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KEY TAKEAWAYS

  • The Protection of Children from Sexual Offenses Act of 2012 (POCSO Act) and its implementing regulations were implemented with the aim of safeguarding young kids from a wide range of sexual wrongdoings and establishing child-friendly judicial mechanisms to deal with them.
  • Section 29 of POCSO Act, 2012 - When an individual is charged with sexual assault against a child, the special court that is hearing the case will presume the person is guilty.
  • Section 30 of POCSO Act 2012 talks about the presumption of a blameworthy state of mind.
  • In Noor Aga v. State of Punjab, the most intriguing parts of the decision concerns the legality of this ‘reverse burden' system which is also a topic of discussion in POCSO cases.
  • If a person is accused in a POCSO case, the burden of proof in POCSO cases lies on the accused himself/herself.

INTRODUCTION

The Protection of Children from Sexual Offenses Act of 2012 (also called "POCSO") was implemented with the diverse goal of preventing sexual abuse of children and subjugation. It was also supplemented by the faith that a powerful judicial system is required to combat these offences. To that end, it enacted a slew of initiatives aimed at making judicial burdens in cases involving this problem easier to bear, such as the creation of Special Courts to hear cases involving the Act. The two presumptions supplied by sections 29 and 30 of the Act are also worth mentioning. When a person is charged under the POCSO, he is presumed to have committed the crime under section 29. Correspondingly, section 30 presumes that a person charged under the Act possessed the guilty state of mind required to commit a criminal act.While these presumptions can help to lessen the pressure of the prosecution, their implementation has been found to be less than acceptable. One of the purposes for this, I presume, is the greater judiciary's lack of direction in their analysis. Because there is no guidance, a variety of other variables can inhibit the presumptions from being applied effectively. These include ingrained beliefs in criminal law principles or the impact of patriarchal society in the legal system. The intent of these presumptions, as well as the Court's analysis, would effectively completely negate the Act's presumption.

In this article, I believe that the current explanation of the POCSO's presumptions renders them meaningless. I'll start by putting out the law on presumptions in broad sense, as well as the POCSO's viewpoints of presumptions. Then I'll look at a few different interpretations and try to come up with one that perfectly matches POCSO's regulatory framework.

NOOR AGA CASE AND THE PRESENT LEGAL SITUATION

Noor Aga v. State of Punjab demonstrates the existing legislative stance on the authenticity of reverse onus provisions. The constitutional validity of reverse onus provisions in the Narcotic Drugs and Psychotropic Substances Act of 1985 [also called "NDPS"] was the subject of this judgement. In Noor Aga, the Court relied on several of its own judgements to retain that the presumption of innocence is not an inherent right. The Court stated that reverse onus provisions could be reasonable, though in some cases, specific requirements could be needed to make them so. As a result, the Court determined that reverse onus provisions are not unlawful on their face. The Court depended heavily on one published article to ascertain when a reverse onus provision would be reasonable. The Court mentions the article and states that the factors listed there will be used to determine whether such provisions are valid.The following is the pertinent extract:

The reality of evidence must be considered when determining if a reverse burden of proof is consistent with the presumption of innocence. Without the reverse burden of proof, how challenging would it be for the prosecution to prove culpability? How easy would it be for a defenceless accused to meet the rebuttal burden? However, courts will not permit sensible considerations to overpower the defendant's legal interests. Where the reverse burden does not threaten grave injustice - where the crime is not too severe or the reverse burden only concerns a matter ancillary to guilt - rationality will have more clout. In the regulatory structure, prosecutorial effectiveness will be given more weight.

Thus, when existing rights of the accused are matched against the pragmatics of evidence, i.e., how challenging would it be to prove guilt without reverse burden and how simple would it be for the defenceless accused to discharge the reverse burden, a reverse onus provision that presumes the culpability of the defendant is reasonable.

The Court then considered if the authenticity of reverse onus provisions requires the presentation of fundamental facts. These are facts that may need to be substantiated before a presumption can be invoked. The Court had previously stated that any reverse burden provision would be an infringement on the defendant's right to a presumption of innocence. It was determined that needing evidence of fundamental facts prior to initiating the presumption might mitigate the invasion. "Clauses enforcing reverse burden, nevertheless, must not only be needed to be rigidly complied with but also may be subject to evidence of some basic facts as envisioned under the statutory provision in question," the Court said in response to the question of fundamental facts. It's worth noting that the word'may' is used in the quote above.

Eventually, the Court stated that the prosecution's burden of proof in cases of presumption will be 'beyond reasonable doubt,' while the accused would only have to disprove the presumption on a balance of probabilities. In the case of Naresh Kumar v. State of Himachal Pradesh, the Supreme Court recently upheld this statement.

BISWAS CASE AND THE SUSPENSION OF THE PRESUMPTION

The Calcutta High Court recently had to decipher the presumptions under the POCSO in Sahid Hosain Biswas v. State of West Bengal. The Court concluded that while it is "trite law" that it is impossible to prove a negative, all facts that must be debunked must first be proven. This sweeping claim appears to be inaccurate, as the Supreme Court recently confirmed that asserting a negative is hard but not impossible. The High Court makes no recommendations as to what the fundamental facts ought to be, and it makes no mention of Noor Aga. Because the Court made no mention of fundamental facts, it's fair to presume that the Court intended that all facts that must be debunked under the presumption should be proven.When we combine this explanation of the POCSO with the Noor Aga and Naresh Kumar judgement, we have a scenario in which all of the factual information under the POCSO must be proven beyond a reasonable doubt. This is an extremely risky inference to take.

