On calling for a review of the 27^th July 2022 verdict of the Supreme Court upholding the Prevention of Money Laundering Act (PMLA), 2002, then Chief Justice NV Ramana commented that the “burden of proof” was amongst one of two prima facie issues that require consideration. When governments across the world are acquiring more extraordinary powers to govern people, it is essential to review the burden of proof, not just in the light of PMLA but also in other laws that reverse the presumption of innocence.

The presumption of innocence is a legal principle going back to Roman, Talmudical and Islamic law. Article 11 of the Universal Declaration of Human Rights enshrines it. The Constitution of India creates the basis of the “presumption of innocence” under Article 20 (3), which states that: “No person accused of any offence shall be compelled to be a witness against himself”. Sections 101 to 111 of the Indian Evidence Act provide that the burden of proof needs to be made by the party asserting the crime. However, the Act also provides exceptions to the presumption of innocence in “waging war against the State”, dowry deaths, the suicide of a married woman and absence of consent in rape.

Thus Section 111A shifts the burden of proof on the accused in cases dealing with “waging war against the State” in a “disturbed area” under sections 121, 121A, 122 and 123 of the Indian Penal Code. Section 113A of the Evidence Act shifts the presumption of the abetment to suicide on the husband in case of the suicide of a wife within seven years of marriage, and Section 113B creates a presumption of guilt in case a woman harassed for dowry dies, on the person who did the harassment. Section 114A presumes the absence of consent, where sexual intercourse by the accused has been proved, and the woman alleges rape. This provision also comes into play for custodial rape, a separate crime under Section 376C of the Indian Penal Code. The Protection of Children from Sexual Offences Act, 2012, under section 29, also presumes the guilt of the accused.

Laws formulated to deal with acts of terrorism in India have placed the presumption of guilt on the accused. For example, it featured in the Terrorist and Disruptive Activities (Prevention) Act, which was in force between 1985 and 1995. Provisions of the Prevention of Terrorism Act, in effect between 2001 (as Ordinance) and 2002 to 2004 (as Act), effectively put the burden of proof on the accused. In addition, legal experts have argued that the Unlawful Activities (Prevention) Act, as amended in 2019, also puts the burden of proof on the accused. Another law presumption of guilt is the Narcotic Drugs and Psychotropic Substances Act, 1985, where under Section 68J, the burden of proving that property specified under a notice served as per the Act is not illegally acquired property shall be on the person affected.

At a time when legal experts and human rights advocates are still grappling with the vexed question of how reversing the burden of proof is a progressive provision in some cases and a draconian action in other cases, it is dismaying to see how the provision is being used in contexts where it is not really needed and only serves to accumulate further power for the State.

The PMLA amendment has impacted fundamental constitutional mandated rights, especially the right to liberty and the right to property. The original Act of 2002 was amended mainly as a result of an international commitment to deal with money laundering of proceeds of criminal nature which had consequences on the financial health and systems of countries, given the transnational nature of transactions.

One could argue that this amendment was needed, as was action to limit the scourge of money laundering. However, over two hundred petitions were filed against the amendment because they violated constitutional mandates, procedures of law and personal liberty. Petitioners argued that the amendment had given the Enforcement Directorate and, therefore, the Government unchecked powers to summon, arrest, and raid the accused, making bail virtually impossible.

The presumption of guilt differentially impacts people from vulnerable backgrounds. It is even more difficult for them to prove their innocence when the assumption is that they are guilty. Conscious and unconscious institutional and societal bias comes up against them.

The PMLA would thus strengthen a worrisome trend that we see, not just in India but across the world. The rise in pre-trial detention across the world is arguably a result of the strengthening of the presumption of guilt.

The argument is that while the law makes pre-trial detention an exceptional measure, the reality is that pre-trial detention has increasingly become the default response. And now, in an increasing number of cases, the law is making pre-trial detention the default. With the criminal justice system unable to handle the volume and complexity of cases, the incarceration of undertrials is increasing.

A 2019 report by the International Centre for Prison Studies states that there are three million undertrial prisoners across the world, an increase of 15% from 2000 to 2016. The report starts that pre-trial prisoners are a third of the world’s prison population. National Crime Records Bureau data shows that in India in 2020, 76% of the prison population were undertrials. Undertrial prisoners in Indian jails had risen to 3.72 lakhs in 2020, from 3.33 lakhs in 2019 and 3.24 lakhs in 2018. The 2020 figure represents an increase of more than six percentage points as a proportion of the total prison population.

As stated earlier, reversing the presumption of innocence and placing the burden of proof on the accused can be a progressive step in some instances, especially considering the vulnerabilities caused by an unequal and patriarchal society. Also, the scope has not been exhausted by the cases mentioned above. As argued by a law student, three Law Commissions and multiple Supreme Court judgements have recommended placing the burden of proof concerning violence and death under custody on the accused public servant.

However, we need to see if all instances are equally deserving of this provision. Does the objective of protecting the State merit the need to arm it with authority to place guilt and the onus of proving their innocence on any of its citizens? Should we not make a speedy trial mandatory in all these cases to ensure that the process does not become the punishment? At the very least, should we not subject this provision to a “governance audit” to see how this exceptional provision has served the cause of delivering justice while striving to establish constitutional values in an increasingly meaningful manner?

We look forward to the Supreme Court considering all these matters as they review the judgment upholding the PMLA.