The law mandates the dignity of life as a fundamental right, meaning a life with dignity cannot be denied to anyone. However, a troubling phenomenon is spreading rapidly through society, particularly in Kashmir: the practice of declaring a person criminal at the very stage of arrest.
Recently, a doctor was accused of harassment, and many individuals immediately subjected him to abuse and condemnation. When his suspension order was subsequently set aside, no one spoke a word.
Social media is replete with clear photographs of individuals arrested under various offenses. Not only are their names available, but also their parentage and residence, making it difficult for their family members to live a normal life. Everyone perceives them as a family of criminals, even though they have never been part of any crime.
Recently, when a major drug network was claimed to have been unearthed, the Mohalla committee of the area to which the accused belonged held a press conference. As a law student, this was shocking to observe. If such precedence is allowed, it will become a hazard and shall be difficult to handle. Such committees have no legal standing to hold press conferences, particularly when the court has not pronounced the accused criminals.
It is striking to see photographs and full details of accused persons in the news. The problem is not the details of the accused but the question of whether newspapers will report acquittal the way they report arrest. The answer is no. In any offense, a person cannot be deemed criminal merely at the point of arrest. The criminal justice system maintains a balance, ensuring justice to both victim and accused.
A law that governs every accused person until pronounced guilty by the learned trial court is called the presumption of innocence, which means that the prosecution has to prove the accused guilty beyond reasonable doubt. Proving an accused guilty beyond reasonable doubt involves an enormous number of judicial steps and legally established proceedings.
Any person arrested in an offense cannot be termed a criminal before the trial concludes and the prosecution successfully proves the person guilty beyond reasonable doubt. For a common person who does not know the law, it is presumed that merely arresting a person makes him or her a criminal. However, when a person is arrested, it is no guarantee that when the trial reaches its end, he or she will be pronounced guilty or not. But a common person who has no knowledge of law does not know what judicial proceedings are.
There are criminal procedure codes, which are rules and regulations for a criminal trial, and there are criminal laws which define crimes. Then there is the Constitution, which defines the rights of an individual, and the same Constitution defines the rights of an accused and a criminal.
In many cases, counsel for the accused highlights violations of fundamental rights while arguing for bail, and when the court is satisfied by the arguments that the rights of the accused have been violated, it becomes grounds for bail and at times grounds for acquittal. Where the law mandates that a person should be arrested, there is also law that asks any agency to ensure that the person must be arrested as per the law laid down. The law ensures that when a person is arrested, rights are not violated. As previously mentioned, an accused cannot be treated as a criminal because the presumption of innocence makes it clear that a person is innocent until proven guilty beyond reasonable doubt.
The Public Safety Act, under which a person is put under preventive custody, is often quashed when the court finds violation of Article 21 and Article 22(5) of the Constitution of India. This means that fundamental rights are the core of the justice system and cannot be violated in any case.
The Supreme Court expanded the horizon of Article 21 in Maneka Gandhi v. Union of India (1978), holding that the right to life is not merely a physical right or restricted to animal existence but must include the right to live with human dignity. In any case, the right to dignity cannot be taken away. This right, being a fundamental right, has to be strictly taken into consideration while dealing with any case.
The criminal jurisprudence of law, which defines how the criminal justice system works, strictly maintains that the person who commits the crime shall be held responsible for the crime. The concept of collective punishment is nowhere in criminal jurisprudence. One cannot be punished for the crime of another person, nor can a person be punished twice for the same crime under the principle of double jeopardy, which says a person cannot be punished for the same crime twice.
Legislation is one source of law, and court judgments are also a source of law. Court judgments often override the laws formed through legislation. From time to time, laws are either scrapped or amended by Parliament or are struck down by the court. Laws are often understood through court judgments.
While the presumption of innocence is one of the governing laws that lays down regulations regarding how things shall function, in acts like the Narcotic Drugs and Psychotropic Substances (NDPS) Act and the Protection of Children from Sexual Offences (POCSO) Act, the presumption of innocence is modified by reverse onus clauses. This means that a person accused under the above-mentioned acts is deemed guilty of the offense unless proven otherwise, and the burden of proof does not fall on the prosecution but on the accused. However, even the presumption of guilt does not make an accused criminal until proven beyond reasonable doubt.
The Jammu and Kashmir and Ladakh High Court, while upholding the acquittal of three individuals accused under the NDPS Act, 1985, ruled that the presumptions under Sections 35 and 54 of the NDPS Act are rebuttable, not absolute.
The observations made by the High Court regarding Sections 35 and 54, in simple terms, mean that merely arresting a person under the NDPS Act does not make a person criminal; he has to be proven guilty beyond reasonable doubt in the same way as applies to other cases.
In Noor Aga v. State of Punjab (decided July 9, 2008), the Supreme Court of India set aside the conviction and sentence of the appellant, acquitting him of charges under the NDPS Act, 1985. The Supreme Court allowed the appeal and overturned the lower court rulings that had sentenced Noor Aga, an Afghan airline crew member, for allegedly carrying 1.4 kg of heroin.
The Court held that while the reverse burden of proof provisions under Sections 35 and 54 of the NDPS Act are constitutional, the prosecution must first prove foundational facts beyond a reasonable doubt before any presumption of guilt can shift to the accused.
The conviction failed because the prosecution committed severe procedural lapses, including failure to produce primary physical evidence such as the original cardboard carton and bulk contraband, destroying bulk quantities of the drug without complying with statutory mandates under Section 52A of the NDPS Act, and major contradictions in official witness testimonies, seizure times, sample weights, colors, and seal custody.
The Court also ruled that statements made by the accused to customs officers are barred by Section 25 of the Indian Evidence Act because customs officers exercise police-equivalent powers under Section 53 of the NDPS Act.
The same applies to the POCSO Act. Even though reverse onus clauses apply to POCSO in the way they apply to the NDPS Act, the courts have taken the same view as taken in regard to the NDPS Act.
The Supreme Court has emphasized that Section 29 does not operate automatically and that the prosecution must first establish basic, foundational facts of the crime and the victim's minority beyond a reasonable doubt at the threshold.
Once the prosecution establishes foundational facts, the burden shifts to the accused, who can rebut the presumption by a balance of probabilities, not needing to prove absolute innocence beyond a reasonable doubt, through independent evidence or by exposing severe contradictions, medical or forensic discrepancies, or false implication.
The Supreme Court has repeatedly held that the prosecution's version cannot be treated as gospel truth and that POCSO presumptions cannot override the constitutional guarantee of a fair trial under Article 21.
In Deepak in JC v. State Govt. of NCT Delhi, the Supreme Court ruled that POCSO presumptions require foundational facts and cannot replace proof beyond reasonable doubt, and set aside the conviction in that case.
This means that no one can be deemed a criminal merely because of being arrested, whether the arrest is in any case. The prosecution has to establish the case beyond reasonable doubt.
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*Law student and human rights activist
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