ARTICLE
Gracy Singh
5th Dec 2023
Guilty Until Proven Innocent
1.Introduction
In 1971, Sir William Garrow expressed a straight arrow phrase innocent until proven guilty during a trial at Old Bailey. Ei Incumbit Probatio qui dicit, non qui negat states proof lies on him who asserts not on him denies. The same principle has been vindicated as human right under UNS Universal Declaration Of Human Rights, Article 11. It has been identified as legal right in countries such as France, Canada, Iran, Italy, Russia and many more.
Here in India, it is for sure a notable legal principle but when it comes to practical implementation of this principle, there are many lawless laws failing to fall within presumption of innocence principle. I here, call these laws lawless, because they contradict some right or laws to not so reasonable extent.
How about me walking in my backyard and boom ! a police officer comes in and arrests me because I have been declared a terrorist or you, still not over your last vacation and realizing you are a terrorist now !, and whats surprising is that you or me does not have to commit a terrorist act for being called one, just a mere thought and presumption of the government is enough for branding us as terrorist. The only statutory remedy available to us will be making an application to central Government for de-notification, which will ironically be considered by a review committee constituted by government itself.
Yes, I am talking about at issue the Unlawful Activities ( Prevention) Amendment Act, 2019. The law made in 1967 has been amended twice precedent to this, first in 2008, then 2012 with objective of making powers available for dealing with activities directed against integrity and sovereignty of India with a vague definition of terrorism including non violent political process. So, basically this empowers official of union ministry to brand any person as terrorist without following due procedure. It allows detention without a charge sheet up to 180 days and police custody can be up to 30 days. It creates a strong presumption of guilt of terrorism merely based on evidence allegedly seized. Anticipatory bail is out of question.
Nearly 75% cases have no charge sheet filed. The act provides no safeguard against its misuse at individual level. The official designation of a person as terrorist will be akin civil death of that person with social exclusion even if he might not be proven guilty later. This is how principle of presumption of innocence is not satisfied. A person is official designated guilty of a crime without even the court getting involved.(1)
2.Benjamin Franklin said :
Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety. Is this act not violation of our basic security as residents of country ?
Presumption of innocence not only being a justice principle is also a human right that can not be taken away. UAPA act is just one law failing to compel it, there are several more examples ranging from long list of arrests under sedition law to accusation under anti- terrorism law. Our country need a more deterrent approach toward justice delivery but should it come as cost of violation of ones human rights.
I believe presumption of innocence is one such principle of law that when violated will only lead to miscarriage of justice. In the case of Noor Aga vs. State of Punjab and Anr.(1) it was held by the apex court that, though not explicitly mentioned in the constitution, presumption of innocence is nevertheless a potent background to the conception of justice, in preserving confidence in enduring integrity and security of a legal system.
It can be vividly seen through many cases and laws that principle of presumption of innocence has been watered down at sake of public policy and integrity of nation, but its high time for Indian judiciary to realize the rights of accused and treat him innocent until proven guilty. Rationality should never overpower principles of justice, never. We need a balance between both. Court needs to take stronger steps to recognize this human right and include it as fundamental right under article 21.
This is how innocent until proven guilty is practically implemented as guilty until proven innocent and is a grave violation of human rights. We need a justice delivery system where accused rights are not undermined and he/she is innocent until proven guilty.
3.Conclusion:-
Presumption of innocence has today been watered down on the pretext of speedy justice but one should rememberjustice hurried is definitely justice buried. Indian criminal law is on the path of deterrence and thus enacting such laws which constantly overlook the rights of the accused should be a worrisome practise. It should never be forgotten that in a criminal trial the accused has to establish his innocence and not prove it and it is sufficient if he raises a doubt as to his guilt.
The courts have full authority, rather I would say a constitutional duty to strike off laws which scratches the fundamentals and the basic structure of our Constitution and the courts get this power from the Constitution itself, here lies the beauty of the majestic document the Indian Constitution and the Maneka Gandhi pronouncement which entirely opened the doors of judicial review of laws, which was already intended by the Constituent Assembly and that the law has to be tested by the courts that whether it follows thesubstantive due processor not.
It is now for the courts and courts alone to take a robust standing in achieving and reiterating the elixir of Indian Criminal Jurisprudence i.epresumption of innocenceas a fundamental human right and include it more explicitly within the contours of Article 21. The Supreme Court of India is not just a court of law, but also a court of equity and hence the constitutional courts are to do justice and not just to follow the legislation like the English courts, as it is stated by the apex court,Justice is a virtue which transcends all barriers and the rules or procedures and the technicalities of law cannot stand in the way of administration of justice. Law has to bend before Justice.(2)
4.Citation:-
1.Yogitaaggarwal,"Guilty Until Proven Innocent" available at:https://www.legalserviceindia.com/legal/article-4679-guilty-until-proven-innocent.html (last visited on 5th Dec 2023)
2. Ajj Murjani ," Guilty Until Proven Innocent-Recent Scenario Of Criminal Jurisprudence" available at:https://www.legalserviceindia.com/legal/article-2277-guilty-until-proved-innocent-recent-scenario-of-criminal-jurisprudence.html (last visiten on 5th Dec 2023)
