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 DESIGNED FOR ABUSE:
SPECIAL CRIMINAL LAWS AND RIGHTS OF THE ACCUSED

KunalAmbasta*

The aim o this Articlis s to interrogate the necessit and efficay of special criminallaws

in the context of the Indian crimina/justice sstem. It further argues that special criminal

statutes have the inevitable effect of curtailing the rights of the accused in several crucial

respects extending pror, during, and after trial. Special statutes creating distinct legal

offences are sought to bejustified on the basis of the distinctness of the crimes that the

pertain to.

However, this Article agues that there exists little legal orpenological/usticationin not

treating those offences under the general criminal scheme. Finally, this Article

demonstrates thatproceduralinnovations applied under the guise of pecial statutes, result

in urther erosion of the rights of the accusedpersons, and the sstemic effects of such laws

work to the detriment ofthe criminaljusticesstem.

The Article examines the varousfeatures of special criminal laws in broadyfourparts.

PartI of this Article looks at the theoreticaljustificationof creating peciallaws. PartII

will examine the procedural innovations developed by special legislations. Part III

anayses the role o special legislations in engendering a sstem of informal plea

bargaining. PartI V sheds /ight on the direct impact that reverse onus c/auses in peca/

legislations have on the right ofthe accused.

* Assistant Professor (Ad Hoc), NLSIU, and Advocate, High Court of Karnataka. I am grateful to Maithreyi
Mulupuru for her valuable feedback. All errors are mine.
VOL. XIV NALSAR STUDENT LA W REVIEW 2020

CONTENTS

2
IN T R O D U CT ION ..............................................................................................

I. 4
MOUNTAINS OF MOLEHILLS: ARE SPECIAL OFFENCES REALLY THAT SPECIAL) .........................

II. THE DEVIL IN THE DETAIL: PROCEDURAL VIOLATIONS WRIT IN THE LAW ............................
8

III. DAMNED IF YOU DO, DAMNED IF YOU DON'T: AN INFORMAL PLEA BARGAINING SYSTEM....... 12

IV.R EVERSE B URD ENS O F G UILT ..............................................................

15

19
C O N C L U SIO N ......................................................................................

INTRODUCTION

In terms of criminal law, the Indian Penal Code, 1860 (hereinafter "IPC"), and the
Code of Criminal Procedure, 1973 (hereinafter "CrPC"), can be said to be the general laws,
which deal with the entire gamut of the legal implications of crime. By this, what is meant is
that substantively, the terms of various criminal offences are defined and their punishment is
laid out in the IPC. It also lays down the conditions for liability, such as general defences,
exceptions, and so on. Procedurally, the CrPC exists as the default and exhaustive procedure
by which the criminal justice system moves forward.

Why the CrPC may be considered to be general is easily understood from a look at its
provisions. The CrPC provides for what is to legally take place at all steps of the criminal
process, beginning from a complaint or a first information report to the stages of
investigation, inquiry, and trial. It further provides for appeals, the carrying out of sentences,
and so on. One could say that if the CrPC were to be looked at, parties to a criminal trial can
find provisions pertaining to their rights and duties at any stage of the criminal justice process.

The IPC and the CrPC are supplemented by the Indian Evidence Act, 1872
(hereinafter "IEA"), which pertains to the relevance of facts, admissibility of evidence, and
VOL. XIV NALSAR STUDENT LA W REVIEW 2020

means of proof. This Act also exists as a general statute, which applies to both civil as well as
criminal trials, and is framed in general terms as to the kind of offence under trial.

For the purposes of this Article, special criminal laws refer to those laws, which create
a distinct class of offences for certain acts.' These could be premised on a justification based
on a distinct victim group, such as child sexual abuse, or the motive of the crime, such as
terror. This Article has considered only those laws, which tweak the application of the
procedural aspects of the criminal justice system. These could be alterations to entitlements to
interim relief, such as bail,2 to changes in the operation of evidence law, such as the alteration
of standards of proof, and reverse onus clauses.

Over a period of time, the Indian legal system has adopted several criminal statutes
that may be termed as 'special criminal laws'. The laws typically define these offences and
proceed to stipulate certain ways in which they may be investigated and punished. They do
not replace the application of the IPC, which means that if the offences are additionally made
out under the IPC as well as the special statute, both would be attracted. However, they do
replace certain parts of the CrPC and the IEA. This is done usually through the application of
non-obstante clauses within the special statute. With respect to the stages of procedure on
which the special law is silent, the general procedural law still applies. Therefore, these special
laws complement and attach to general statutes, creating a situation, where the rights of the
accused are dealt with under the special laws, and the stringency of substantial provisions is
either left unchanged or heightened as a permanent system.4

There are far too many special criminal statutes in the Indian legal system to all be studied in a
single Article. The present Article looks primarily at anti-terrorism laws such as the Unlawful
Activities (Prevention) Act, 1967 (hereinafter "UAPA") 5, and the Protection of Children from

1 1 write of the generality and special law distinction in terms of the application of principles of criminal law
through statutes. For philosophical distinctions on generality see Peter Cane, The General/Special Distinction in
Crminal Law, Toa Law and Legal Theoy, 26(5) LAW AND PHILOSOPHY 4 65 (2007).
2 The practice of limiting or extinguishing the ight to bail is common in special criminal statutes. See Vikramjit
Reen, Proofof Innocence before Bail: Amendments Required, 37(2) JILL, 256 (1995).
3 Certain statutes such as the NIA Act, 2008, create an entirely separate investigative agency for the offences
under special statutes, such as the Unlawful Activities Prevention Act, 1967.
' Ujjwal Kumar Singh, State and Emergig Interocking Legal Systems. 'Permanence of the Temporag, 39(2) ECON. & POL.

