RESERVE ONUS CLAUSE

The presumption of innocence is a human right 1, but has not specifically been given the status of a
fundamental right. 2The fundamental priniciple rests the burden of proof on the prosecution. However,
the reverse onus clause shifts the burden on the accused, this does not limit or deprive the accused from
his rights and from a fair trial. The presumption of innocence is well established under the Indian
Criminal Law, there exists exceptions to this rule. An indication of reverse onus clause is found in socio-
economic offences where the interest sought to be protected is not an individuals but that of the society
which has an interest in protecting health, property and economic interests. There exists a legislative
tendency to enact reverse onus clauses on the pretext of state security. Food Adulteration Act, 1954,
section 10(7-B), The essential Commodities Act, 1955, section 10C, The Narcotic Drugs and Phychotropic
Substances Act, 1985, section 35,54, 66. Provisions for reverse burden are not limited to special
enactments but also exist under general statutes, e.g. Indian Penal Code, Evidence Act. S. 101, Evidence
Act, 1872, does not make a distinction between the prosecution and defence as it simply states that the
burden of proof is on the person who wishes to establish its existence. Matters relating to health or
material welfare of the community as a whole, a special efforts for the enforcement is the need of the
hour hence conforming to the traditional standard of proof would impede the state’s effort to
effectively address and regulate the escalating incidents. 3 Between section 5 and said amendments,
exhaust all cases of possession of boive flesh and trade of such flesh each of which amount of an
offence.

The said act should be of such nature that has a larger detrimental effect on the society, in manner that
affects the social fabric and economy of the state. In Babu V. State of Kerala, the court recognized
certain statutory exceptions, mentioning said the nature of the offence, its seriousness and gravity has
to be taken into consideration. 4 (ADD RELEVANCE OF COW SLAUGHTER). Furthermore Section 106 of
the Indian Evidence Act 1872, statutorily legitimizes for the establishment of an evidentiary reversal of
the burden of proof in situations where the evidence is solely within the knowledge of the accused. In
Noor Aga V. State of Punjab5, while dealing with section 35 and 54 of NDPS Act, held that the reverse
onus clause are not ultra vires in the constitution which are justified on both policy considerations and
social control concerns. The justified shift in legal burden on the ground that the shift is not automatic
and occurs only once the prosecution has met the threshold of establishing the actus reus. An intitial
burden exists upon the prosecution and only when it stands satisfied would the legal burden shift 6. If the
prosecution fails to prove the foundational facts so as to attract the rigorous section 5A, B,C,D, of the
act, the actus reus which is possession of contraband by the accused cannot be said to have been
established.

Article 21 and Reverse Burden

1
Narendra Singh v. State of M.P. (2004) 10 SCC 699: 2004 SCC (Cri) 1893; Ranjitsing Brahmajeetsing Sharma v.
State of Maharashtra (2005) 5 SCC 294: 2005 SCC (Cri) 1057 and Rajesh Ranjan Yadav v. CBI (2007) 1 SCC 70: (2007)
1 SCC (Cri) 254
2
Noor Aga v. State of Punjab (2008) 16 SCC 417.
3
47TH Law Commission Report
4
Babu v. State of Kerala (2010) 9 SCC 189: (2010) 3 SCC (Cri) 1179: SCC at page 201, para 27
5
Supra, 2.
6
Seema Silk & Sarees v. Directorate of Enforcement, (2008) 5 SCC 580
The Supreme Court has time and again held that procedure established by law under article 21 of the
Indian Constitution must be fair, just and reasonable. Constitutionalisation of the presumption of
innocence was clearly stated in P.N Krishna Lal V. Govt, of Kerala 7, where it was explicitly laid down that
presumption of innocence is not a constitutional guarantee and reverse onus clauses cannot be declared
as ultra vires. In Sheikh Zahid Mukhtar Vs. State of Maharashtra 8 established a four fold test for
considering the burden of any reverse burden clause, only when it satisfies all these conditions shall it
be considered valid. The said amendments qualify all the conditions and hence justifies the limitation
placed by law.

7
P.N. Krishna Lal v. State of Kerala, AIR 1995 SC 1325 (per Ramaswamy, J.).
8
Shaikh Zahid Mukhtar vs The State Of Maharashtra Through ... on 6 May, 2016