Nixon in 1968: drug abuse is “public enemy number one.” “In order to fight and defeat this enemy,” he continued, “it is necessary to wage a new, all-out offensive.” With that statement, the “war on drugs” began.

John Ehrlichman, a top Nixon aide (1994): The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities.… Did we know we were lying about the drugs? Of course, we did.

Introduction

The presumption of innocence is a sacrosanct principle in criminal law. The Apex court states forms a part of “due process of law” under Art. 21 of the Constitution. Erosion of this presumption has been justified using counterweighing principles of “higher” importance, such as public welfare.

One such example of a “reverse onus clause” is S. 35 of the NDPS Act (“Act”). S. 35(1) states that for all offences under the act, a “culpable mental state” is to be presumed. It is further laid down that the “fact” that the accused had no culpable mental state has to be proven beyond reasonable doubt. Over the course of this article, I engage with three questions concerning this provision. First, what are the justifications for the state to adopt such a law? Second, stemming from these justifications, can the presumption of constitutionality protect laws granting draconian powers to the state? And last, can a balance be struck between the legal presumption of innocence and the presumption of constitutionality?

Identifying the Rationale

The Apex court in Nikesh Tarachand Shah states that the right to be presumed innocent is a part of the right to a fair trial of an accused. What justifies the state to usurp this right? I outline three broad justifications used by authors, reports and judgments of the ‘reverse burden’.

First, the “risk” to “public welfare”. Ashworth argues that the state tends to weigh such offences against the “risk” the offenders cause by being a part of society. In this case, the offender’s presence in society would likely result in an overall increase in drug use and would therefore be damaging to public welfare. This is reflected in the reasoning used in High Court bail orders.

Second, difficulty in meeting the ordinary burden of the prosecution; the court in Noor Aga has recognized the purpose of the legislature to reduce the burden on the prosecution in certain cases. Further in Manoj, the court further strengthened this defense by stating thatsince the accused can rebut these presumptions, these presumptions are proportionate and reasonable.

Third, the severity of these criminal acts. Nixon led America (and consequently, the world) into the “Just Say No” campaign against drugs, followed by an era of criminalization and prohibition leading to legislations like the Act. There is an embedded presumption that the use and propagation are severely harmful to the societal welfare. Using these justifications, it is argued that the law operates on the following line of reasoning:

The presumption of innocence can lead an offender to be acquitted. An accused guilty of such a grave offence against the welfare of the society cannot go unpunished. The law must therefore combat the possibility of the acquittal of a possible offender. This line of reasoning has been held to be valid in Noor Aga.

Sitting on the Constitutional Fence

“When two elephants fight, it is the grass that gets trampled.”

The reasoning adopted by the Court in Noor Aga is an act of ‘Judicial negotiation’ in “reverence” to the legislative mandate. Many principles adopted by Noor Aga have since been refuted by the judicial, empirical or doctrinal developments.

First, Noor Aga relies on the principle that it is an “established principle” that presumption of innocence is only a human right and not a constitutional right. The court however, in subsequent cases has contrasted with this assertion. In Sahara v SEBI, it was conclusively held by the court that the presumption of innocence is a constitutional right protected under both Article 14 and 21. The inclusion of Art 21 imposes an obligation of being ‘just, fair and reasonable’ upon the legislature.

 

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