The extent of facts under the POCSO must be seen to comprehend why. In a POCSO court hearing, there are generally two key factors that must be proven. The first is the victim's minority. This would be required because a charge under the POCSO requires it. The exact commission of the crime will indeed, of course, be the second. The minor's assent or lack thereof would be meaningless, as it is not a component that must be proven under the POCSO. Minority and commission of the crime are the only factual statements that must be proven to win a case under the POCSO. Both of these factors appear to be fundamental facts in the Biswas decision. The crime will be founded once these are put in place.In contrast to other reverse onus provisions, this one is unique. The presumption changes under the NDPS Act, for instance, after the prosecution establishes conscientious ownership and retrieval of the opiates. The defence must then show that the defendant was aware of the opiates in question. After sexual contact is proven in rape trials, the presumption under section 114-A of the Indian Evidence Act, 1872 applies. The defence must then demonstrate that there was no permission. Other elements of the crime are presumed after the fundamental facts are established in both cases. There will be no components to confirm after the presumption is stimulated if the analysis in Biswas is implemented to the POCSO. As a result, the POCSO's presumption will be rendered meaningless.

In the dearth of a Supreme Court decision interpreting the presumption under the POCSO, adopting an interpretation that goes against the true essence of the presumption would appear to be a mistake. Other High Courts have applied the presumptions, but none have interpreted the legal requirements for the same, as mentioned above. In Yogesh Maralv v. State of Maharashtra, the Bombay High Court implied at the invalidation of these presumptions. It did not, nevertheless, investigate the virtues of the assertion because the case at hand did not require it. This is saddening because it could have supplied some advice on how the presumption should be applied.

REINSTATING THE PRESUMPTION SECTION IN POCSO CASES

Given the current state of the legislation, it is critical to provide certainty on how the presumptions should be applied while preserving the POCSO's objective in mind. There are three ways to achieve this certainty. To begin with, they could be argued to be legitimate as is. Second, only one of the two foundational facts in issue might be proven before the presumption is stimulated. Eventually, we could argue that the current situation is the only viable way to apply the presumption.

I won't go into detail about the third explanation because I've already demonstrated how it totally invalidates the presumption. The first option implies that a defendant is presumed guilty from the instant he is accused until he proves his innocence by a preponderance of evidence. Given that the Court in Noor Aga gave the presumption of innocence some subservience and explicitly turned down such a framework in the context of the NDPS, it's highly improbable that it'll recognise such a hard-line stance.

However, I believe it is possible to assert that the second route can be taken. Once the victim's minority is established, the presumption applies to the mens rea and actus reus. We can use the Noor Aga test to describe this position. Under the POCSO, minority is established through the presentation of certain records, such as bonafide or birth records, or through medical age determination exams. These are not hard to obtain for investigative agencies. Mandating the defendant to obtain personal files or, in the alternative, forcing the victim to endure an age determination exam would be a challenging task. As a result, the alignment in asserting the victim's minority will indeed prioritise the defendant.

The commission of the crime is the second fact in question here. The scenario may be perceived differently in this case. The victims' or their relatives and friends' testimony is the most important piece of evidence in any of the Act's crimes. The defence can conveniently call these people to the stand and question them about their assertions in such cases. The defendants themselves could be called to testify, which is a rare occurrence in these cases. The defendant may also provide proof of why a bogus accusation was reported against them, such as an alibi. The defence can then go on to demonstrate that the crime in question never happened on a preponderance of the evidence. In the utter lack of any clinical evidence, the prosecution is generally forced to rely solely on the child's testimony.

When analysing the Act's clauses, it's important to remember the Act's intent as well as the current circumstances in which trials under the Act are held. The Act was enacted to battle child molestation, which is a widespread problem. The State's international commitments, as well as its constitutional requirement, make it clear that it must do everything ways to secure right of children. Since the presumption is an enabling provision for the same, it should be implemented as such. Kids of a young age frequently have to wait for long periods of time to testify in court. Furthermore, in serious forms of PTSD, the child may be able to restrict remembrances from his or her head, making court testimony complicated.Certain crimes are prosecuted purely on the basis of the child's witness statements, that makes it a difficult task. This, in my viewpoint, qualifies it for the presumption under the Noor Aga balancing exam.

THE REPERCUSSIONS OF THIS EXPLANATION INCLUDING NEXT STEPS AND CONCLUSION

If this explanation is accepted, it should alter the way POCSO experiments are conducted. The prosecution will only have to present evidence relating to the victim's minority, after which the presumption will take effect. In principle, this implies the prosecution will not be required to present any additional evidence. The defence will then have to present evidence to disprove the prosecution's case, which can be found in the charge sheet and other contemporary files. Given the state of trials in India, I recognise that such a pervasive change in the way trials is performed is highly improbable. If the defence is anticipated to prove innocence by a preponderance of the evidence, the way proof is shared with the defence will have to change dramatically.All records gathered by the prosecution during the course of an investigation must be made available to the public. There may also be issues about police conserving proof that could be helpful to the defence in the future. At the same time, it's important to remember that the POCSO wants to make child sex abuse prosecutions easier. We should not be afraid to take steps to accomplish this objective while remaining within the constitutional system. Even if such a transformation does not happen, our judicial system must embrace a more plausible and powerful viewpoint of the POCSO's presumptions. This is critical in order to make sure that victims of child abuse receive the strongest legal immunity possible under the law.


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