PRESUMPTION OF INNOCENCE: THE EMBODIMENT OF CRIMINAL JURISPRUDENCE
The presumption of innocence, the benefit of doubt, walking without worrying are Human Rights that should be enjoyed by all. - Randi Weingarten
It is indeed a myth to think of a society free from crimes, dogmas and sanctions. There can be no society without the hint of crime and criminals. Crimes and felonies have existed from time immemorial. Even at the most primitive of times there were crimes committed by people living societies. The difference remains in the quantum of punishment and the gravity of sternness. The customs and laws then and the legislation now have evolved in manifolds. Though the practises and sanctions have undergone several changes in the passage of time but certain principles still hold root. One such principle is the presumption of innocence. Even in late medieval and early modern jurisprudence the presumption that a man is gullible played a great role towards an effective justice system. It might strike a curious mind as to why would there be the need to presume innocence of an accused when he was prima facie arrested or charged on the basis on the accusation. In every justice system the rule of fair trial is the key. Every person has the equal and inviolable right to be granted fair trial. The presumption of innocence has an overwhelming importance where the right of fair trial is concerned. Grigore Theodoru mentions that the presumption of innocence emanates from the requirement that no innocent person can be held accountable, safeguarding that anyone, in lack of proof cannot be tried and judged, judicial authorities being obligated on the basis of this principle to administer necessary proof for proving guilt, and in lack of such proof, to conclude upon the innocence of the defendant. With advancements in judicial activism and recent trends in the criminal jurisprudence it can be affirmed that the presumption of innocent is not just any right but an evolved concept of Human Rights.
ANALYSIS AND INTERPRETATION OF THE CONCEPT OF ‘INNOCENT UNTIL PROVEN GUILTY’:
There are three cardinal principles of criminal jurisprudence. Those are: 1. Prosecution to prove its case beyond reasonable doubt; 2. any accused must be presumed to be innocent; and 3. The onus of the prosecution never shifts. The principle of presumption of innocence is based on the Latin maxim "EI INCUMBIT PROBATIO QUI DICIT, NON QUI NEGAT", meaning “the burden of the proof lies upon him who affirms not he who denies". It is the principle that states that a person is considered 'innocent until proven guilty' as coined by the English lawyer Sir William Garrow (1760–1840). The presumption of innocence is considered to be 'the golden thread' running through criminal law. It is a legal principle which encompasses the idea that any person who is accused of a crime shall be presumed innocent until they are proven to be guilty according to law. This broad principle underlines several rights and aspects of an accused person. How an accused is presented before the public can have serious impact on the dignity, wellness and reputation of that person. It is indeed rational and much easier to prove something which 'is' rather than something which 'isn't'. The prosecution is the one that bears the burden of proof that is to say it the prosecution that has the obligation to prove to the honourable court of law that the accused is guilty of the crime beyond reasonable doubt. The prosecution must provide effective evidence and arguments to ensure that the defendant is convicted. In respect of this underlining principle 'presumption' means:
Firstly, with respect to critical facts and circumstances of the criminal case whether the crime which is accused of was actually committed and whether the defendant himself was the person who has committed that crime, the state bears the entire burden of proof. Secondly, the defendant does not have any burden of proof whatsoever. The defendant has no compulsion to testify or present witnesses or any other evidence to the case. If the defendant elects not to testify or present any sort of evidence, this decision cannot be used against the defendant. Thirdly, the defendant shall be treated according to the principles of natural justice and shall not be denied of any rights provided under the law in force and fourthly, the judge shall not draw any inferences defeatist in nature from the very fact that the defendant has been accused or charged with a crime. The judge must decide the case absolutely and entirely on the basis of the evidence produced.
BURDEN OF PROOF AND REASONABLE DOUBT WITH REGARD TO CRIMINAL MATTERS:
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. The onus to prove guilt of accused lies on the prosecution and no onus is cast on accused to prove his innocence by producing cogent evidence. The prosecution needs to prove the guilt of the accused beyond reasonable doubt. If there arises even a hint of reasonable doubt the accused may be acquitted. This presumption of innocence does not end if the accused makes any further appeal. Even if he is convicted at a lower court, but he appeals to a higher court, then the presumption of innocence still remains. This presumption applies at all the stages throughout the appeals until the ultimate legal remedy is exhausted. The burden of proof resting upon the prosecution’s shoulders should be relieved by it; unless the prosecution does so, the court cannot find the accused guilty. The rule of benefit of reasonable doubt does not imply a frail willow bending to every whiff of hesitancy. Judges are made of sterner stuff and must take a practical view of legitimate inferences following from the evidence, circumstantial or direct.
