The Reverse Burden and the Presumption of Innocence
Chapter Fifty-One
Syllabus topic 3, "Exceptional Legislation"
Pages 227 to 230 of 657
In one line
A special statute tells the court to presume guilt once certain facts are proved, and the accused must then disprove it.
In the wording a student can write in an exam: a reverse burden provision requires the court, on proof of stated foundational facts, to presume an element of the offence or the offence itself unless the contrary is proved. Section 21 of TADA, section 53 of POTA and section 43E of the Unlawful Activities (Prevention) Act 1967 are of this kind. The constitutional objection is that the presumption of innocence forms part of a procedure that is right, just and fair under article 21, and the answer given by the courts is that a presumption which operates only after the prosecution has proved the foundational facts beyond reasonable doubt does not offend, because the accused is not required to disprove a bare accusation.
Section 21 of TADA, in its own words
The section provides that in a prosecution for an offence under section 3(1), if it is proved
that the arms or explosives or any other substances specified in section 3 were recovered from the possession of the accused and there is reason to believe that such arms or explosives or other substances of a similar nature were used in the commission of such offence; or
that by the evidence of an expert the finger prints of the accused were found at the site of the offence or on anything including arms and vehicles used in connection with the commission of such offence; or
that a confession has been made by a co-accused that the accused had committed the offence; or
that the accused had made a confession of the offence to any person other than a police officer,
the Designated Court shall presume, unless the contrary is proved, that the accused had committed such offence.
Sub-section (2) provides that in a prosecution for an offence under section 3(3), if it is proved that the accused rendered any financial assistance to a person accused of, or reasonably suspected of, an offence under that section, the Designated Court shall presume, unless the contrary is proved, that he committed the offence under that sub-section.
Reading the section closely shows why it was contentious. The third limb makes a co-accused's confession a foundation for presuming guilt, which reverses the ordinary caution with which such a statement is treated. The fourth limb makes an extra-judicial confession to any person a foundation, which is ordinarily among the weakest kinds of evidence.
The four kinds of provision, kept apart
Students lose marks by calling everything a reverse burden. There are four distinct devices and they have different consequences.
An evidential burden. The accused must raise the issue and point to some material; the legal burden of disproving it remains on the prosecution. This is the mildest device and it is common in ordinary law.
The Reverse Burden and the Presumption of Innocence
A legal or persuasive burden. The accused must prove the matter, ordinarily on the balance of probabilities. This is the true reverse burden.
A mandatory presumption on proof of foundational facts. The court shall presume once stated facts are proved. Section 21 of TADA is of this kind. Its severity depends entirely on how demanding the foundational facts are.
A discretionary presumption. The court may presume. Milder again, because the court retains a choice.
The question in every case is therefore two-part: what must the prosecution prove before the presumption arises, and what must the accused then do to displace it.
The constitutional test
Three propositions, and together they are the Indian answer.
The foundational facts must be proved beyond reasonable doubt. The presumption is not a substitute for proof; it is a consequence of proof. Where the foundational fact is possession, mere presence at premises where something is found does not establish it.
The presumption must be rebuttable. An irrebuttable presumption of guilt would not be a rule of evidence at all.
The connection between the foundational fact and the presumed fact must be rational. A presumption that a person who owns a vehicle used in an offence committed it would fail this; a presumption that a person from whose exclusive possession explosives are recovered, used in the offence, committed it is defensible.
Kartar Singh v. State of Punjab, (1994) 3 SCC 569, upheld TADA including its presumption, in a judgment whose whole technique was to uphold and confine rather than to strike down. That case is worked in [Kartar Singh v. State of Punjab].
The provisions in force today
Section 43E of the Unlawful Activities (Prevention) Act 1967. The presumption applicable to offences under section 15, arising where arms or explosives are recovered from the possession of the accused and there is reason to believe they were used in the commission of the offence, or where the fingerprints of the accused or other definitive evidence suggesting his involvement are found at the site of the offence or on anything used in connection with it.
