Defeating the presumption of innocence! | Gajanan Khergamker

Defeating the presumption of innocence!

Justice Verma Committee

Justice Verma Committee

The Verma panel’s report, outlining the recommendations for dealing with gender violence in India, has predictably touched upon the most pertinent and populist issues. A few introductions to the list of acts on sexual violence and harsher punishments for rape may be the most direct outcome of the report.

By suggesting that voyeurism, stalking and using obscene language and gestures, be made punishable by a maximum jail term of three years, the panel offers very viable solutions to prevent crime and create a distinct sense of deterrence among potential felons, who get emboldened with the victim ignoring each act of sexual innuendo or lewd comment, till they progressively reach a peak when the perpetrator either commits an act of sexual assault or, out of a frustrated bid, maims the victim by say an acid attack. The new additions to crimes, aim to address issues of criminal behavior which were overlooked by the penal system, till date.

The panel’s suggestion to review the Armed Forces Special Powers Act (AFSPA), bringing the security forces under the preview of the ordinary law instead of basking in the secure privilege of their own security laws, is another step in the right direction. The armed forces continue to be shielded by the Armed Forces Special Powers Act.

Passed by the Parliament in 1958, the Act comes into force when the Indian government designates a territory as a ‘disturbed area’. Manipur, for one, was declared disturbed in 1980 and concurrently became the target of repeated human rights violations and atrocities, allegedly committed by members of the Armed Forces. The situation has been similarly volatile in Nagaland and many parts of Assam too.

The custodial death of Thangjam Manorama, who was picked up on July 11th 2004 by soldiers of the paramilitary Assam Rifles from her home on alleged charges of links with separatist rebels, is a case in point. Manorama’s dead body was reportedly found four kilometres away from her home in Imphal with multiple bullet wounds and signs of torture. The entire state came to a standstill under the backlash of huge protests following the brutal and tragic death.

Six years later, the Guwahati High Court had on August 31st 2010, authorised the state of Manipur to act on the report of the one-man commission in the alleged rape and murder of Manorama.

Another pertinent suggestion by the Verma panel is the institution of a Police Complaints Authority at the district level to examine ‘complaints against police officers who do not register complaints of gender crimes’. The panel also suggested that policemen, who fail to register complaints or abort an investigation, should be punished.

Also, all police stations should have CCTV’s as a rule, this will ensure that proper procedures are followed while handling, recording and filing complaints. This should be followed by specifically distinguishing police personnel who would investigate gender crimes from the daily law and order police personnel, to ensure speedier investigation, better expertise and improved rapport with the public. There is also a need to increase the number of female police on patrol and on duty in the police stations so women complainants feel a sense of comfort and security while filing sexual assault complaints.

The mere presence of a CCTV at a police station, whose recording may be demanded through an RTI application, will be resisted bitterly but would change things for the better, almost overnight.

What is of contention in the Verma report is the view that lawmakers who have been charged in a court of law with serious offenses, such as sexual offences or dowry crimes including those of rape and other types of sexual assault, should ‘voluntarily vacate’ their seats. This is based on the premise that a Parliament which has members with criminal records is unlikely to pass any effective Criminal Law Amendment reform. But, the notion contravenes the very basis of law, the presumption of innocence until proven guilty.

The mere taking cognizance of an offence doesn’t prove his guilt. India follows the English jurist William Blackstone formulation which reads: better that ten guilty persons escape than that one innocent suffer in his Commentaries on the Laws of England.

An accused is presumed innocent and he cannot be held guilty on the basis of suspicion, however strong it may be, held the Supreme Court while quashing an order passed by the Assam High Court holding an accused guilty of committing murder. “It is equally well-settled that suspicion, howsoever strong can never take the place of proof,” had ruled a bench headed by Justice Dalveer Bhandari. “There is no reason for us to generalise and say that there is an attempt not to register cases against assailants and when such cases are registered, loopholes are intentionally left to facilitate acquittals or that the evidence led in the courts is deliberately distorted,” the court said. It termed such lapses in certain cases as “aberrations.”

Incidentally, the issue of presumption of innocence also appears in the Bible (Genesis 18:23-32), as Abraham drew near, and said, “Will you consume the righteous with the wicked? What if there are fifty righteous within the city? Will you consume and not spare the place for the fifty righteous who are in it? … What if ten are found there?” He (The Lord) said, “I will not destroy it for the ten’s sake.”

The Latin expression Ei incumbit probatio qui dicit, non qui negat means the burden of proof lies with who declares, not who denies, detailing the principle that one is considered innocent until proven guilty. The burden of proof is on the prosecution which has to present enough compelling evidence to convince the judge, on his part restrained by law to consider only actual evidence and testimony that’s legally admissible and legally obtained, that the accused is guilty beyond reasonable doubt. In the eventuality of even reasonable doubt being there, the accused is to be freed.

So, by that logic, merely facing a criminal charge, however heinous, doesn’t translate into guilt. Demanding their debarment can be perceived as concluding their presumption of guilt, which may pander to a populist view but, in reality, seriously damage the very pith of democracy and miss the real point itself. For this very reason, the government has been sidestepping the Election Commission’s constant proposal to debar candidates against whom courts have framed criminal charges. Debarring a candidate from representation almost places the onus of guilt squarely on the candidate whereas it could be far from the truth.

What we must ensure, by amendment or campaign, is the swift disposal of cases by process of law. If there are an adequate number of judges, procedures in place to handle daily hearings and swift disposal of cases, we could easily eliminate prospects of having a ‘guilty’ or a ‘criminal’ contestant vying for polls, leave aside win elections to qualify as a member of Parliament and then impede the procedure of legislation on self-defeating issues, in a situation that’s perceived as a conflict of interest.


(The views expressed in this column are the writer’s own)

Please Note: Tehelka doesn't have regulatory control over messages appearing on social media including Facebook and Twitter. Tehelka also doesn't subscribe to any views or comments by the readers.