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30 Jun 2016

Peoples Union for Democratic Rights (PUDR) notes with concern provisions of the Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, 2016. The Bill seeks to prevent trafficking of persons and to provide protection and rehabilitation to the victims of trafficking. However, the bill is regressive in its understanding, and draconian in its application of laws, so much so that it shifts the burden of proof from the prosecution to the accused. It is a direct attack on the due process and right of fair trial which are not only constitutionally guaranteed rights but fundamental rules of law.

Section 24 of the Bill lays down that in case of a person prosecuted for committing or abetting or attempting to commit offences under Sections 16 and 17 of the proposed legislation and Sections 370-373 of the Indian Penal Code  the “Special Court shall presume that such person has committed the offence, unless the contrary is proved”.

Section 370-373 of the Indian Penal Code, 1860 deal with provisions of trafficking in humans, exploitation of trafficked persons, buying and selling minors. Section 16 and 17 relate to use of drugs, narcotic substances, and chemicals in relation to trafficking of women. PUDR is of the view that the presumption of guilt will provide occasion for corruption and harassment of sex workers. Using this presumption of guilt, police will be able to exploit sex workers by threatening prosecution.

Section 21 of the Bill similarly states that the burden of proving that the property attached and confiscated is not acquired or used in the commission of the offence shall be on the accused person.

It may seem innocuous and a provision in public interest. However, the problem with shifting of burden of proof is that it puts the accused at a great disadvantage. The prosecution has to simply state that accused has committed the crime; failure to disprove the allegation would invite conviction. In this context, Salem Witch Trials may be remembered where mere accusation that the woman was indulging in witchcraft was enough and incurred death by hanging.

Turning Presumption of Innocence into Presumption of Guilt and Reversal of Burden of Proof

The presumption of innocence is the cornerstone of right to life, liberty, and criminal jurisprudence. The burden of proof to establish the commission of an offence leading to deprivation of liberty is on the prosecution.

The whole sale reversal of the presumption of innocence and laying down that a person accused of offences specified under the Bill is to be presumed to be guilty is violation of the rights to life, liberty, rights to move around freely and reside in any place of choice. In effect it would mean the onus of investigation, collection of evidence, locating witnesses would be placed on the accused to prove his innocence.

Once such a presumption is allowed to enter the arena of criminal jurisprudence, it paves the way for extension into other laws, curtailing freedoms of life, liberty, speech and expression. Legitimacy would get accorded to the presumption of guilt, and the onus of proving innocence would be placed on the accused. These provisions could be extended to laws in the arena of censorship, ‘patriotic’ legislations, sedition laws, ‘organised crimes’ and anti-‘goonda’ laws.

PUDR strongly condemns the shifting of the burden of proof and the reversal of the presumption of innocence and appeals for the removal of Sections 24 and 21 from the proposed Trafficking of Persons (Protection, Prevention and Rehabilitation) Bill, 2016.

 Moushumi Basu, Deepika Tandon

Secretaries, PUDR


30th June 2016