*Arnav Singh

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This article examines the paradox inherent in the POCSO Act’s reversal of the burden of proof, which risks eroding the presumption of innocence in criminal law. It highlights judicial inconsistencies in interpreting “sexual intent” and the evidentiary thresholds required to trigger this reversal. By comparing POCSO with NDPS and sedition laws, it shows how subjective standards undermine fairness and consistency. The article argues for Supreme Court-mandated guidelines and evidentiary standardisation to balance victim protection with due process rights.

Introduction

A division bench of the Supreme Court comprising J.J. Dipankar Datta, K.V. Vishwanathan, and Sandeep Mehta recently overturned convictions of two school teachers for sexual harassment under § 11 (i) read with § 12 of the Prevention of Children from Sexual Offenses (hereinafter, POCSO) Act and criminal intimidation under § 506 of the IPC. The case, founded on the testimony of a 13-year-old student alleging sexual harassment by teachers, has raised significant issues about procedural complications of trials under the POCSO Act.

These include (1) what constitutes sexual intent in POCSO cases, and (2) determining the threshold of evidence required to reverse the burden of proof. These questions are crucial since POCSO trials deviate significantly from fundamental concepts of criminal law, such as the burden to prove guilt beyond a reasonable doubt and the right of the accused to be innocent until proven guilty. The proponents of POCSO argue that such deviations aim to rectify the power imbalance in cases of child abuse and the enforcement. However, the enforcement raises concerns about its inherent potential for abuse. This creates a paradox between the need for deviations on one hand and the preservation of the presumption of innocence on the other.

This article, first, sheds light on the challenges caused by the lack of a clear definition of the word “sexual intent” by examining the judicial inconsistencies in interpreting the same. It then performs a careful analysis of the principle of presumption of innocence to establish the normative reasoning and the precedential importance of the same. It argues for a higher judicial clarity with respect to fact-specific inquiry of the constituents of sexual intent, along with the evidentiary thresholds required to reverse the burden of proof – the two key challenges in the effective implementation of the act. Finally, the article performs a comparative analysis of reversal provisions in POCSO with those in NDPS and sedition laws, to argue that discrepancies in interpretations may only be addressed by a comprehensive standardisation of evidential thresholds.

Interpreting Sexual Intent under the POCSO Act: Examining Judicial Inconsistencies 

§ 30 of the POCSO Act empowers the court with the authority to presume ‘sexual intent’ during the trial. However, the interpretation of “sexual intent” under the POCSO Act remains contentious.

Before examining specific cases, it is important to investigate the normative consequences of the reversal of the burden in a definitional vacuum. Unlike other special laws which sanction a reversal of the burden, such as the NDPS, the nature of evidence examined during trial is unique in POCSO. An accused in NDPS, notwithstanding other challenges, may still rebut presumptions of possession through either challenging the chain of custody or even through an alibi. However, the very nature of presumption in POCSO is subjective, warranting a disapproval of internal motivations. This creates a particular scenario for the accused, having to disprove a presumption about mental state and intentions, without having clear parameters on which the defence may be based.  

In State v. Raman Kumar [2015], the court held that the accused was guilty based on circumstantial evidence since there was no need to prove the existence of a culpable mental state.

This presumption of sexual intent enabled the court to incriminate the accused based on the actus reus itself, assuming the mens rea. Though this procedure is in line with the statutory requirements, it poses bigger questions about what the determinants of sexual intent are. If the term ‘sexual intent’ is something that has been assumed to exist in a trial, and the onus to rebut the same rests on the defence, then the ambiguity regarding the definition and determining factors of the same can do grave injustice to the accused. The accused, herein, is tasked with the challenge of an impossible defence preparation. Unless the accused is clearly and objectively, is made to know the parameters which are needed to enable the rebuttal, the defence always risks falling below undefined standards.  This further breeds judicial inconsistencies in light of the Supreme Court emphasising that ‘sexual intent’ is critical in assessing cases of sexual assault. Thus, the position of the law is that a requirement (presumption) is central to the trial. Yet, the parameters for the rebuttal (the onus on the defence) remain undefined. 

In Mohammad Saimullah vs. The State of Meghalaya (2022), the court demonstrated that determining sexual intent is influenced by the circumstances of the crime (context, motive, and place of contact), without addressing the question of definition. This ambiguity is problematized here because the nature of the law must be objective and universal. Even though the law herein permits considerable discretion, fact-specific inquiries must be universal in nature. In the case of Rohit Pal vs. The State of West Bengal [2022], the court held that the intent of the accused behind giving physical punishment to the victim was not sexual, rather disciplinary and corrective. While both rulings (Mohammad Saimullah and Rohit Pal) may look consistent with the letter of the law, they are inherently contradictory. The latter further problematizes the problem since the nature of the act, prima facie, does appear to be incriminating. This further sheds light on the extremity of the spectrum of judgments which are based on the same provision of law. The court has thus selectively chosen to apply holistic reasoning to cases, which leads to disparate outcomes in cases of a factually similar nature. To address this inconsistency, the courts have to adopt a standardised framework. The rebuttable presumption can only serve the ends of justice if the courts lay parameters like objective behavioural criteria or contextual factors which aid the exercise of standardisation.

