The Protection of Children from Sexual Offences Act (hereinafter, “the POCSO Act”) 2012 is a sexual offence legislation enacted to protect minor children from sexual harassment and child pornography. This Act provides for stringent punishment against the accused in the form of the death penalty, heavy fines, or life imprisonment. Lord Blackstone opined that to constitute a crime, there must be a vicious will and an action consequent upon such will. However, there is an exception to this conception where in certain crimes vicious will is presumed. It is manifested in a reverse onus clause where the accused is presumed as guilty until proven innocent by himself. The POCSO Act is a controversial act because it has incorporated reverse onus clauses in Sections 29 and 30. When a person is charged under Section 29 of the Act by the prosecution, the Special Court presumes him as guilty. In Section 30 of the Act, there is the presumption of the culpable mental state of the accused. This makes a POCSO offence a strict liability offence in criminal law.[i] Such clauses can have detrimental effects on the rights of the accused and make it strenuous for them to defend themselves due to lack of resources. The reverse onus clause is a product of specific societal behaviour molded for a long time and plays a crucial role in legislation making. Society's reaction towards a particular offence and the social stigma enables the government to create strict liability offences with provisions like the reverse onus clause.
In this blog, the concept of the reverse onus clause in the context of POCSO Act is examined, framed within the broader idea of 'moral panic.' It explores how society's perception of certain offenses as morally reprehensible leads to the creation of strict legislation, including reverse onus clauses, as a means to deter such crimes. The discussion delves into the ethical and moral considerations underpinning the legal system, emphasizing the influence of societal values on the formulation of laws. It also addresses criticisms of the reverse onus clause, highlighting its limitations and potential for misuse in the political arena. Further, it is concluded by stressing the importance of upholding the presumption of innocence and ensuring a fair and balanced legal process, even in cases of grave offenses, in order to protect individual rights and maintain the integrity of the legal system.
Reverse Onus Clause: Product Of Moral Panic
Offenders are seen as threats to the integration of society. Stanley Cohen describes this as 'moral panic' where a crime or particular class of people are seen as a threat to societal values. Society refers to them as folk devils who need to be punished. Law in the form of sanctions becomes an instrument of State to define these offenders and control them. It helps in reducing the moral panic in society. Various stringent laws have been created for this purpose throughout time, out of which the reverse onus clause in the POCSO Act is one of the leading examples. The inability to protect the child from sexual abuse and increasing litigations creates moral panic in society. As a result, sometimes, there is a disproportionate reaction towards these crimes. It is displayed in the reverse onus clause in criminal law. The 47th Law Commission Report 1972 stated that reverse onus clauses are valid because certain public offences gravely harm society's social integration. Reverse onus clauses presume at the commission of the crime that the offenders inherently pose a danger to the morals and ethical values of a society. Such offences, along with the moral panic, meddles with the societal mores and hence, reverse onus clauses in the POCSO Act intend to create a deterrent effect against these offences. The reverse onus clause is said to be justified because it is unfeasible for the state to prove the accused's possession of special knowledge of facts. In addition to this, such a clause also helps to ensure that the trial runs shorter and justice is dispensed quickly. These clauses thereby reflect the collective attitude and societal perception towards the accused.
Moral panic is accounted for in ethical policy-making, which ultimately takes the form of strict legislation or provision. Lord Devlin, in his lecture, The Enforcement of Morals, argues that the presence of offences like pornography, rape etc., are morally offensive to society. Society should protect itself from them and use the law to preserve morality. When there is a deviation from the social norms, the alleged act becomes subjected to criticism in the form of legal punishments. By the reasoning of Devlin, the reverse onus clause is justified if it can help create a deterrent effect against child sexual abuse. It would put the offender in a difficult position and maximize his chances of getting convicted. That being the case, moral panic will assuage. This shows that moral panic influences the law. To further substantiate this argument, when the law is designed, there is consideration of ‘ethical values’ to make the law suitable for the public purpose. Ethics are drawn from society's conception of what is moral and immoral. For example, prostitution is said to be immoral and violates the ethics of society. As a result, a law will be created to ban it. Lord Devlin opined that any behaviour that evokes intolerance, resentment, and disgust. is morally wrong. These acts are called malum in se, which can be criminally sanctioned. Common morality ensures that people form a society and stop the particular behaviour that may threaten its existence. The law is used as a tool for social control to check against the extra-legal standards of morality.[ii] Law ensures that the values of a society are prioritized and ensures stable order for others. This shows that the moral standards of the society guide the laws in the society, and in some sense, the former has inherent moral authority over its subjects.
