{"id":7814,"date":"2024-05-20T10:11:16","date_gmt":"2024-05-20T10:11:16","guid":{"rendered":"https:\/\/maklegal.in\/demo\/negotiating-with-constitutionality-retention-of-the-reverse-onus-clause-in-sec-35-of-the-ndps-act\/"},"modified":"2024-05-20T10:11:16","modified_gmt":"2024-05-20T10:11:16","slug":"negotiating-with-constitutionality-retention-of-the-reverse-onus-clause-in-sec-35-of-the-ndps-act","status":"publish","type":"post","link":"https:\/\/maklegal.in\/demo\/negotiating-with-constitutionality-retention-of-the-reverse-onus-clause-in-sec-35-of-the-ndps-act\/","title":{"rendered":"Negotiating with Constitutionality: Retention of the Reverse Onus Clause in Sec. 35 of the NDPS Act"},"content":{"rendered":"

Nixon in 1968: drug abuse is \u201cpublic enemy number one.\u201d \u201cIn order to fight and defeat this enemy,\u201d he continued, \u201cit is necessary to wage a new, all-out offensive.\u201d With that statement, the \u201cwar on drugs\u201d began.<\/em><\/p>\n

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\u2019m saying? We knew we couldn\u2019t 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.\u2026 Did we know we were lying about the drugs? Of course, we did.<\/em><\/p>\n

Introduction<\/strong><\/p>\n

The presumption of innocence is a sacrosanct principle in criminal law. The Apex court states<\/a> forms a part of \u201cdue process of law\u201d under Art. 21 of the Constitution<\/a>. Erosion of this presumption has been justified using counterweighing principles of \u201chigher<\/a>\u201d importance, such as public welfare.<\/p>\n

One such example of a \u201creverse onus clause\u201d is S. 35 of the NDPS Act<\/a> (\u201cAct\u201d). S. 35(1) states that for all offences under the act, a \u201cculpable mental state\u201d is to be presumed. It is further laid down that the \u201cfact\u201d that the accused had no<\/strong> culpable mental state has to be proven beyond reasonable doubt<\/em>. 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?<\/p>\n

Identifying the Rationale<\/strong><\/p>\n

The Apex court in Nikesh Tarachand Shah<\/a><\/em> 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 \u2018reverse burden\u2019.<\/p>\n

First, the \u201crisk\u201d to \u201cpublic welfare\u201d. Ashworth argues<\/a> that the state tends to weigh such offences against the \u201crisk\u201d the offenders cause by being a part of society. In this case, the offender\u2019s presence in society would likely result in an overall increase in drug use<\/a> and would therefore be damaging to public welfare. This is reflected in the reasoning used in High Court bail orders<\/a>.<\/p>\n

\n
\n
\n

Nixon in 1968: drug abuse is \u201cpublic enemy number one.\u201d \u201cIn order to fight and defeat this enemy,\u201d he continued, \u201cit is necessary to wage a new, all-out offensive.\u201d With that statement, the \u201cwar on drugs\u201d began.<\/em><\/p>\n

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\u2019m saying? We knew we couldn\u2019t 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.\u2026 Did we know we were lying about the drugs? Of course, we did.<\/em><\/p>\n

Introduction<\/strong><\/p>\n

The presumption of innocence is a sacrosanct principle in criminal law. The Apex court states<\/a> forms a part of \u201cdue process of law\u201d under Art. 21 of the Constitution<\/a>. Erosion of this presumption has been justified using counterweighing principles of \u201chigher<\/a>\u201d importance, such as public welfare.<\/p>\n

One such example of a \u201creverse onus clause\u201d is S. 35 of the NDPS Act<\/a> (\u201cAct\u201d). S. 35(1) states that for all offences under the act, a \u201cculpable mental state\u201d is to be presumed. It is further laid down that the \u201cfact\u201d that the accused had no<\/strong> culpable mental state has to be proven beyond reasonable doubt<\/em>. 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?<\/p>\n

Identifying the Rationale<\/strong><\/p>\n

The Apex court in Nikesh Tarachand Shah<\/a><\/em> 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 \u2018reverse burden\u2019.<\/p>\n

First, the \u201crisk\u201d to \u201cpublic welfare\u201d. Ashworth argues<\/a> that the state tends to weigh such offences against the \u201crisk\u201d the offenders cause by being a part of society. In this case, the offender\u2019s presence in society would likely result in an overall increase in drug use<\/a> and would therefore be damaging to public welfare. This is reflected in the reasoning used in High Court bail orders<\/a>.<\/p>\n