W xLY. 149 (2004).

5 The Unlawful Activities Prevention Act, 1967, No. 37, Acts of Parliament, 1967.
VOL. XIV NALSAR STUDENT LA W REVIEW 2020

Sexual Offences Act, 2012 (hereinafter "POCSO Act").6 Part I of this Article traces the
theoretical justification of creating special laws. Part II will examine the procedural
innovatons developed by special legislatlons. Part III analyses the role of special legislations in
engendering a system of informal plea bargaining. Part IV sheds light on the direct impact that
reverse onus clauses in special legislations have on the right of the accused.

I. MOUNTAINS OF MOLEHILLS: ARE SPECIAL OFFENCES REALLY THAT SPECIAL?

The generality of laws is a recognised feature of a system that purports to have the rule
of law. Jurists such as Professor Lon Fuller have famously defended the need for laws to be
general in terms of their enactment and enforcement as necessary elements of an "inner
moraliy" to the law.8 Generality is considered to be important because it ensures applicability
throughout the system and to all accused, and not just a special class of offences. Fuller also
insisted on congruence between the law as designed and its actual implementation, to ensure
fairness.

To take the Modern Natural Law theory perspective, generality is one of the features
that ensures basic fairness in the legal system as a whole and curtails the power of the
government to bring about 'evil' results, or abuse, through the law. It is believed that if the
general procedural law relating to offences and their punishment is complied with, a basic
amount of fairness is guaranteed.9 However, the same basic principles of criminal law can be
side-stepped, if classes of special criminal laws are created to apply only in specific situations
and where the general procedural requirements of the law are held to be inapplicable.
However, this does not mean, that the generality of laws ensures fairness in all cases. Indeed, it
can be validly argued that general laws can also be misused. Hart famously argued that
principles such as generality, which may ensure a logical coherence to the law, might also be
amenable to the accomplishment of 'evil' aims. 10 However, the argument here is that the lack
of generality allows for special laws to derogate from well-founded procedural safeguards as a

6The Protection of Children from Sexual Offences Act, 2012, No. 32, Acts of Parliament, 2012.
7Lord Bingham, The Rule of Law, 66(1) CAMBRIDGE L.J., 67 (2007).
8 Brian H. Bix, Natural Law: The Modern Tradition in THE OXFORD HANDBOOK OF JURISPRUDENCE AND
PHILOSOPHY OF LAW 61 (Oxford, OUP, 2002).
9Lon L. Fuller, Positiusm andFideliy to Law: A Repl to ProfessorHart, 71(4) HARV. L. REV. 637 (1958).
10 H.L.A. Hart, Positimsm andtheSeparationofLaw andMoral, 71(4) HARv. L. REv. 593 (1958).
VOL. XIV NALSAR STUDENT LA W REVIEW 2020

stated aim. Statutes that extinguish the right to bail for under-trial prisoners need not be
misused to achieve the aim of prolonged incarceration sans guilt. But they can lead to arbitrary

detentions as a valid and wholly legal result of following the law. Similarly, the stated policy

objective of ensuring a high conviction rate manifests itself in mechanisms such as reverse
onus clauses, without any consideration of the fairness of such results.

In terms of the psychological justification of these laws, the first argument often used
to defend these laws is to view the class of offences they deal with to be special. This is the
justification that is taken most often in the case of anti-terror laws. The understanding is that
for terrorism as a class of criminal offences to be dealt with, requires special laws, and the
general criminal law is incapable and inadequate to do the same." This line of thinking
proceeds from the transnational character of certain terror groups, to the distinct challenge
they present to national security.'2 What is notable is the logic of national security and
sovereignty being invoked to justify the enactment of anti-terror legislations, where terror
offences are often singled out to be the greatest challenge facing the country. However, in
terms of criminal law, this distinction between terror offences and general criminal offences is
not clear. A terror offence would be an offence that is fully within the scope of a general
criminal offence in terms of the requirements of liability. One can even go a step further and
state that a terror offence is fully covered by the IPC in the Indian context, in terms of waging
war against the state, a conspiracy to wage war against the state, or in cases where the loss of
life occurs, murder. 3 Indeed, it is very common that in a terror charge, these provisions of the
IPC will be mentioned against the accused, along with the special laws. What is theoretically
distinct for a case of terror from an IPC offence remains unclear. Factors such as the threat
level that an act presents to the safety of the country are not very relevant for criminal law
distinctions.

Similarly, if the offence of child sexual abuse is considered, the nature of the crime
remains the same in terms of the aspects of criminal law and is covered under the IPC. The

11Infra, notes 20, 21. See also N. Manoharan, Trojan Horses: Counter-terrorLaws and Secuzy in India, 44(46), ECON. &
POL. WKLY., 20 (2009).
12 Sudha Pai, TADA and Indian Democray, 30(50) ECON & POL. WKLY. 3203-3205 (1995). See Anil Kalhan et al.,

Colonial Continuities: Human Rights, Terrorsm, and Secuny Laws in India, 20(1) COLUM. J. ASIAN L 93 (2006); see also
MANISHA SETHI, KAFKALAND: PREJUDICE, LAW AND COUNTERTERRORISM IN INDIA 3-8 (Gurgaon; Three
Essays Collective, 2014).
13 These offences are fully defined in the Indian Penal Code, 1860, and are punishable by the maximum sentence

of death or imprisonment for life.