The judiciary is not untouched by this aspect. Since the judges are part of the society itself, the courts have interpreted the reverse onus clause by conforming to the moral norms in the society. In Noor Aga v. the State of Punjab, the court held that the reverse onus clause is constitutionally valid. Presumption of innocence is not an absolute right and is subject to statutory exceptions. Justice Sinha held that this presumption should be tested on the anvil of the State responsibility to protect innocent citizens like children and women.[iii] On the determination of the constitutionality of the reverse onus clause, the bench in the case of Namit Sharma v. Union of India[iv] was of the opinion that one needs to consider the objects and reason behind the enactment of the clause. Therefore, if the objective of any legislation serves the public interest or aims at protecting a specific class of people, the justification for the reverse onus clause is valid
Criticism Of The Reverse Onus Clause
Even when there is enforcement of stringent laws which provide for reverse onus clauses, child sexual abuse has remained unabated. There are very limited stances where such clause has benefited public safety. Sometimes this moral panic proves to be insufficient and is contingent on various factors. Often, the media exaggerates the number of crimes, and it can exacerbate society's moral panic. The moral panic relating to a particular offence can suddenly subsidize when the media starts reporting other issues. It is argued that moral panic can be volatile. Some moral panic exists for a short period while some last for a sustainable period. Such irregularities will make the law futile. The relationship between moral panic and law is also relevant in the political context. Since the politicians legislate and regulate the conduct of society, they tend to exploit this pre-existing societal fear to produce more moral panic.[v] It could be their strategy to gain political support or create prejudice against certain people. These factors raise questions on the credibility of the reverse onus clause. There can be a particular incident that might trigger passion and outrage towards the crime. It can influence the making of harsh provisions like the reverse onus clause without looking into the repercussions on the accused. However, it cannot be said that there is a definite shift of burden on the accused. In the case Subrata Biswas v. State[vi], the judges held that the prosecution has to prove the essential ingredients of the crime. The reverse onus clause dilutes the burden of proof by the state. But when there are procedural innovations in the form of special laws, it can violate right to life and right against self-incrimination of the accused. There is the labelling of the accused as an 'offender', and he is banished from society.
On the constitutional validity of the clause, it was contested that the principles laid down by Lord Devlin are based on personal immorality standard and does not fulfil the intelligible differentia under Article 14 of the Constitution. Constitutional morality should be the basis of the criminalization of acts. The reverse onus clause is a preventive step, and one, in reality, is not finding the cause’ behind child sexual abuse.
Moreover, in, the Indian Penal Code 1860 and Criminal Procedure Code, 1973, there exists a general set of laws where the terms of the offence, punishment and procedure of standard of proof are laid out, respectively. Fuller defended the generality of laws that would ensure that the law applies to all the classes of offences without much chaos. There has to be consistency between the designed law and its actual implementation to remove the space for uncertainty. In the field of Natural Law theory, general laws help eliminate the discretion of Parliament to modify the laws and ensure fundamental fairness in the legal system. If special Acts are created, and the procedure is altered, like insertion of reverse onus clauses, these well-recognized general provisions would be rendered useless.
The objective of the POCSO Act includes a number of procedures to ensure that a verdict is reached and those responsible for such acts are found guilty. The Act places a presumption of guilt and a burden of proof on the accused for the commutation of such interests. However, in the case of Woolmington v DPP, the court stated that that the presumption of innocence is the "golden thread" of criminal law.[vii] The rights of the accused are violated when the presumption of innocence is absent, which calls into question the fairness of the trial and the procedure. The Indian Constitution ensures rights not only for the citizens but for the arrested and accused persons so that the rules of natural justice are followed in every situation possible. The very same rights include the Right against self-incrimination under Article 20(3)30. The validity of these clauses though confirmed by various statutes and judgements does pose a challenge to this right. Nevertheless, sexual crimes against children deserve to be treated with as much caution and severity that can be spared, and considering this the measures seem justified, the only danger that needs to be dealt with is that of wrongful convictions. Therefore, the courts must ensure that the onus is considered when administering justice.
[i] State v Iskhar Ahmed SC No. 0300064 of 2013. [ii] Jerome E. Bickenbach, “Law and Morality”  Law and Philosophy 8 (3) pg.291. [iii] Noor Aga v State of Punjab (2008) 9 SCALE 681. [iv] Namit Sharma v. Union of India (2013)1 SCC 745. [v] Alyssa Greenstein, “Moral Panic and Law”. [vi] Subrata Biswas v. State, 2019 SCC OnLine Cal 1815. [vii] Woolmington v DPP  AC 462.
Sheel Singhal is a 4th year law student at Maharashtra National Law University, Nagpur
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