Aakar Patel | ‘Presumption of guilt’ violates a key principle of common law

India follows the system of common law, introduced to it by Great Britain. However, it has introduced some innovations in its laws as an independent nation, and one of these is to reverse the burden of proof. In several criminal laws in India, and especially those which have been enacted or brought into force after 2014, there is a reversal of the burden of proof. This means that there is a presumption of guilt. The State now assumes that you have done something wrong, and it is for you to demonstrate your innocence.

This is the opposite of normal criminal law. For instance, if someone is found with a knife next to a corpse, it is for the State to prove that the person committed murder. However, there are laws in which the State begins with the assumption of guilt. The National Register of Citizens in Assam is one such instance. All individuals in Assam had to submit to the government documents which showed that their ancestors had been in Assam as citizens before 1971. Those who could not have to line up before government tribunals and prove that they were legitimate. If they could not, they were locked up. Hundreds of people are in jail today because of this and more jails are being constructed.

British law says that where a legal burden of proof is on a defendant, they need not prove the issue beyond reasonable doubt. The bar is low. But in India the bar is quite high as we can see in Assam and elsewhere.

India has enacted the so-called “freedom of religion laws” in several BJP-ruled states, reversing the burden of proof for conversions. The law was first passed by Uttarakhand in 2018, and then came the Himachal Pradesh Freedom of Religion Act 2019, Uttar Pradesh Vidhi Viruddh Dharma Samparivartan Pratishedh Adhyadesh 2020 (Prohibition of Unlawful Conversion of Religion Ordinance), Madhya Pradesh Dharma Swatantreya Adhyadesh 2020 (Freedom of Religion Ordinance) and Gujarat Freedom of Religion (Amendment) Act, 2021.

These laws virtually criminalise marriage between Hindus and Muslims. They say that if anyone converts before or after marriage, then the government will declare the marriage null and void, even if there are children. The burden of proof to show that the conversion was not fraudulent, through undue influence, or coercion is on the spouse and the family that the person is marrying into. Those who change their faith without an application to the government are sent to jail. The other unique thing about these laws is that they do not apply to Hinduism. The original law in Himachal Pradesh says that “if any person comes back to their ancestral religion”, then this shall not be deemed as conversion. The laws does not define what “ancestral religion” means, but its meaning is clear: those who convert to Hinduism will not be punished.

The Uttar Pradesh Recovery of Damage to Public and Private Property Act 2020 was enacted after the UP police shot dead 21 protesters during the anti-CAA protests last year. The law gives the state government the power to fine people it suspects of having damaged public property and seizing their homes and other property. Even if the accused is unable to appear before the tribunal, the orders for attachment can be passed which cannot be appealed.

Another set of laws, also passed after 2014, reverse the burden of proof on cow slaughter. The laws were also passed by BJP state governments. They are the Maharashtra Animal Preservation (Amendment) Act 2015, the Haryana Gauvansh Sanrakshan and Gausamvardhan Act 2015, the Gujarat Animal Preservation (Amendment) Act 2017, and the Karnataka Prevention of Slaughter and Preservation of Cattle Act 2020. The burden of proof is reversed and if one is accused of killing a cow or possessing beef, then it is for the individual to show that they did not kill the animal or that the meat in their fridge is not beef.
Gujarat’s punishment for cow slaughter, which is an economic crime in India because it aims to protect animal husbandry, is life in jail. No other economic offence draws this sentence. In 2019, under the new law, a Muslim man was sentenced to 10 years in jail after he was accused of serving beef at his daughter’s wedding. The police could not prove that this had happened. In that case, the judge said, it was for the man to prove that he was innocent. Because it was not possible to test food that had already been eaten, the court sent him to jail.

Those who transport cattle except under strict conditions are also liable under the law to have their vehicles permanently seized and fined Rs 5 lakhs.

Other laws which have reversed the burden of proof are the famous UAPA, which makes it difficult if not impossible for people to get bail once they are accused. All Indian states have preventive detention laws, through which the government can jail people without their having committed a crime on the presumption that they will commit a crime in the future.

Interestingly, the BJP in its earlier avatar as the Jan Sangh had opposed preventive detention laws, but today it’s the champion of these laws. The other thing to note is that presumption of guilt laws have been creeping in since 2014, but there is no resistance or even debate on whether we should have them, apparently because the average Indian’s faith in the system and its fairness is absolute.