\n
\n
<\/div>\n<\/div>\n<\/div>\n

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

Third, the severity<\/a> of these criminal acts. Nixon led America (and consequently, the world) into the \u201cJust Say No<\/a><\/em>\u201d campaign against drugs, followed by an era<\/a> 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:<\/p>\n

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

Sitting on the Constitutional Fence<\/strong><\/p>\n

\u201cWhen two elephants fight, it is the grass that gets trampled.\u201d<\/a><\/em><\/p>\n

The reasoning adopted by the Court in Noor Aga is an act of \u2018Judicial negotiation\u2019 in \u201creverence\u201d to the legislative mandate. Many principles adopted by Noor Aga have since been refuted by the judicial<\/a><\/em>, empirical<\/a><\/em> or doctrinal<\/a><\/em> developments.<\/p>\n

First, Noor Aga relies on the principle that it is an \u201cestablished principle\u201d 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 <\/em>Sahara v SEBI<\/a><\/em>, it was conclusively held by the court that the presumption of innocence is a constitutional right protected under both <\/em>Article 14<\/a> and 21. The inclusion of Art 21 imposes an obligation of being \u2018<\/em>just, fair and reasonable<\/a><\/em>\u2019 upon the legislature.<\/em><\/p>\n<\/div>\n

<\/div>\n<\/div>\n<\/div>\n

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

Third, the severity<\/a> of these criminal acts. Nixon led America (and consequently, the world) into the \u201cJust Say No<\/a><\/em>\u201d campaign against drugs, followed by an era<\/a> 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:<\/p>\n

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

Sitting on the Constitutional Fence<\/strong><\/p>\n

\u201cWhen two elephants fight, it is the grass that gets trampled.\u201d<\/a><\/em><\/p>\n

The reasoning adopted by the Court in Noor Aga is an act of \u2018Judicial negotiation\u2019 in \u201creverence\u201d to the legislative mandate. Many principles adopted by Noor Aga have since been refuted by the judicial<\/a><\/em>, empirical<\/a><\/em> or doctrinal<\/a><\/em> developments.<\/p>\n

First, Noor Aga relies on the principle that it is an \u201cestablished principle\u201d 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 <\/em>Sahara v SEBI<\/a><\/em>, it was conclusively held by the court that the presumption of innocence is a constitutional right protected under both <\/em>Article 14<\/a> and 21. The inclusion of Art 21 imposes an obligation of being \u2018<\/em>just, fair and reasonable<\/a><\/em>\u2019 upon the legislature.<\/em><\/p>\n

 <\/p>\n

#ndpscaseslawyerindelhi<\/p>\n

#narcoticscaseslawyerindelhi<\/p>\n

#advocateindelhi<\/p>\n

#lawyerindelhi<\/p>\n

#bestadvocateindelhi<\/p>\n","protected":false},"excerpt":{"rendered":"

Nixon in 1968: drug abuse is \u201cpublic enemy number one.\u201d \u201cIn order to fight and defeat this enemy,\u201d he continued, \u201cit is necessary to wage a new, all-out offensive.\u201d With that statement, the \u201cwar on drugs\u201d began. John Ehrlichman, a top Nixon aide (1994): The Nixon campaign in 1968, and the Nixon White House after […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[16],"tags":[],"class_list":["post-7814","post","type-post","status-publish","format-standard","hentry","category-blog"],"_links":{"self":[{"href":"https:\/\/maklegal.in\/demo\/wp-json\/wp\/v2\/posts\/7814","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/maklegal.in\/demo\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/maklegal.in\/demo\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/maklegal.in\/demo\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/maklegal.in\/demo\/wp-json\/wp\/v2\/comments?post=7814"}],"version-history":[{"count":0,"href":"https:\/\/maklegal.in\/demo\/wp-json\/wp\/v2\/posts\/7814\/revisions"}],"wp:attachment":[{"href":"https:\/\/maklegal.in\/demo\/wp-json\/wp\/v2\/media?parent=7814"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/maklegal.in\/demo\/wp-json\/wp\/v2\/categories?post=7814"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/maklegal.in\/demo\/wp-json\/wp\/v2\/tags?post=7814"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}