The Reverse Burden and the Presumption of Innocence

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.