Presumptions are based upon public policy; the fact assumed as a result of the presumptions is so assumed because the policy of the law prefers its existence to its non-existence. The importance of that particular law will decide the quality and quantity of evidence required to rebut the presumption. The presumption should be so strong that not only is the accused entitled to the benefit of it, but if a case is a doubtful one then this presumption must be enough to tip the scales in the favour of accused. The accused is neither required to vindicate his innocence by naming another man ‘guilty’ nor is he required to produce any evidence that affirms his innocence; the burden of proof always lies on the prosecution. Presumption of innocence is the general rule of evidence, it is akin to maintain the status quo of the defendant. The Evidence Act does no contemplate the fact that the defendant must present their side of case with the same rigour as that of the prosecution. The burden of proof and the reasonable doubt always remain in harmony of each other. It is the cornerstone of criminal jurisprudence in consonance with fair trial. Section 102 of the Indian Evidence Act 1982 deals with this subject. It states that: 'whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist'. A man cannot be called guilty before a sentence has been passed upon him by a judge or jury. Every man is innocent until proven guilty. Hence, the infliction of unusual rigours on the accused must be delayed until his innocence has been challenged successfully. Any man being presumed innocent until he is declared culpable if it is judged indispensable to arrest him, any rigor which would not be necessary for the securing of his person must be severely reprimanded by the law.
THE ENGAGED CONCEPT OF THE PRINCIPLES OF NATURAL JUSTICE:
The three principles of natural justice include:
1) The doctrine of bias: this doctrine is derived from the maxim: NEMO DEBET ESSC JUDEX IN PROPRIA CAUSA which translates into, nobody shall be a judge in his own cause or in a cause in which he has interest
2) AUDI ALTERAM PARTEM: it literally means to hear the other side. This principal is necessary to provide fair treatment and to follow due process of law.
3) Reasoned decision: giving reasons for a decision ensures effective administration of justice and withers away arbitrariness.
The above principles are a safeguard to the essence of fair adjudication and are ranked to be fundamental. These principles do not supplant the laws of land but only supplement it. In absence of any provisions the principles of natural justice will have to be observed in all judicial, quasi-judicial and administrative proceedings. The attribute of the presumption of innocence until proven guilty servers a thread that binds the principle of natural justice with criminal jurisprudence. It would be questionable and debatable as to why an accused be provided with this benefit which might mar justice to the victims of crimes. But one must also consider that to presume someone as innocent includes giving them a benefit of doubt. It also includes the presumption of the fact that the person might actually be innocent in spite of the heinousness of the crime. Audi Alteram Partem gives the right to the accused to refute the evidence and the witnesses produced by the prosecution. It gives him the right to prove that he did not commit that crime. It gives him the right to save himself from the punishment that he would have to face if he is somehow proven guilty. If an accused is not allowed to state his side of the incident, then that would lead to a gross miscarriage of justice and biasness. If Audi Alteram Partem will not be applied then there will be a practise of presumption of guilt and not presumption of innocence.
ORIGIN AND INTERNATIONAL MOMENTUM:
Long ago, since biblical times, our eyes have been a witness to various types of crimes. The god was once questioned, “Lord, will you slay a nation even though blameless?” An apt reply to this was further given by the Lord “remember now, whoever perished being innocent?”. This serves as evidence that the origin of presumption of innocence dates back to the holy bible. The Babylonian Code of Hammurabi (1792-1750 B.C), one of the oldest written codes of law required that, anyone who is making a criminal accusation to prove guilt and exercised the import of this very procedural safeguard by imposing a death sentence on certain false accusers. In early Romanian laws it was a very serious offence to risk the reputation, the fortunes and finally the status and the life of another without compelling proof. Dated back to the year 1398, was a case where two fellow beings Salamon and Moyses were accused of having sexual relations with a number of women and blinded them in their web of lies stating that Christian women who fornicated with Jewish men did not sin. This case fell under the jurisdiction of Franciscan inquisitor Johannes de Pogiali. The case called for witnesses, examinations and oaths but in the end the accusations lacked foundation and legitimacy. While giving the judgement he opined, “It was better to leave a crime unpunished than to condemn an innocent person”.
