Protection of Children from Sexual Offences, or as commonly known the POCSO Act came into existence in its present form in the year 2012. With the evolution of time the parliamentarians have realised that there need to been an evolution, also in the laws of the country. The number of sexual offences recording since the past few decades has been rapidly increasing. Also, we saw a drastic increase in the number of sexual offences happening on children. Thus noticing this increase our parliamentarians with much pressure from the civil society and various NGO’s brought into effect changes in the legislation by bringing into force a whole new Act which came to be known as the POCSO (Protection of Children from Sexual Offences) Act.
This action of the Government was praised and also criticised as well. Some said that the fact that the govt. recognised the need for a law to handle this serious issue of child sexual abuse is highly appreciable, whereas on the other hand some said that there was no need for an entire new act, instead the govt. could have just added sections into the already existing laws.
The most drastic change in this new act is that the burden of proof lies upon the accused and not the victim. The judicial system of our country had always been that an accused is innocent until proven guilty beyond reasonable doubt. This phrase of presumption of innocence got transformed to presumption of guilt for all the accused that are to be tried under the POCSO Act. This was a major transformation that has been critically analysed by a number of academicians, lawyers and judges alike.
This concept of presumption of guilt first came into light in king Julian’s court in Greek somewhere between 361-363 B.C. when the king’s treasurer was being tried before the king. The prosecutor could not bring enough evidence to prove the accused guilty beyond reasonable doubt thus, the accused was about to be released when the prosecutor stated” Oh, illustrious Caesar! If it is sufficient to deny, what hereafter will become of the guilty? ”to which Julian replied, “If it suffices to accuse, what will become of the innocent” This was a landmark case that laid the foundation of the debate that sparked between the concepts of presumption of innocence and presumption of guilt.
The next major advancement in this debate was the Woolmington V. DPP case in the House of Lords, 1935. The facts of the case briefly were as follows, Woolmington, the accused was a 21-year-old farm labourer. Three months after his marriage to 17-year-old Violet Kathleen Woolmington, his wife left him and went to live with her mother. The next month Woolmington stole a double-barrelled shotgun and cartridges from his employer, sawed off the barrel, throwing it into a brook, and then bicycled over to his mother-in-law’s house where he shot and killed his wife. He was arrested and charged with the willful murder of his wife. The advocate on behalf of the accused argued the fact that there was no doubt that the lady was killed by the bullet fired by the accused but the fact that he wilfully murdered was questionable. The accused had no intention of murdering his wife, instead he just wanted to threaten her and that the shot got fired by accident.
The trial court convicted the accused of murder stating that the burden of proof of the fact that the shot was fired by accident lay upon the accused. In a manner the trial court stood by the principle of presumption of guilt. The accused went to the House of Lords and put his case forward. The House of Lords in a unanimous judgement acquitted the accused of murder charges through their famous judgement, where they laid down firmly the presumption of innocence.
“Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt subject to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”
This judgement heavily brought down all the criticism of the theory of presumption of guilt and laid the principle of presumption of innocence.
India being a Commonwealth country has always taken precedence from the Common Law, but this recent change in the POCSO Act says a lot about the country’s legislative authorities. Are our parliamentarians looking of going beyond the principles laid in the Common Law? This is a question that will surely linger on for some time, yes, we do need to evolve with time, but are we going the right way in doing so?