VOL. XIV NALSAR STUDENT LA W REVIEW 2020

challenges that the collection of evidence from the minor may present are fully capable of
being handled by suitable changes to the Criminal Rules of Practice that courts are mandated
to follow. However, the creation of a special law dealing with sexual offences against children
was considered by many to be a unique necessity that could not be addressed adequately by
prevalent legislation. In terms of several procedural aspects as well as the method of trial, the
law makes certain changes to the ordinary nature of criminal law. In terms of already being
covered by the scope of criminal law, the IPC does provide for offences of a sexual nature
against children. However, certain modifications, such as recognising non-penetrative sexual
abuse of children of any gender were needed.' 4 However, in terms of criminal law
requirements at a theoretical level, the same general principles were to be applied.

It is interesting to note the legislative history of the enactment of the Protection of

Children from Sexual Offences Act, 2012. All constituencies involved in the matter, starting
from the Parliamentary Standing Committee, to the actual debate in the Rajya Sabha, seem to
have fully accepted the need for a special law without looking at the reasons as to why the
same could not be achieved through amendments to the existent law to incorporate newer
offences. Reasons seem to range from low rates of conviction, high incidence of crime against
children, to the cumbersome process involved in amending the IPC. 15 What becomes clear
from the Standing Committee Report is that scant regard is paid to the penological
justification for creating new legislation, but that focus is only directed towards the ostensible
policy justification for it. This is also true for the debate that occurred in the Rajya Sabha on
the Bill, where the necessity of this law was taken as accepted.1" This view of the criminal law
may subscribe closely to what has been called the view of law as an external constraint.' Here,
the promise of greater efficiency of a new law and the certainty of having a law specifically to
deal with sexual offences against children are seen as paramount goals of society. Taken in this

sexual assault of males would be covered under § 377, IND. PEN. CODE.
14 Penetrative
15 DEP'T-RELATED PARLIAMENTARY STANDING COMM. ON HUMAN RES. DEV., Two HUNDRED AND FORTIETH
REPORT 21st December, 2011,
https: //prsindia.org/ sites /default/ files /bill files /SCR Protection of Children-fromSexualOffences Bill 20
11.pdf (last visited May 17, 2020).
16 Debate in the Rajya Sabha, 10l May, 2012,
3 61
https://rsdebate.nic.in/bitstream/123456789/603084/1/ID 225 10052012 p _p391 _29.pdf (last visited
May 17, 2020).
17 David L. Bazelon, Foreword- The Moraiy of the Crminal -Law. Rights of the Accused, 72(4) J. CRIM. L. &
CRIMINOLOGY 1143 (1981).
VOL. XIV NALSAR STUDENT LA W REVIEW 2020

view, having a special law is always considered better than not having one. The efficacy of
more laws over fewer is presumed.

A similar story emerges when one looks at the enactment of the Prevention of
Terrorism Act, 2002 (hereinafter "POTA"). 18 The 1 7 3rd Report of the Law Commission of
India contained a draft Prevention of Terrorism Bill for consideration. 9 The Law Commission
foresaw the possibility of the legislation being tabled in a subsequent session of the
Parliament. An interesting development prior to the Bill being introduced in the Parliament
was the unanimous opinion expressed on the matter by the National Human Rights
Commission (hereinafter "NHRC"). Invoking its jurisdiction under Section 12 of the
Protection of Human Rights Act, 1993, the NHRC expressed its unanimous opinion that a
special legislation on the subject of terror was not required, and the general criminal laws, with
amendments if needed and better investigation and enforcement, would be sufficient to deal
with the problem of terrorism. In a detailed opinion, the NHRC was of the view that the then
existent set of criminal laws covered terror offences. They opined that the proposed
provisions in the special anti-terror law were against the settled principles of criminal law and
eroded the constitutionally guaranteed rights.2 0 The Prevention of Terrorism Bill was passed
by the Lok Sabha and rejected by the Rajya Sabha, leading to a joint session of the Parliament
being convened for its discussion on the 26 March 2002.

In a day-long and extensive debate, several factors dealing with the desirability of a
special anti-terror law were discussed. The usual aspects of the debate centered on the need of
raising conviction rates in terror cases and on the nature of state sponsored terror against
India. Arguments highlighting the potential of the law's misuse were also made. The opinion
expressed by the NHRC was raised by members of the opposition parties. What is instructive
is that there was no reply on the subject matter of the NHRC's objection to the Bill. Once
again, it appears that the efficacy of the new law was presumed by the central government, and
the foundational question of why general criminal laws are insufficient was never addressed.

18 The Prevention of Terrorism Act, 2002, No. 15, Acts of Parliament, 2002 (repealed).
h
19 LAw COMMISSION OF INDIA, ONE HUNDRED AND SEVENTY THIRD REPORT, 131 April 2000. For comments
on the Report and recommendations of the LCI see K. Balagopal, Law Commission's View on Terrorzsm, 35(25)
ECON. & POL. WKLY. 2114 (2000).
20 NATIONAL HUMAN RIGHTS COMMISSION, PREVENTION OF TERRORISM BILL, 2000: NHRC'S OPINION,
https://nhrc.nic.in/press-release/prevention-terrorism-bill-2000-nhrc's-opinion (last visited May 17, 2020).
VOL. XIV NALSAR STUDENT LA W REVIEW 2020

In the case of the POTA, it is especially instructive since the contrary point had been made
and highlighted but was still not considered. 2'

FI. THE DEVIL IN THE DETAIL: PROCEDURAL VIOLATIONS WRIT IN THE LAW

The aspects of special legislation that will be looked into, in this part, deal with the
procedural changes these laws introduce into the law, which would have otherwise applied.
These procedural aspects apply to both interim reliefs that the accused would be otherwise
entitled to, such as bail, to changes that have a bearing on the adjudication of the cases itself,
such as the operation of certain kinds of reverse onus clauses, or the admissibility of
confessional statements made to the police.