Article IX of the French Declaration of Rights of Man and Citizen states that 'as all persons are held innocent until they shall have been declared guilty, if arrest shall be deemed indispensable, all harshness not essential to the securing of the prisoner's person shall be severely repressed by law'. The French declaration has force as Constitutional law. It is an epitome of rights of all persons. The French Code of Criminal Procedure in its preliminary Article states that "any person suspected or prosecuted is presumed innocent for as long as their guilt has not been established". Articles 8(1) and 8(2) read with Article 1(1) of the American Convention of Human Rights states that "the presumption of innocence is a guiding principle in criminal trials and a foundational standard for the assessment of the evidence. Although it is not explicitly mentioned in its charter the presumption of innocence can be implied from the 5th 6th and 14th Amendments of the US Constitution. The sixth title of charter of Fundamental Rights of the European Union, “justice” covers the right to fair trial, right to presumption of innocence among others. Article 48(1) of the above charter affirms the existence of presumption of innocence in the European nations. It reads: “anyone who has been charged shall be presumed innocent until proven guilty by law.” The European Convention for the Protection of Human Rights and Fundamental Freedoms also affirms the existence of this principle. In various countries under various provisions the right of presumption of innocence has been enshrined. To name a few, in Canada, section 11(d) of the Canadian Charter of Rights and Freedoms, in Italy, the second paragraph of Article 27 of the Constitution, in Iran, Article 37 of the Constitution of the Islamic Republic of Iran, in Romania, Article 23 of the Constitution , the Constitution of Russia, in Article 49, in the South African Constitution, in New Zealand, the New Zealand bill of rights 1990 provides at section 25 (c) , have all welcomed this principle with open arms and endeavoured to include them in their municipal laws.
This principle has also swayed its path into the charter of Universal Declaration of Human Rights, Article XI which directs that 'everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. The International Covenant on Civil and Political Rights has also underlined this principle. It is now well established that all across the globe the presumption of innocence is not only regarded as a vital principal but also a crucial right of an accused person. For the first time, in the United States of America, the innocence of an accused was presumed in the year 1895. It was said in Coffin v. United States that the principle that there is a presumption of innocence in the favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the base of the administration of criminal law. The landmark cases of Woolmington v. DPP the accused had admitted that he killed his wife but it was merely an accident as the gun went off without his knowledge. The trial judge directed the jury that once the prosecution had shown that the accused had killed his wife the burden of proof shifted to the accused to show that it was accidental i.e., to prove his defense. The House of Lords held this to be incorrect as the burden of proof always lies with the prosecution and once a defense is raised the accused is entitled to be acquitted unless the prosecution disproves that defense. Hardiman J. stated that: - “the presumption of innocence is a vital, constitutionally guaranteed, right of a person accused in a criminal trial and that the right has been expressly recognized in all of the major international Human Rights instruments currently in force”.
INDIAN STATUS QUO:
At times like present, where each state is powerful, it is the criminal justice system that beholds its sovereignty. This system is the reflection on how a society functions at the fundamentals, on how it treats the repressed and vulnerable and on what principles it delivers justice to the deserving. A state’s power has no boundaries but, that must not be an excuse to reason with the fact that it can use its power recklessly and unbridled. A state cannot curtail the fundamental rights of its citizens, accused of a crime or not even in the world’s largest democracy. In order to shield the rights of the people the Constitution of India has laid down several provisions one of them being of extreme importance, Article 21 the right to life and personal liberty. Through a number of judicial advancements, the scope of Article 21 has evolved in manifolds. To have a life of dignity is an important aspect of Article 21. Another Article which talks about the presumption of innocence in the Indian judicial system, is Article 20(3). This Article talks about the accused’s right of silence. The accused should not be held guilty or his guilt should not be presumed on the basis of his refusal or incompetence to answer the questions put to him by a court officer or the police. This right of silence is based on the principal ‘NEMO DEBET PRODERE IPSUM’ i.e., the right against self-incrimination.
Even a person who is accused of a crime has a firm hold over this right. Amidst severs rights of an accused person lies the right to be presumed innocent until proven guilty. After being acknowledged by the House of Lords in the landmark case of Woolmington v DPP the Supreme Court of India has vehemently followed the principle of presumption of innocence and is an established principle of Indian criminal jurisprudence. It is of keen interest to notice the fact that though this principle is well established it is not rooted in any provision of Indian legislation, but though not explicitly mentioned in the Constitution, presumption of innocence is nevertheless a potent background to the conception of justice, in preserving confidence in enduring integrity and security of a legal system the freedom of an individual cannot be curtailed for infinite period, especially when his/her guilt is yet to be proved and must be considered innocent till found guilty. It was followed in the case of Chandra Shekhar v. State of Himachal Pradesh that it is of utmost importance and cannot be curtailed for indefinite period, especially when guilt, if any, is yet to be proved. It is settled law that till such time guilt of a person is proved, he is deemed to be innocent. A presumption of guilt is where it is presumed that a person is guilty instead of innocent in any criminal justice system. In such times, the burden of proof shifts on the defence and it has to collect in order to prove that the accused indeed is innocent, in order to obtain acquittal. There are more chances of an innocent person being found guilty in such cases. 'Presumptions of guilt' and 'prima facie' cases of guilt in the trial of a party charged with crime mean no more than that from the proof of certain facts the jury will be warranted in convicting the accused of the offense with which he is charged.
