POCSO Act : Kerala High Court Upholds Constitutionality Of Reverse Burden Of Proof Under Sections 29 & 30

In a notable judgment, the Kerala High Court has upheld the constitutional validity of Sections 29 and 30 of the Protection of Children from Sexual Offences Act(POCSO Act) which creates a reverse burden of proof on the accused.

A single bench of Justice Sunil Thomas rejected the arguments that these provisions violated fundamental rights under Articles 14, 20(3) and 21 of the Constitution of India.

The Court noted that statutes imposing limited burden on the accused to establish certain facts which are specifically within his knowledge are not rare in Indian Criminal Law.  It further held such provisions cannot be held to be unconstitutional due to the fact that they reverse the burden of proof from the prosecution to the accused if they are "justifiable on the ground of predominant public interest".

"Parliament is competent to place burden on certain aspects on the accused, especially those which are within his exclusive knowledge. It is justified on the ground that, the prosecution cannot, in the very nature of things be expected to know the affairs of the accused. This is specifically so in the case of sexual offences, where there may not be any eye witness to the incident. Even the burden on accused is also a partial one and is justifiable on larger public interest", the Court observed.

The Court observed that these provisions do not absolve the prosecution of the burden to establish "foundational facts" of the crime and that the reverse burden kicks in only when such "foundational facts" are established. Also, it is open to the accused to rebut the presumption on the basis of preponderance of probabilities.

The court explained that the foundational facts in a POCSO case include "the proof that the victim is a child, that alleged incident has taken place, that the accused has committed the offence and whenever physical injury is caused, to establish it with supporting medical evidence".

"The insistence on establishment of foundational facts by prosecution acts as a safety guard against misapplication of statutory presumptions", the Court observed repelling the constitutional challenge raised in two petitions filed by Justin @ Renjith and Ashly Tomi, who were facing investigation for POCSO offences 

The challenge on the ground Article 14

The petitioners argued that the reverse burden for sexual offences against children was discriminatory as such a provision was not there in cases of sexual offences against adults.

The Court held that POCSO Act was implemented for the protection of children following the mandate of Article 15(3) of the Constitution.

"Since POCSO Act was implemented to achieve the mandate under Article 15(3) of the Constitution for providing special protection to children, POCSO Act cannot be challenged on the ground that it offends Article 14 of the Constitution. Further, treating the child victims as constituting a class by itself, is based on an intelligible differentia, and is  meant to achieve the object of the Statute. Hence the statutory provisions do not offend Article 14".

The Court also rejected the argument that mens rea must be an essential ingredient of every offence.

"Such offences involve varying degree of physical interference on the victim or penetrative act, which if done, by itself explicitly exhibits a sexual intent and hence, mens rea is mplied in the conduct of the agressor itself. Hence it need not even be specifically established by the prosecution. Hence Parliament has consciously omitted the ingredient of sexual intent from the above offences, since that mental element is implied in the very nature of the crime. Hence the contentions of the learned counsel for the petitioners that, mens rea is not made as an important ingredient of offence and hence the Act is contrary to the basic tenents of criminal jurisprudence is not sustainable".

The challenge on the ground of Article 20(3)

The petitioners argued that Sections 29 and 30 violated the right to silence of the accused. Referring to the Supreme Court decision in State of Bombay v Kathi Kalu Oghadu the High Court held that Article 20(3) will operate only when the accused is put under duress to give evidence against himself. This argument was rejected by the Court saying 'compulsion' in the context of Article 20(3) means duress.

"To bring such evidence within the mischief of Art.20(3), it must be shown that accused was under a compulsion to give evidence and that the evidence had a material bearing on the criminality of the maker. Supreme Court explained that, compulsion in the context must mean duress", the Court observed.

"Tendering of the oral evidence by accused is not mandatory or essential. To that extent, the apprehension of the petitioners that, sections 29 and 30 of POCSO Act violate Art.20(3) of the Constitution is misplaced", the Court added.

The challenge on the ground of Article 21

The petitioners argued that the impugned provisions took away the right to presumption of innocence under Article 21 of the Constitution. In this regard,the Court observed that the provisions do not take away the obligation of the prosecution to establish the foundational facts.

The Court said:

"Though, it may appear that in the light of presumptions, the burden of proof oscillate between the prosecution and the accused, depending on the quality of evidence let in, in practice the process of adducing evidence in a POCSO case does not substantially differ from any other criminal trial. Once the recording of prosecution evidence starts, the cross examination of the witnesses will have to be undertaken by the accused keeping in mind the duty of the accused to demolish the prosecution case by an effective cross examination and additionally to elicit facts to rebut the statutory presumptions that may arise from the evidence of prosecution witnesses. Practically, the duty of prosecution to establish the foundational facts and the duty of accused to rebut presumptions arise, with the commencement of trial, progresses forward along with the trial and establishment of one, extinguishes the other. To that extent, the presumptions and the duty to rebut presumptions are co-extensive". 

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