The present anti-terror law in the country is preceded by the now non-applicable,
Terrorism and Disruptive Activities (Prevention) Act, 1989 (hereinafter "TADA Act"), and
POTA, both of which, allowed confessions to be made to police officers admissible in
evidence. This is a deviation from the provisions of the IEA, which make any confession
made by an accused person to a police officer or in police custody, inadmissible in evidence. 3

The protection offered by the IEA extends to the extent that the accused person does not
have to prove duress or torture during confessing to a police officer in order to make it
inadmissible. It extends as a blanket provision covering all such confessions.24 The purpose of
the provision is to ensure that the police are not incentivised in any manner to induce or
threaten the accused to confess, especially in the context of recording false and fabricated
confessions. Confessions under the CrPC may be recorded only under Section 164 by a
Judicial Magistrate and of an accused in judicial custody, and only after compliance of the
25
requirements laid down in the provision.

21 Debate in the Joint Session of Parliament, 261h March, 2002,

http://loksabhaph.nic.in/Debates/Resultl3.aspx?dbsl=3795 (last visited May 17, 2020).
22
Trials continue under the Terrorism and Disruptive Activities (Prevention) Act and POTA across courts where
the allegations pertain to the times during which these laws were in force.
23 §§ 25-26, Indian Evidence Act, 1872; These sections protect a person even when he is not formally accused at
the time of the making of a confession, and are, in that sense, broader than the right against self-incrimination
under Article 20(3) of the Constitution. See Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119.
24 §§ 25-26, IEA do not require the accused to prove any extraneous factor leading to the making of the
confession.
25 § 164, CRIM PROC. CODE; The provision requires, inter aia, that the confession of an accused only be recorded
when he has been warned by the Judicial Magistrate of the consequences of making such a confession, and the
VOL. XIV NALSAR STUDENT LA 117REVIEW 2020
202

However, the provisions of anti-terror laws such as the POTA and the TADA Act
allowed for confessions to be made to police officers under police custody to be proved.26
This was achieved by making the relevant provisions of the IEA inapplicable to cases under
these laws.2 As a substitute, certain safeguards were added in the law, such as the requirement
of the confession to be recorded before a particular rank of police officer and certain post
confessional measures to ensure that the confession was voluntarily made. 8 These provisions
undercut and deviated from some of the most fundamental aspects of criminal law, such as
the right against self-incrimination. It would be very difficult for any person, who was in the
custody of the police and whose safety and security depended on the police itself, to ever
prove that he was tortured by the police and compelled to make a confession. Barring clear
medical evidence, there would be little that he would have in his favour to ever show the
same.

The TADA Act was challenged on, inter aia, a violation of Article 20(3) in the
Supreme Court. In its decision upholding the constitutionality of the provisions of the TADA
Act in Kartar Singh v. State of Punjab (hereinafter "Kartar Singh"),29 the Court completely bought
into the argument of the necessity of such special laws to deal with the scourge of terrorism
and the protection of national security. It is interesting to note how much this dichotomy
affects the minds of the judges, who adjudicated this case, with them noting but yet
disregarding instances of custodial brutality and torture of the accused. 0 What predicates the
judicial decision-making in the case is the fact that the legislation in question deals with terror
offences, which threaten the security of the nation. Therefore, terror offences stand on a
different footing from regular criminal offences.

This 'exceptionalism' in the nature of the offence, which as Part I showed, is not very
different from regular criminal offences and justifies in the eyes of the Court a looser
application of the rights in the Constitution. Therefore, even while recognising the fact that

Magistrate as satisfied himself by such questioning, that the confession is being made voluntarily. It further
requires that the Magistrate only record the confession of an accused who has not been produced from police
custody but only from judicial custody.
26 3 15, TADA, 1987; 332, POTA, 2002.
27 Id.
28 Id.
29 Kartar Singh v. State of Punjab, (1994) 3 SCC 569. See also Shylashri Shankar, Judidal Restraint in an Era of
Terrorism: Pevention of Terrorsm Cases and Minorties in India, 11(1) Soc. L. R-v. 103 (2015).
30 Id.
VOL. XIV NALSAR STUDENT LA W REVIEW 2020

the law has full potential for misuse, which would directly affect the fundamental rights of
persons, the Court does not strike down the law. It instead provides additional safeguards to
the application of the law.3 '

The constitutional challenge to the POTA was decided by the Supreme Court in
PUCL v. Union of India (hereinafter "PUCL") 2 The Court accepted the Union of India's
argument that terrorism was a problem that was distinct from ordinary crimes and law and
order problems. Thereby, the central government had the competence to legislate upon the
subject, which would have otherwise been within the purview of the states by virtue of falling
under the first entry to List II of the Seventh Schedule.3 3 The logic of the Court is circular
and completely accepts the argument that since terrorism is a special offence, it cannot be
dealt with, by ordinary criminal laws, and therefore, requires special laws such as the POTA.
There is no critical discussion of the penological difference between terrorism and ordinary
crimes, or why general criminal laws cannot deal with the problem. As regards the
admissibility of confessions made to police officers, Section 32 of the POTA was considered
to be an improvement upon the corresponding Section 15 of the TADA Act, insofar as it
mandated a subsequent production before a Magistrate. Therefore, following KartarSingh, and
with meagre analysis on why such a provision should exist at all, the Court upheld it.