PRACTICAL APPLICABILITY AND THE BITTER TRUTH:
It is an established fact that presumption of innocence is an elemental right not open for any sort of discrimination. But despite that in practice a whole different scenario unveils. Throughout the trails and proceedings or pre trials for that matter a number of factors lead to the violation of this principal. A practical foresight is that the media trials, public statements of guilt and the blanketing world of social media are distinctly responsible to spread rumours and present suspects to the public at large in a manner as if they are guilty even before the courts proclaim judgement. The matter at hand and the false accusations are completely opposite in nature. When public interest is of concern and the case is sensitive and attention -grabbing the suspects are often presented to be guilty and the reporting is certainly off balance. It is the marginalised and repressed class that bear the brunt of this violation at huge levels. Media trial is defined by the Supreme Court as "the impact of television and newspaper coverage on a person's reputation by creating a widespread perception of guilt regardless of any verdict in the court of justice'. Although everyone has the right to be presumed innocent, this right is frequently being violated in practice. This practice has led to many irrefutable damages done to a person's reputation causing great mental agony. To cope up with this problem it is of foremost importance that there is implementation of laws that directs on how suspects should be presented in public and should also limit the use of restraints and exposure to public and press at the time of arrest and during the trial. It is accepted that robust law plays a vital role but they are not enough. It requires a long-term engagement of enforcement of laws, effective implementation and awareness, and unison of media and people for a better approach toward imparting justice.
WRONGFUL ARREST AND DETENTION: A RESULT OF NEGATION OF THE PRINCIPLE:
The state has an abundance of power, a power that is wilfully used for adjudication, legislation, execution, detention, apprehension, prosecution and conviction. It is well established that in a criminal case the accused has to defend against the state even if the immediate harm is done towards an individual. The reason stands that any crime though afflicted toward one person is suffered by the entire society. The state prosecutes the criminal case being the guardian of society and the protector of the rights of its people. An entity so powerful, can, at any time, turn into a tyrant and arbitrary element. If the powers are not kept in check the result would amount to injustice to a large number of people. Since the accused stands against the state the scales often weigh more on the latter’s side. In many recent judgements, it is an acknowledged fact that individuals have been falsely arrested and detained for the offences against the state. These cases highlight the need for criminal accountability on the part of the state. An accused when not presumed innocent narrows down the chances to find rather subsequent suspects and restrict the guilt to that one person resulting in wrongful judgements and an irreversible jail time. The National Police Commission in its third report has pointed out that the power of arrest is one of the chief sources of corruption in the police. According to the report, nearly 60 per cent of the arrests are either unnecessary or unjustified.
The case of Assam’s Madhubala Mondal is a case that adds into the scenarios of wrongful arrests and detention. Madhubala Mondal a 59-year-old widow was wrongfully detained for three years in Assam as a result of mistaken identity by the Assam police. The police branded Mondal as a 'foreigner' and arrested her while they were actually looking for Madhubala das who lived in the same village but died 20 years ago. In yet another case, Mohammad Sanaullah, retired army officer, who served the nation for 30 years was declared an illegal immigrant and detained for 12 days. He was released after it was discovered that the officer in charge had mixed-up the arrest reports. In her book titled ‘Prisoner no. 100: an account of my nights and days in an Indian prison’, political activist Anjuman Zamarud Habib recounts her experience of having wrongfully detained in jail before being released by Delhi high court. Anjuman writes in her book, “I am a free person today but the wounds and scars that jail has inflicted on me are not only difficult, but impossible to heal”.
'Framed as a terrorist: my 14-year struggle to prove my innocence' is yet another narrative of a young Indian Muslim who spent his 14 years of life in a jail cell for wrongful arrest and detention as he was framed a terrorist. India is a signatory to the ICCPR which provides for the provision to take steps to provide compensation to the persons who are wrongfully imprisoned and detained. Though India has expressed reservations while ratifying the ICCPR but has not recognised the right of compensation to the victims of wrongful arrest and detention. These unlawful arrest, imprisonment and detention not only cause loss of days and years in jail cell but also causes emotional torment. It creates a stigma and such people are ostracized even after being released after being proved innocent. This harms a person’s reputation in ways unimaginable.
