Nixon in 1968: drug abuse is “public enemy number one.” “In order to fight and defeat this enemy,” he continued, “it is necessary to wage a new, all-out offensive.” With that statement, the “war on drugs” began.
John Ehrlichman, a top Nixon aide (1994): The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities.… Did we know we were lying about the drugs? Of course, we did.
Introduction
The presumption of innocence is a sacrosanct principle in criminal law. The Apex court states forms a part of “due process of law” under Art. 21 of the Constitution. Erosion of this presumption has been justified using counterweighing principles of “higher” importance, such as public welfare.
One such example of a “reverse onus clause” is S. 35 of the NDPS Act (“Act”). S. 35(1) states that for all offences under the act, a “culpable mental state” is to be presumed. It is further laid down that the “fact” that the accused had no culpable mental state has to be proven beyond reasonable doubt. Over the course of this article, I engage with three questions concerning this provision. First, what are the justifications for the state to adopt such a law? Second, stemming from these justifications, can the presumption of constitutionality protect laws granting draconian powers to the state? And last, can a balance be struck between the legal presumption of innocence and the presumption of constitutionality?
Identifying the Rationale
The Apex court in Nikesh Tarachand Shah states that the right to be presumed innocent is a part of the right to a fair trial of an accused. What justifies the state to usurp this right? I outline three broad justifications used by authors, reports and judgments of the ‘reverse burden’.
First, the “risk” to “public welfare”. Ashworth argues that the state tends to weigh such offences against the “risk” the offenders cause by being a part of society. In this case, the offender’s presence in society would likely result in an overall increase in drug use and would therefore be damaging to public welfare. This is reflected in the reasoning used in High Court bail orders.
Second, difficulty in meeting the ordinary burden of the prosecution; the court in Noor Aga has recognized the purpose of the legislature to reduce the burden on the prosecution in certain cases. Further in Manoj, the court further strengthened this defense by stating thatsince the accused can rebut these presumptions, these presumptions are proportionate and reasonable.
Third, the severity of these criminal acts. Nixon led America (and consequently, the world) into the “Just Say No” campaign against drugs, followed by an era of criminalization and prohibition leading to legislations like the Act. There is an embedded presumption that the use and propagation are severely harmful to the societal welfare. Using these justifications, it is argued that the law operates on the following line of reasoning:
The presumption of innocence can lead an offender to be acquitted. An accused guilty of such a grave offence against the welfare of the society cannot go unpunished. The law must therefore combat the possibility of the acquittal of a possible offender. This line of reasoning has been held to be valid in Noor Aga
Sitting on the Constitutional Fence
“When two elephants fight, it is the grass that gets trampled.”
The reasoning adopted by the Court in Noor Aga is an act of ‘Judicial negotiation’ in “reverence” to the legislative mandate. Many principles adopted by Noor Aga have since been refuted by the judicial, empirical or doctrinal developments.
First, Noor Aga relies on the principle that it is an “established principle” that presumption of innocence is only a human right and not a constitutional right. The court however, in subsequent cases has contrasted with this assertion. In Sahara v SEBI, it was conclusively held by the court that the presumption of innocence is a constitutional right protected under both Article 14 and 21. The inclusion of Art 21 imposes an obligation of being ‘just, fair and reasonable’ upon the legislature.
The 47th Law Commission report has argued that the degree of sanction and conviction-rates of Socio-economic offences must be further increased; this is to create an effective deterrence to the risk of drug use as a society. This understanding is empirically flawed. This is the “effect-centric” understanding of these cases. However, international bodies, governments and courts across the world have portrayed a “cause centric” understanding of these crimes. Influences on mental state, early life-experiences and standard of life have been recognized as the most consequential factors influencing drug use.
Indian Courts however, seem to be moving in an opposite direction, and a large role is played by the precedent set by the Apex Court. The Himanchal Pradesh High Court has held that the absence of “consciousness” in possession of drugs is a burden to be met by the accused beyond reasonable doubt. The Punjab & Haryana High Court has held the “multiple-owners” of property in joint possession can establish joint possession of all owners, as well as their culpable mental state.
- Difficulty to prosecution
The court in Noor Aga has considered that the legislature can take into account the difficulty faced by the prosecution in establishing the case in such offences. Additionally, the court has cited S. 113A and B and other offences where certain facts may create a presumption against the accused for the benevolence of the victim. While not conceding to the line of reasoning, it does not apply to such cases, as Bhattacharjee has argued, these are cases of “victimless crimes”.The state, in fact, has the highest prerogative to establish such cases, as they are caused by and directed to “society at large”.
How grave is an offence is often considered a factor of how quick the justice should be. May it be the death row in Nirbhaya or the Telangana encounter case. However, the severity of an offence does not have a bearing on establishment of its commission. Wilson has argued that the facts in issue must be looked at independently from the final burden to be established. Additionally, even if it is to be considered as a relevant factor, statutes like NDPS largely criminalize petty crimes and drug uses, as recognized in Gurdev Singh.
Constitutional Interpretation of the Reverse Onus
There is little justification that can be provided for the draconian authority vested with the state under S. 35. However, the court has played dice with the provision and bargained with its application. To deal with the clash between constitutionality and innocence, the court in the line of judgments has watered down the provisions of the Act by narrowing its scope. “Possession” under S. 54 has been interpreted as “conscious possession”. In Mukesh Singh, the court has considered Art 21 to be paramount and the right to a fair trial to be insurmountable. However, it remained just shy of the question of the constitutionality of the reverse burden. The court merely held that the “foundational facts” must be proved for prosecution to discharge its burden, before the presumption is established.
This approach of the court is insufficient to address the issues of violation of Fundamental Rights that the Act poses.
First, addition of a mental element to “possession” does not shift the ultimate burden of “culpable mental state” from the accused. Second, the presumption of guilt of the accused is a presumption of law and not one of inference. It is parallel to the presumption of innocence. As per S. 35, there is no condition precedent required to be met for the presumption of “culpable mental state” to be presumed, therefore, there are no foundational facts. It is, instead, a characteristic of trials under NDPS. The court must, therefore, directly address these issues and not water down an inherently draconian provision.
After itself admitting the draconian nature of the law in Noor Aga, the court has done little more than evading responsibility for the sake of “reverence” to the legislature. Therefore, similar to the court’s approach in Vishaka, the legislature must be asked to create a constructive solution to a pervasive problem and not create a “Veil of Constitutionality” for Draconian provisions.
Conclusion
The article largely deals with the struggle between the state enforced reverse onus clause and its constant impact on the presumption of innocence as a right. Two questions outside the scope but equally as important are: Whether the provision meets the tests of Constitutionality under Art 14 and 21; and What are the constructive measures to be recommended to the Legislature considering the state of our society and criminal justice system.
The court has two clashing presumptions: Constitutionality and Innocence. The court has attempted to balance the two in its series of judgments dealing on S. 35. The legislature, however, has blatantly violated the second under the garb of the first.
The result is a lack of clarity, high pendency, denial of bail and other similar consequences as the law remains the unamended draft of 1985 and its application may only be influenced by the Apex Court. Therefore, the court must not shy away from its responsibility under the garb of relevance. The provision must be declared unconstitutional on grounds of the various tests of Art 21 and 14. The legislature must, take upon itself the burden to develop constructive solutions taking into account the shift of the international community, scientific evidence and all stakeholders.
This article has been authored by Suryansh Singh. The author is a third year student at National Law University, Delhi.
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