In both KartarSingh as well as the PUCL judgment, what comes forth is the reluctance
of the Supreme Court to apply any standard of constitutional scrutiny to the impugned
provisions of the statutes under challenge. 4 The cursory justification of the provisions made
by the central government was mostly premised on the special nature of terrorism and the
need to effectively curtail fundamental rights. In both these cases, we see the Court wholly
accepting this logic of necessity and assurance of non-abuse by the State. It is possible that the
Court would have upheld these egregious provisions of law only if it had internalised the very
logic that justifies these laws. The logic that justified the unique necessity of such laws is that
such laws deal with offences distinct from those under general criminal laws and that they,

31 Id.
32 Peoples' Union for Civil Liberties v. Union of India, AIR 2004 SC 456.
33 List II, Schedule VII, IND. CONST., ("Public order (but not including the use of any naval, military or air force
or any other armed force of the Union or of any other force subject to the control of the Union or of any
contingent or unit thereof in aid of the civil power)").
34 K. Balagopal, In Deence of India- Supreme Court and Terrorism, 29(32) ECON. & POL. WKLY. 2054 (1994).
VOL. XIV NALSAR STUDENT LA W REVIEW 2020

therefore, need not be made to satisfy the safeguards that other laws have to. Any honest
scrutiny of special laws on constitutional principles would have led to different results.35

The abuse of the provisions allowing confessional statements to police officers to be

proved during the trial has been well documented.3 6 It became routine practice in terror cases
to have extra-judicial confessions recorded from the accused and proved in court using these
provisions. Upon trial, the accused would attempt to retract the confession relying on the
argument that the same had not been made voluntarily. However, the accused would be
required to show that the confession had been extracted involuntarily and not merely that he
is retracting it as an afterthought. A retracted confession can otherwise be relied on by the
Court to convict an accused, provided the Court is of the opinion that the confession was
voluntarily made at the time it was recorded and upon corroboration. 3' Therefore, the effects
that an extra-judicial confession can have on the rights of the accused may go to the ultimate
conclusion and adjudication of the trial itself.

The result of the provisions allowing police recorded confessions to become

admissible is to place the accused effectively at the mercy of the police. This is exacerbated by
the fact that pre-charge sheet custody under such laws is extendable to one hundred and
eighty days, as compared to ninety days for the most serious IPC offences. If one believes that
the right against self-incrimination is a fundamental principle of criminal law and that no
accused may be denied it, the provisions as well as the application of these erstwhile terror
laws is clearly problematic. However, because these laws were portrayed as specific and
justified on the basis of policy, they withstood constitutional challenges, which perhaps a
general amendment to the IEA could not have. In the process, they also dispensed with some
vital safeguards for the accused persons. As previously discussed, there exists no theoretical
justification to not treat terror offences under the general substantive criminal law. The only
real goal that is therefore achieved by the use of these special terror laws, seems to be a

35 The Supreme Court upheld the validity of 349 of the POTA in PUCL, supra, note 31; A similar provision in
the Prevention of Money Laundering Act, 2006, namely 345, was struck down as being manifestly arbitrary in
Nikesh Tarachand Shah v. Union of India, AIR 2017 SC 5500; Comparison between the Supreme Court's lack of
scrutiny of provisions in anti-terror legislation and general Fundamental Rights adjudication has highlighted this
inconsistency on the part of the Court see Mrinal Satish & Aparna Chandra, Of Maternal State and Minimalist
Judiaagy:The Indian Supreme Court'sApproach to Terror-relatedAdjudication, 21(1) NLSIR 51 (2009).
36 Black Law and White Lies- A Report on TADA 1985-1995, 30(18-19), ECON. & POL. WKLY. 977 (1995).
37 Subramania Gounden v. State of Madras, AIR 1958 SC 66.
VOL. XIV NALSAR STUDENT LA W REVIEW 2020

successful circumvention of the procedural safeguards and the fundamental rights of the
accused.

Mll. DAMNED IF YOU DO, DAMNED IF YOU DON'T: AN INFORMAL PLEA BARGAINING

SYSTEM

Anti-terror legislation is notorious for the extinguishment of the right to bail of the
accused pending investigation or trial. These legislations usually place restrictions on the
powers of the Court to grant bail, which has added to the great taboo surrounding allegations
of this nature in the first place. Often, mere allegations of indulging in terrorist activities are
sufficient for Courts to deny bail, which results in long periods of incarceration pending trial,
sometimes extending to many years.38 There have been numerous cases, where the accused
have finally been acquitted of the terror charges against them, but after having served more
than ten years in prison as under-trials, merely because the right to bail was restricted. Further,
Courts are generally averse to granting bail in such offences, to begin with.39 To reiterate the
point, this is a direct result of considering these offences to be special and not general, and on
a connected note, of making the provisions of general laws such as the CrPC inapplicable to
them. This results in a gross miscarriage of justice and the violation of the rights of the
accused.