The principal of presumption of innocence imposes to the court not to start with a preconception that the accused or the subject has committed the crime or that the accusation has any reason to prove anything or that the accused is guilty of the crime charged. Instead, the court has to begin with a clean slate and balance the scales of justice to equilibrium so that justice prevails in all forms. What if, for a moment we imagine ourselves in a world in negation of the principle of presumption of innocence? All we could imagine would be chaos and gross miscarriage of justice. Every other suspect or every other accused will be prejudiced as guilty right from the beginning without any lawful justification. The conclusive judgement would acclaim to be biased and entirely based on misinterpretations. The judges, the jury and even the layman would fill in their eyes with hatred against that person and would only see him as a person guilty of a crime. Innocent persons would be behind the bars and punished solely on the basis that they might have committed the crime accused of at the face front without concrete evidence. This would lack deep surfacing of facts and vital evidences for the mere reason that the person was not presumed innocent. On a more practical outlook, it creates a wall of suspicion and restricts the idea of finding an alternative suspect. There are many instances where a person was wrongfully arrested just because he was at a wrong place and at the wrong time. In essence, the presumption of innocence provides a safeguard to the person accused against the verdict that has yet not been reached yet. This principle nowhere obstructs justice to the victims of crimes, it simply places them into equal footing so that no person is left out it the whole process, it makes it certain that these innocents are not made victims to unjust practice of law. Justice serves best where balance is maintained. Though this principle is a right as well as an asset, it shall be used with caution and not deliberately without conduct. To ensure that no innocent is left to rot behind bars for offences not committed by them, to mark the very essence of justice equity and good conscience, to embrace the democratic nature of a nation in its true spirit and to safeguard the principles of natural justice, the courts have a duty towards the law in force and the principles that turn into Human Rights. When an innocent faces conviction the legal fraternity comes into picture. The need of these raw principles gets highlighted for the betterment of all. It is accurately stated by Blackwood that, "it is always better to let off 10 guilty persons than to punish one innocent" and as enunciated in various pronouncements and provisions, the principle of presumption of innocence stands firm as an embodiment of criminal jurisprudence.
Gr. Theodoru, Treaty on Procedural Penal Law, Hamangiu, Bucharest 2007, p. 94
Rabindra Kumar Dey v. State of Orissa 1977 AIR 170,1977 SCR |(1) 43
Moore, Christopher 1997 the Law Society of Upper Canada
UK, Woolmington v. DPP  UKHL 1
Mueller, Christopher B.; Laird C. Kirkpatrick (2009). Evidence; 4th EDITION.
Dr. Mahendra Singh Dhaiya v. State (CBI),2003 Cr LJ 1908
Allen v. Commonwealth, 171 Va. 499, 198 S.E. 894, (1938)
Kali Ram v. State of Himachal Pradesh, 1973 AIR 2773
Dharamdas Wadhwani v. State of Uttar Pradesh, 1975 AIR 241
Washington law review, the presumption of innocence in criminal cases, 1941, page 83.
McBride v. Commonwealth, 95 Va. 818, 30 S.E. 454 (1898)
Talmud, Aaron Kirschenbaum, double jeopardy and entrapment in Jewish law, 3 Israel books on Human Rights, Rights. 202 (1973).
Article IX, the French declaration of rights of man and citizens, 1789.
A.K Kraipak vs. Union of India (AIR 1970 S.C.150)
Victimology: Theories and Applications, Ann Wolbert Burgess, Albert R. Roberts, Cheryl Regehr, Jones & Bartlett Learning, 2009, p. 103
Journel of civil rights and development by Sofia Yakren volume 33 issue 1 summer 2019
The Apostolic See and the Jew: Documents: 492-1404
Déclaration des droits de l'homme et du citoyen de 1789
Code de procedure pénale, préliminaire (in French)
Court H.R., Case of Zegarra Marín v. Peru. February 15, 2017. Series C No. 331
Article 6.2 Convention on protection of Human Rights and Fundamental freedoms
Article XI, Universal Declaration of Human Rights, 1948.
Coffin v. United States, 156 U.S. 432 (1895)
Woolmington v. DPP,  UKHL
DPP v. DOT (2003)
The Constitution of India, 1948
Dataram Singh v. State of Uttar Pradesh & Anr (2018) 3 SCC 22, CrMP (M) No. 816 of 2018
State v. Brady (1902) 91 NW 801
Nabil Ahsan 'Media trials undermine the presumption of innocence'
Constitutional law of India, J.N. Pandey, 55th Edition
The Hindu JUNE 26, 2019
NDTV June 09, 2019