Due Process Erosion in POCSO Trials

Blackstone’s dictum, “better ten guilty escape than one innocent suffer”, underscores the foundational nature of the presumption of innocence in criminal jurisprudence. In Gurbaksh Sibbia, the Supreme Court held that this presumption is a foundational to Indian criminal law jurisprudence. Further, in Narendra Singh, the Supreme Court established that the prosecution must prove guilt beyond a reasonable doubt, and not merely establish the case for a possibility. The core distinction, thus, lies in the distinction between “maybe” and “must be”. These two phrases underscore the two extremes of a spectrum, wherein one is mere speculation and the other is certainty. Speculation, (maybe) while sufficient for establishing a reasonable doubt, is not sufficient to achieve just convictions, as is the case with certainty, which argues for proof beyond a reasonable doubt. This distinction, rather than the precedence for certainty in convictions, finds substance in Article 21 of the Constitution.

However, there are reasonable restrictions on this principle in special law such as POCSO, NDPS and Sedition. For charges under the NDPS Act and sedition statutes, the burden of proof is reversed, thereby placing it on the accused. Possession of contraband itself establishes a presumption of guilt under the NDPS Act. Meanwhile, the stakes in sedition trials, given the potential threat to the state’s very survival, warrant additional limitations on the presumption of innocence.

The case of POCSO trials is unique as it entails both a reversal of the burden and a rejection of innocence. Yet the contention herein is not with these restrictions themselves, but with the lack of standardised and universal parameters sufficient for the rebuttal therein

A barrage of systemic problems arises henceforth. First, since both reversal of the burden and a rejection of innocence are at play, even objective evidence is viewed through an ad hoc lens of presumed culpable mens rea. Higher courts, as well, in the absence of conclusive guidelines for the determination of mens rea, would be incapable of rectifying such decisions. Thus, these provisions affect not only the fact-finding enquiry in lower courts, but also steamroll the very function of appellate powers of higher courts, underscoring both statutory and structural problems.

Reverse Burden in POCSO, Sedition, and NDPS: A Comparative Analysis

The reversal of burden and the presumption of a culpable mental state are facilitated by  § 29 and 30. While § 29 enables a rebuttable presumption, § 30 enables the court to presume the culpable mens rea. The result of these provisions is that the actus reus itself could be construed as compelling evidence of a criminal liability when charged under POCSO. The prosecution is enabled by §29 & 30 to merely establish two things during trial: [1] the identity of the victim as a minor, and [2] a likelihood of the occurrence of the offence. This prima facie establishment of these two elements is enough, at least under the text of the law, to reverse the burden of proof.

Notwithstanding the disparate judgments by the courts, the bare text of § 29 and 30 is enough to turn the onus onto the accused to rebut the presumptions, after a prima facie case is made. However, the contention is that there is no set threshold up to which the prosecution has to make a prima facie case. The lack of guidelines pertaining to evidence of a likely occurrence of crime therein, unlike the relatively linear nature of the fact-finding enquiry done by trial courts in NDPS and Sedition, gives excessive leeway to prosecutors in POCSO trials.

A comparative analysis between the reverse burden clauses in NDPS and Sedition, and POCSO breeds contrary and disparate outcomes due to not only the very rationale for reversal but also the significant differences in evidentiary standards. As illustrated in the table, the rationale for the reversal of the burden is evidenced by the Supreme Court’s acknowledgement of victims under POCSO as uniquely vulnerable. Even if the rationale of unique vulnerability speaks to the reversal of burden, it does not extend to the presumption of mens rea. The logic of presumption is justified in NDPS and POCSO due to the very nature of objective factual enquiry in one and the challenges to internal security and widespread violence in another. However, the subjective nature of the very factual enquiry in POCSO, coupled with the presumption of intent, not only undermines a neutral enquiry into the evidence on record, but also facilitates the right to a fair trial.

These challenges are further exacerbated by the differing degrees and nature of evidence required in the trial of various charges under POCSO. This gives rise to the objective-subjective evidence problem. In charges related to CSEAM [pornography offences], the nature of the fact-finding enquiries is objective. Whereas the same in a charge of harassment under § 11 is inherently subjective. The contention herein is not with the differing nature of factual enquiry. However, a varying nature of factual enquiry within the same act, in light of contradictory views of HCs on the same leads to disparate outcomes and reduces the universality of outcomes.