The denial of bail to under-trials for long periods of custody is a direct violation of the
right to life and liberty. It has also helped create a unique method of further exploitation of
these under-trials. This is the system of informal plea bargaining or a change of plea during
the trial. This system has been informally referred to in Hindi as "Katti". Variations of this
practice are now found across the country, in terror trials. An accused or a group of accused
in a terror trial, who have typically undergone several years of custody as the proceedings drag
on, will usually make an application before the Court under Section 265A of the CrPC, which
pertains to plea bargaining. Since the provisions of plea bargaining under the CrPC only

38
JAMIA TEACHERS' SOLIDARITY ASSOCIATION, FRAMED, DAMNED, ACQUITTED: DOSSIERS OF A VERY SPECIAL
CELL, (New Delhi; Pharos, 2011); Indulekha Aravind, Wrong arm of the law: 12years injaiijor terror crimes not
committed, THE ECONOMIC TIMES, 27th August, 2017, https://economictimes.indiatimes.com/news/politics-and-
nation/wrong- arm-o f-the-law- 12-years -in-jail- for-terror-crimes -not-
committed/ articleshow/ 60237787.cms?from=mdr (last visited May 17, 2020).
39§ 43D(5), UAPA, supra note 5.
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extend to offences, which are punishable with a maximum of seven years of imprisonment,
and most terror offences are punishable with much higher sentences, this application would
inevitably be rejected. Thereafter, the accused usually changes his plea from 'not guilty'
claimed at the start of the trial to one of 'guilty'. In many cases, this leads to the trial being
concluded at this stage, and the punishment is typically awarded as being the time already
served as an under-trial, or a reduced sentence, which can range to several years.40

In recent years, there have been several cases that have reached verdicts through the
method described above, and it remains an understudied and underreported phenomenon.
Even when it does get coverage, the narrative does not count for the actual machinations that
have been employed to achieve the result.4' It is possible that such a change of plea during
trial is only made when facilitated by the prosecution agency on the promise that it would not
seek a greater sentence for the accused than what they have already undergone. A rationally-
thinking accused person would choose to plead guilty when they see the prospect of being
confined in prison for the foreseeable future while the trial drags on for years and the
remotest possibility of a sentence of life imprisonment at the end of it. This practice also
allows the investigative agencies to secure a conviction regardless of the quality of evidence in
the given case.

Some inferences can be drawn from the practice of changing pleas in terror trials. At
least one causative factor is the lack of bail that is granted to the accused during proceedings.
An average trial from the stage of arrest to judgment may take several years and can be
delayed easily by the tardiness of the prosecution in bringing forth its witnesses to Court. An
accused typically spends many years in custody waiting for the trial to conclude, and agrees to
the prospect of conviction with release as a better one than contesting the matter for several
more years while being incarcerated. If an accused were to be granted bail, it is unlikely that
such an incentive to plead guilty would exist.

40 Court sends ISIS men to jail for seven years in terror case, THE ECONOMIC TIMES, 13th July, 2018,
https://economictimes.indiatimes.com/news/defence/court-sends-isis-men-to-jail- for-7-years-in-terror-
case/ articleshow/ 58295971.cms?from=mdr. (last visited May 17, 2020).
4Four accused in Chinnasway blast case to cojess, THE HINDU, 4th July, 2018,
https: //www.thehindu.com/ news /national/kamataka/ four-accused-in-chinnaswamy-stadium-blast-case-to-
confess/article24325262.ece. (last visited May 17, 2020).
VOL. XIV NALSAR STUDENT LA W REVIEW 2020

Furthermore, under the CrPC, a change of plea does not necessarily mean that the
Court may, in all cases, conclude the trial. The Court has to satisfy itself as to the clarity and
specificity of the plea of guilt and has the discretion to insist on the completion of the
recording of evidence and reach a verdict on the merits of the same.42 However, it appears
that both the prosecution and the defence reach some semblance of an agreement and
certainty as to the likely outcome of this change of plea, and act accordingly. It would be
irrational for an accused to take the risk of changing their plea to that of guilty unless they
have been assured that they will not suffer additional imprisonment, which in most cases will
be a life term, because of it. They would also need to have been assured that the trial would be
concluded with their plea of guilt and not drag on with their plea also recorded. This raises
questions as to what kind of arrangement is entered into informally between the parties prior
to the change of plea.

The practice of change of plea midway during a terror trial is the cumulative effect of
the unfairness of the procedure that is built into terror statutes. By denying bail to under-trials,
these laws subvert an essential safeguard of the criminal justice system, which is to not punish
unless a person has been proved guilty. Long incarcerations during trial effectively ensure that
these accused persons are punished without convictions. Needless to say, the law gives
statutory force to this mechanism and pushes an accused to bargain his right to a fair and full
trial with that of a speedy conviction. At the level of the trial courts, where this practice
occurs, this translates to a denial of rights.

Ironically, one of the arguments used to justify the creation of special courts by special
criminal laws has always been the need to conduct a speedy adjudication of guilt or innocence.
This has been routinely invoked and accepted by the Supreme Court in constitutional
challenges to these laws, such as in KartarSiigh. However, the narrative that emerges from this
practice of informal plea bargaining is starkly different. It appears that not only are terror trials
delayed to periods of several years but also that this delay, coupled with the lack of interim
relief to the accused, leads to the success of the prosecution case in these cases. The
machinations of these laws in trial courts are leading to a perhaps not foreseen but absolutely
preventable destruction of the rights of the accused in such cases. This is over and above the

42 § 229, 241, 252, 254, CRIM. PROC. CODE; see State of Maharashtra v. Sukhdeo Singh, AIR 1992 SC 2100.
VOL. XIV NALSAR STUDENT LA W REVIEW 2020

extinguishment of the right to bail, which in itself is a violation of the fundamental rights. This
phenomenon needs to be studied in greater detail, perhaps empirically, which is outside the
scope of the present Article.

