The Fading Contours of Presumption of Innocence: PMLA and the Supreme Court's Dilemma
After the recent dismissal of Zakia Jafri’s petition by the Supreme Court, some of the world’s leading scholars urged it to review its numerous orders harming “human rights” in India. Similarly, in Vijay Madanlal Choudhary v. Union of India, the Supreme Court recently accepted a blank declaration under the PMLA, disregarding the “presumption of innocence” and breaching a fundamental human right. The article argues how the Supreme Court’s verdict in Vijay Madanlal Choudhary infringes upon the “presumption of innocence”, and its high time for the judiciary to acknowledge globally recognised human rights and provide them with a Constitutional status.
The presumption of innocence (the “presumption”) is conceived to be fundamental for protecting an accused from wrongful conviction. The underlying principle is that an accused should be conceived innocent until proven guilty. This principle is fundamental also because it is generally perceived better for the guilty to go free than for an innocent to be convicted. However, the legislative and judicial authorities, especially in India, have shown inconsistency in its application. The Supreme Court of India (the “Supreme Court”) recently, in the Vijay Madanlal Choudhary v. Union Of India (Vijay Madanlal Chaudhary), went a step ahead by upholding the validity of numerous provisions of the Prevention of Money Laundering Act, 2002 (“PMLA”) leading to grave concerns about the further erosion of the principle by accepting a blank declaration inscribed in the Act. The PMLA is an Act which is enacted to prevent money laundering and provide for the confiscation of property obtained through such unlawful methods. Several legal luminaries and scholars have accused the Act of being excessively arbitrary and violative of various fundamental rights, including Articles 14, 20 and 21 of the Constitution. However, this article is restricted to determining how the provision has breached the principle of “presumption of innocence” and how the Supreme Court has had a paradoxical approach in interpreting the said principle. The article also delves into a comparative interpretation of the principle in different jurisdictions. As per the author, by providing its approval to the impugned Act, the Supreme Court has neglected the basic tenets of criminal jurisprudence, leaving a dark spot on its esteem.
What is Wrong? PMLA and the Presumption of Innocence
The PMLA is an Act intended to deal with prosecution and punishment for the offence of “money laundering”, which a person commits when they have a relation with any activity with the proceeds of crime and has claimed such proceeds as their legitimate property. While the Act’s objective is legitimate, the procedure laid down for its completion diverges from the basic tenets of the law. One among its many deviations is Section 24 of the Act. Under this section, when an individual is charged with the offence of money laundering, it is their responsibility to show that the proceeds of the crime are legitimate assets. As per Section 24(a) of the Act, the Court must assume that the proceeds of crime are used in money laundering for those who have been charged with the crime, and under Section 24(b), the Supreme Court may make this assumption for those who have not been charged with the crime. Shifting the burden of proof onto the accused entirely dilutes the presumption of innocence. Further, for the reversal onus to be constitutional, the prosecution must first prove foundational facts establishing the main elements of the crime, but this requirement is not fulfilled by Section 24. Thus, by approving PMLA, the Supreme Court has disregarded the “presumption of innocence”, undermining the fair legal process to ascertain the criminal culpability of an individual.
India’s Conflicting Jurisprudence
The presumption of innocence is a cardinal principle of Indian criminal jurisprudence. But it has not received consistent judicial treatment over the years. The Supreme Court in Vijay Madanlal Chaudhary emphasised that although the principle is considered a human right, it can be overridden by law. However, this view of the apex court isn’t any new. For instance, in 1980, a five-judge bench in Gurbaksh Singh Sibbia v. State of Punjab acclaimed the principle as deeply rooted in our criminal jurisprudence but refrained from providing it with a Constitutional status. Similarly, in Noor Aga v. State of Punjab, the Court held that the presumption, although a human right, cannot be equated with the fundamental right adumbrated by the Constitution. A thawing moment came when in the Nikesh Tarachand Shah v. Union of India, the Supreme Court declared such a scheme to be ultra vires to the Constitution, but now by validating PMLA in Vijay Madanlal Chaudhary, the former has been overruled. While upholding the Act and venerating it to be in line with the recommendations of the Financial Action Task Force, the Supreme Court failed to acknowledge the essentiality of presumption, which also enjoys international recognition. Thus, by upholding the constitutionality of PMLA, the Court has not only breached the principle of natural justice but also impeded upon an essential human right acknowledged worldwide.
Interpreting the Foreign Position
The presumption of innocence is seen as a rudimentary part of criminal procedure, recognised in numerous human rights instruments (UNDHR, ECHR, ICCPR) and municipal laws. For this article, the author has focused on interpreting the presumption in the United States, the European Union, including the United Kingdom.
The presumption of innocence hasn’t been mentioned explicitly in the US Constitution. The principle, however, has long been recognised as an aspect of due process by the Fifth and Fourteenth Amendments Act. In the United States, the Courts have adopted a potent approach to upholding the presumption time and again. Further, a strict application of the rational connection test to determine the validity of reverse onus clauses has provided the principle with a higher degree of constitutional protection. The US Supreme Court referred to it in the case of Coffin v. United States as an absolute and primary principle laying at the base of the administration of criminal law. However, several attempts were made by the legislatures to introduce certain exceptions to the said principle to ease prosecutions. But the US judiciary, in numerous instances, has favoured the principle instead. The US Supreme Court even confirmed that although legislatures had the power to prescribe rules of evidence, they were subject to the Constitution. The US Supreme Court in In re Winship reaffirmed this principle.
The UK and the European Union
In the Woolmington case, the presumption of innocence was described as the “golden thread” running through criminal jurisprudence. Now, the principle has been enshrined in Article 6(2) of the European Convention on Human Rights (“ECHR”) and incorporated into United Kingdom law under the Human Rights Act, 1998. In the UK, reverse onus clauses were freely employed by the Parliament in a variety of statutes. The enactment of the Human Rights Act has resulted in many reverse persuasive burdens being read down to reverse evidential burdens. The ECtHR has held that the presumption of innocence is violated when the burden of proof is shifted from the prosecution to the defence. While referring to Barberà, Messegué and Jabardo v. Spain, the ECtHR remarked that “the burden of proof is on the prosecution, and any doubt should benefit the accused”. Though the accused’s right to be presumed innocent is subjected to the “presumption of fact or law”, the ECtHR mandated the nations to restrict their application within reasonable limits maintaining the defendant’s rights.
There is a universally acknowledged importance of “presumption of innocence” despite the legislatures’ attempt to interdict the principle by introducing reverse onus clauses. Though admitted by various judicial authorities in different parts of the world, this interdiction has been subjected to constitutional values. However, the acceptance of a blank declaration that the accused shall be simply presumed guilty as provided under Section 24 of the PMLA and assented to by the Supreme Court is unheard of. As discussed earlier, an individual’s right to be presumed innocent forms part of the general notion of a fair hearing in Europe, the United Kingdom and the United States. Further, in jurisdictions such as Canada and South Africa, the presumption of innocence has been conferred constitutional status. But in India, since the principle is not expressly specified as a constitutional right, the onus lies on the judiciary to confer it with the position it deserves. This, unfortunately, thus far has not been the case. Regardless of the position taken by the legislature, no reverse onus should be accepted by the judiciary where the law permits the conviction of an accused without the existence of reasonable doubt as to whether they committed the crime for which they have been charged. Since they are not just Courts of law, but justice too.
This article has been authored by Shaharyaar Shahardar, a second-year student at Gujarat National Law University. This blog is a part of RSRR’s Rolling Blog Series.