of the armed forces, public servants, gang-penetrative sexual assault, and relatives are treated as “aggravated” cases, as are cases where the survivor is less than 12 years old.

The reason given for introducing the death penalty is that it will deter child sexual abuse. The government’s press release does not cite any evidence to prove that the death penalty can achieve this goal, in the absence of better policing and shorter trials. POCSO is already a stringent act, carrying presumptions of guilt of the accused. Imposing the death penalty for offences that already carry such stringent presumptions violates the right to life guaranteed under the Constitution. Further, it is especially difficult for the poor or disadvantaged groups to overturn these presumptions. And, studies show that most death row prisoners are from poor, lower caste or religious minority communities.

Usually, in criminal cases, the burden of proof lies on the prosecution, and the guilt must be proved beyond reasonable doubt. Under POCSO, however, there is a presumption that a person who is prosecuted for an offence has actually committed the offence, unless the contrary is proved (Section 29). Instead of “innocent until proven guilty”, the court assumes that the accused is guilty once the prosecution lays the foundation of the case. The Act also presumes that the accused person had a sexual intent when touching the child (Section 30).

The 262nd Law Commission Report has recommended universal abolition of the death penalty, except in terror cases. (The report excluded terror cases not because it found any penal or national security justification for retaining the death penalty, but because there was a sharp division amongst law makers on this question.) Under Article 21 of the Constitution, a person can only be deprived of their life or liberty in accordance with the procedure established by law. This procedure must be just, fair and reasonable. Without quality legal representation, it is virtually impossible for an accused to overcome the presumption of guilt. Imposing death penalty in an offence with a presumption of guilt cannot be a just or fair procedure.