IV REVERSE BURDENS OF GUILT

The last of the special features that shall be discussed in this Article, which have a
direct bearing on the rights of the accused, is the use of reverse onus clauses. The general
principle of criminal law is that an accused is presumed innocent until proven guilty." This
principle is universally recognised and incorporates within it the idea that the prosecution
bears the burden of proof in a criminal trial to the standard of 'beyond reasonable doubt'. The
development of this doctrine has been historical and is not discussed in this Article.

Reverse onus clauses, in the context of criminal law, are provisions of law, which, for
certain specific facts, reverse the burden of proof onto the accused. Some examples may be
taken from the IEA as well, which allows for certain facts to be proved by the accused. If the
prosecution proves that a particular fact is specially within the knowledge of the accused, then
the accused is under a burden to explain those facts, which he has special knowledge of.44
Such a reverse onus clause requires the prosecution to first prove that a certain fact lies within
the special knowledge of the accused and only then is the accused required to explain them.
Therefore, there exists an initial burden on the prosecution to make the reverse onus clause
applicable. It follows, therefore, that even when reverse onus clauses generally apply, they do
not take away the entire burden from the prosecution and place it on the accused.

However, certain special legislations have made extensive use of reverse onus clauses
to, in fact, reverse the entire burden of proof onto the accused and relieving the prosecution
of any duty whatsoever. These provisions allow the Court to presume the guilt of the accused
itself, imposing the burden on the accused to disprove guilt or prove innocence. Another
novel application of the reverse onus clause is its use to reverse the burden of proof of 'facts
45
in issue'.

43
Andrew Ashworth, Four Threats to the Presumption of Innocence, 10, INT'L. J. EVIDENCE & PROOF, 241 (2006).
44 3
106, lEA.
45The term 'facts in issue' is used here as it is defined in 3 3 of the lEA, 1872.
VOL. XIV NALSAR STUDENT LA W REVIEW 2020

Seemingly benign legislation such as the POCSO Act incorporates such a provision in

the statute. Section 29 of the law allows for the guilt of the accused to be presumed for certain

offences if the accused is prosecuted for the same. This provision is in the teeth of all tenets

of civilised criminal jurisprudence and the rights of the accused.46 It merely requires that the
accused be prosecuted for an offence, and his guilt would be presumed for the same. To
deprive any accused of the rights of liberty following such a procedure would be unfair and
would not amount to due process, which is concomitant of the guarantee under Article 21 of
the Constitution of India.4

The Calcutta High Court has interpreted the provision to mean that the prosecution
must establish the ingredients of the offence to a 'preponderance of probabilities' standard, as
opposed to 'beyond reasonable doubt'. Part of the reasoning of the Court seems to be that
absolving the prosecution from all burden would render the provision "constitutionally suspecf'.48
One can, therefore say, that the provision, as it stands today, does cast some burden on the
prosecution. However, the question of the standard of proof must also be confronted here.
Unlike the provisions in the IEA, the reverse onus clause here attaches to the question of the
commission of the offence itself, which is the ultimate fact in issue in a trial. It is a settled
position of law that the burden on the prosecution to establish guilt in a criminal trial can
never shift to the accused, and that burden must be satisfied to the standard of beyond
reasonable doubt to sustain a conviction.4 Even considering the Calcutta High Court's

interpretation of the provision, the provision lowers the burden of proof on the prosecution
in an unacceptable manner in two ways, namely, by allowing a reverse onus clause on the
question of commission and by lowering the standard of proof on the question of guilt.

Prior to the POCSO Act, another special criminal legislation, which allowed for the
drawing of presumptions as to facts in issue during trial, was the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter "NDPS Act"). Specifically, Sections 35 and 54
of the Act allow for the Court to presume a culpable mental state of the accused and also to
presume the commission of an offence under the Act, where possession has been proved

46 DEP'T-RELATED PARLIAMENTARY STANDING COMM. ON HUMAN RES. DEv., supra note 15, considers this
provision to be similar to provisions in the IEA such as S.113A. As has been discussed, the presumptions under
the IEA do not stand on the same footing, as they do not remove the entire prosecutorial burden in a case.
47 Maneka Gandhi v. Union of India, AIR 1978 SC 597.
48 Subrata Biswas v. State, 2019 SCC Online Cal 1815.
49 Dahyabhai Chhaganbhai Thakker v. State of Gujarat, AIR 1964 SC 1563.
VOL. XIV NALSAR STUDENT LA W REVIEW 2020

respectively. The constitutionality of these reverse onus clauses was challenged in the case of
Noor Aga v. State of Punjab (hereinafter "Noor Aga").O The Supreme Court upheld the
constitutionality of these Sections while altering the standards of proof required to prove
foundational facts to trigger the presumption. Therefore, the fact of physical possession would
have to be proved by the prosecution beyond reasonable doubt, whereas the accused need not
disprove it to such a standard. However, the burden on the defence was also held to be a
persuasive one, and therefore, one may conclude that the presumed fact would have to be
disputed to a preponderance standard.