This subjectivity underscores the unfair burden on the accused in POCSO cases and raises the possibility of false lawsuits. In sedition and NDPS, the nature of the fact in contention is objective. However, in POCSO, the accused may find it nearly impossible to prove their innocence after a reversal of the burden because of the subjective nature of allegations (touch, intent, et cetera). The complexity of defence is higher in POCSO cases because the very nature of the act is contested.

Evidentiary Thresholds in POCSO Cases: The Need for Standardisation

Before shifting the burden of proof in POCSO, the prosecution must prove a prima facie case. Inconsistencies in verdicts are a result of variations in the interpretation of evidence. threshold required for this inversion. These discrepancies result from conflicting precedents regarding the threshold of evidence required to establish a prima facie case. This places an excessive burden on the accused to refute accusations and prove the non-existence of mens rea.  In this section, using just 3 judgements from different HCs, I will establish that the lack of standard thresholds to trigger inversion leads to disparate and unpredictable outcomes.

In Sahid Hosain Biswas vs. The State of West Bengal, the Calcutta High Court ruled that fundamental facts which are crucial to the trial must be proven before the reversal of the burden is triggered, along with the presumption of intent under § 29 & 30. Interestingly, in ruling so, the court equated fundamental facts to leading evidence, thereby ordering that the same be submitted at the preliminary stage of trial. Thus, the threshold required to reverse the burden herein was more than a likelihood or possibility of offence. The court guaranteed that the charges are substantially supported and corroborated by independently verifiable evidence before reversing the burden. The court, thus, while conforming with the statutory requirements under § 29 & 30, set the threshold for the reversal higher than merely establishing a likely occurrence.

Meanwhile, in opposition to this, the Kerala High Court in Justin @ Renjith vs. the Union of India held that by simply proving the age of the victim at the prima facie stage, the reversal of the burden can be triggered. Unlike the previous case, the court merely focused on the probability of the offence (1) and the age of the victim (2) as preliminary requirements to trigger reversal.

The courts in Justin Renjith and Sahid Biswas demonstrate how, in lieu of clear and comprehensive guidelines by the Supreme Court, the same statutory provisions yield contradictory outcomes. These outcomes create geographical disparity and substantially divergent standards in contrast to equal protection guarantees.

The Delhi High Court in the case of Arun Kumar Shukla vs State further problematizes the reverse burden clauses. In casu, the court opined that although medical evidence presented in such trials might be of significant importance, they still do not qualify to be called ‘conclusive evidence’.

The contention that arises here is that if the very nature of medical evidence (arguably one of the only conclusive evidence available during trial) is inconclusive, yet the reversal is triggered per § 29 & 30, the Court gives birth to an impossible standard. This impossible standard is the duty of the defence to rebut a presumption of guilt which even the prosecution cannot conclusively prove. By acknowledging the significant importance of medical evidence but the lack of conclusiveness thereof, the court essentially agrees to shifting the burden even when the prosecution fails to meet basic evidentiary requirements of medico-legal cases (MLCs). The accused herein is tasked with the impossible challenge to rebut conclusively a charge which itself cannot be conclusively proven.

The aforementioned analysis of the 3 judgments underscores that the reversal clause of the act is triggered notwithstanding the nature or degree of evidence available; it merely depends on the geographic location of the court.

Conclusion 

Finding an equilibrium between preserving the rights of the accused and ensuring justice for victims is crucial due to the complexities inherent in POCSO trials. § 29 and § 30 of the POCSO Act, which empower the court to invoke the reverse burden of proof, force the accused to refute allegations and contest the non-existence of a fact. This reversal occurs after the prosecution submits primary evidence to establish a prima facie case. However, different courts have varying evidentiary standards for reversing the burden, resulting in disparate judicial interpretations.

In light of such contradictions, the Supreme Court should issue binding guidelines as it did in the D.K. Basu case, taking cognisance of the lack thereof. The guidelines should primarily address two things: elements of evidence and their interpretation [1], the threshold of evidence required to trigger reversal [2]. The adjudication of the case thereafter is settled law, which the trial courts are more than competent under the current statute to deal with.

Addressing the same, the Supreme Court should list the typology of evidence admitted and conclusively give directions pertaining to the threshold of proof required at the prima facie stage to trigger reversal. Moreover, since an inexhaustive list of acts can be construed to be harassment in light of presumed intent, the court should direct the sessions & POCSO courts to only presume mens rea once the burden is actually reversed, keeping the prima facie stage of trial strictly a fact-finding exercise, inclusive of contextual determinants. To address the problem at the root, such directions should be a part of standardised training and capacity-building modules of the National Judicial Academy. To create a legal system that safeguards victims and upholds the rights of the accused, it is essential to rethink these provisions.

*Arnav Singh is a student at NLSIU, Bangalore, and an observer at the Law School Policy Review.