Notice what is not there. The UAPA presumption does not include the TADA limbs founded on a co-accused's confession or on an extra-judicial confession to any person. Parliament dropped them, and a student who notices that is showing that the statutes are not interchangeable.
Section 37 of the Narcotic Drugs and Psychotropic Substances Act 1985, read with the presumptions in sections 35 and 54 of that Act, is the comparison most often drawn outside the security field.
The Reverse Burden and the Presumption of Innocence
A worked example
Rafiq is prosecuted under a special statute. The prosecution proves that a bag containing explosives was recovered from a room in a house in which he and three others live, and that the explosives were of a kind used in a bombing.
Does the presumption arise? Only if possession by him is proved beyond reasonable doubt. Recovery from a room in a shared house does not establish exclusive possession, and unless the prosecution proves that the room was his and that he had control of the bag, the foundational fact fails and the presumption never operates.
Suppose exclusive possession is proved. The presumption arises, and Rafiq must prove the contrary. He may do so on the balance of probabilities: for example, by evidence that the bag was planted, or that he was elsewhere when the bombing occurred.
Suppose the only material is a co-accused's statement naming him. Under TADA that was a foundational fact by section 21(1)(c). Under the UAPA it is not, and the ordinary law about the weight of a co-accused's statement applies.
The criticism, stated fairly
For the provision. In terrorism cases the direct evidence is often destroyed with the target, witnesses will not testify, and the State can prove connection without being able to prove the act. A presumption bridges that gap.
Against it. The presumption of innocence is not a technicality; it is the allocation of the risk of error, and it is allocated to the State because the State prosecutes. Reversing it in the cases where the consequences are gravest reverses it exactly where it matters most. And in practice the foundational facts are often proved loosely, so the presumption does work the legislature did not intend.
The middle position, and the one the cases take. The provision stands, and the courts police the foundational facts strictly. That is why the worked example above turns entirely on possession.
What it does NOT mean
It does not abolish the prosecution's burden. The foundational facts must still be proved, and beyond reasonable doubt.
It is not the same as an adverse inference. An inference is drawn by a court on the evidence; a presumption is directed by statute.
It does not apply to every offence in the statute. Section 21 of TADA applied to offences under section 3, not to the whole Act, and section 43E of the UAPA is similarly confined.
The statutes are not identical. The UAPA omits two of TADA's four foundational limbs.
Quick revision
- TADA s.21: on proof of recovery of arms or explosives used in the offence, of fingerprints at the site, of a co-accused's confession, or of an extra-judicial confession to a person other than a police officer, the Designated Court shall presume the offence unless the contrary is proved; and on proof of financial assistance, the section 3(3) offence.
- Four devices: evidential burden, legal burden, mandatory presumption on foundational facts, discretionary presumption.
- The test: foundational facts proved beyond reasonable doubt; the presumption rebuttable; and a rational connection between the foundational and the presumed fact.
- Kartar Singh v. State of Punjab, (1994) 3 SCC 569, upheld TADA including the presumption.
- UAPA s.43E is narrower: it omits the co-accused's confession and the extra-judicial confession limbs.
The Reverse Burden and the Presumption of Innocence
Test yourself
1. What are the four foundational facts in section 21(1) of TADA? Recovery of arms, explosives or specified substances from the accused's possession where there is reason to believe they were used in the offence; fingerprints of the accused at the site or on anything used in connection with the offence, proved by expert evidence; a confession by a co-accused that the accused committed the offence; and a confession by the accused to a person other than a police officer.
2. What must the prosecution prove before the presumption operates, and to what standard? The foundational facts, beyond reasonable doubt.
3. Distinguish an evidential burden from a legal burden. An evidential burden requires the accused only to raise the issue and point to some material, the legal burden remaining on the prosecution; a legal burden requires him to prove the matter, ordinarily on the balance of probabilities.
4. Which TADA foundational facts did Parliament omit from section 43E of the UAPA? The confession of a co-accused, and the confession of the accused to a person other than a police officer.
5. Why does the worked example turn on possession? Because the presumption arises only on proof of the foundational fact, and recovery from a shared house does not prove exclusive possession by the accused, so the presumption never operates.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.