NoorAga's case is instructive to us on the kind of analysis that the Court entered into
on the question of the constitutionality of reverse onus clauses. In essence, the Court's
evaluation is based on proportionality, with it trying to balance the rights of the accused with
the aim of the special legislation. Though fully accepting the status of the presumption of
innocence as a human right and fairness as a cardinal virtue of the criminal process, the Court
did conclude that such rights were subject to statutory exceptions. It has to be observed here
that this trend of balancing the rights of an accused vis-O-vis the interests of the society as
statutorily formulated, is often, if not always, tilted towards the curtailment of the accused's
rights. This is so because this analysis is an acceptance of the argument that actuates special
criminal legislation, namely that distinct social or national interests require their enactment and
mandate their special provisions. The result is that to constitutional courts, these restrictions
or curtailments of rights by legislation seem proportionate and reasonable, and are
consequently upheld.

However, the NDPS Act would still stand on a different footing from the POCSO
Act as regards the application of reverse onus clauses. This is because the presumptions under
the former legislation would still require a foundational fact to be proved prior to the
triggering of the presumption. Further, after Noor Aga, the standard of proof for the
foundational fact is also the highest. No such safeguards exist under Section 29 of the
POCSO Act, as has been explained earlier. Special legislations other than the POCSO Act also
make use of reverse onus clauses although none of them as extensively and widely as the
former legislation.

50 Noor Aga v. State of Punjab, (2008) 9 SCALE 681.

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Section 43E of the UAPA allows the Court to presume the commission of an offence
by the accused, if his fingerprints are found at the scene of the crime or on articles associated
with the crime, or if similar arms or explosives that were used in an offence are recovered
from the accused. Under ordinary criminal law, fingerprints of an accused at the scene of the
crime would be a relevant fact that would indicate the presence of the accused at the spot. It
would, however, be open to multiple interpretations. Mere presence at the scene of the crime
does not by itself, following any rule of logic, prove the commission of the offence.

However, the UAPA allows for this leap of logic to take place under the guise of
national security. Further, Section 43E(a) incentivises the investigation agency to ensure that
recoveries and seizures of the explosives are made from the accused. Incidents of planting of
fake evidence against the accused by the investigating agencies are not unknown. The recovery
of explosives similar to those that were used in a criminal act would be an incriminating
circumstance against the accused. However, it cannot, by itself, give rise to the presumption
that the accused had, in fact, committed the said act. Such a presumption seriously affects the
rights of the accused in the context of a criminal trial, which may have serious consequences
for him.

The more fundamental question that needs to be asked in the context of the Indian
criminal justice system is whether reverse onus clauses should be allowed to operate as to facts
in issue in a criminal case. Should any criminal legislation give the courts the power to
presume as opposed to inferring from the evidence, guilt? In such a context, reverse onus
clauses need to be reassessed for their fairness. 5' It is not in doubt that special legislation is
usually enacted to respond to what is perceived as great social challenges or to incidents that
are considered to be extremely disruptive. However, the challenge of great threats to security
or safety cannot be to respond by curtailing the very guarantees of liberty that are promised by
the Constitution and truncating the rights of those, who may be the most affected by such
laws. To allow the State to discharge its burden by the mere act of an allegation or by the mere
collection of some wholly inadequate evidence is to ensure that all citizens are rendered more
vulnerable to misuse of such power.

51 In the context of U.S. constitutional law and statutory presumptions see Note, Consziuziona~y of Reburrable
Presumptions,55(4) COLUM. L. Ruv. 527 (1955); See also Peter D. Bewley, The Unconsziuzionai0 oJSauog Criminal
Presumprions22(2)STAN. L. Ru-v. 341 (1970).
VOL. XIV NALSAR STUDENT LA W REVIEW 2020

CONCLUSION

This Article has endeavoured to highlight some of the challenges presented to the
rights of the accused by special criminal legislations. The points raised here are not exhaustive
and even those that are raised may be dwelt upon in much greater detail. However, the twin
points that are made in this Article are that the theoretical justification for treating certain
crimes as distinct and thus requiring special procedure or substantive laws is unfounded.
Second, it has also endeavoured that the reader will find that in both the application as well as
the statutory design of these special laws, the otherwise basic and inalienable rights of the
accused are deliberately lost sight of, and are suppressed. Often, the justification for this
subversion of the rights of the accused is the serious nature of the offences involved, which by
itself is both inadequate as well as disingenuous. It can also be seen that this disregard of rights
in the statutory design, leads to further violations in practice.

One may argue that any law need not address the situations of its misuse and that the
points made in this Article only point to the misuse of these special laws, and therefore, my
criticism of the statutes per se is unjustified. However, it can be pointed out here, that the laws
that have been analysed are not merely those, which are prone to misuse but are designed for
the particular kinds of misuse to be perpetrated.

A law which disregards the general prohibition on the recording of police confessions,
and at the same time, also ignores the alternate provisions of the recording of confessions
given to judicial officers, is not merely facilitating investigation but ensuring that confessions
are only recorded before police officers, who have a direct interest in ensuring that a
confession does come to be recorded. A law, which extinguishes the right of bail when the
Court may feel that there is some evidence against an accused, has unjustified detention and
incarceration built into its provisions - which is not the byproduct of any abuse but a well-
designed mechanism. To such an extent, any defence of these laws, which is premised on this
misuse argument, is misconceived.