The Indian state Uttar Pradesh recently notified Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 which attracted massive outrage as it was seen as an attempt to criminalize freedom of faith and conscience. Although the bill was seen as an attack on religious harmony and secularism, it also gave space for a disturbing trend of reverse onus clauses which went rather unnoticed this time. Section 12 of the said bill stipulates that

the onus of proving that religious conversion was not effected through misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage would lie on the person who caused the conversion and where such conversion was facilitated by any person on such other person.

Reversal of the burden of proof has long been seen as an attack on the rights of the accused in a criminal justice system. Reverse onus clauses essentially dilutes the presumption of innocence of an accused which shields an accused from arbitrary conviction.

Section 12 of the abovementioned act is really peculiar in the sense that it does not mandate for the prosecution to prove some foundational facts as has been the norm in other reverse onus provisions under a different law.

The apex court of the country expressed its concern over increasing attacks on the presumption of innocence through reverse onus clauses in the case of Noor Aga v State of Punjab.

The court observed that only limited inroads into the presumption of innocence can be and subsequently, the court stated that only when certain foundational facts are established the burden can be reversed. The court while reaching the said conclusion also referred to article 11 of UDHR which stipulates for the presumption of innocence until proven guilty as a facet of the right to a fair trial.

The issue of procedural fairness and reverse onus provision was also discussed in the case of Sheikh Jahid Mukhtar where the Bombay High Court observed that limiting individual liberty is only permissible while balancing the interests of the state in securing the conviction of an accused, particularly in the cases of heinous crimes or socioeconomic offences which has wider national implications.

In the present case, no empirical data exists to show that conversion even if we assume it is forced happens at such a wide scale that it warrants criminalization in the first place. Reversal of burden in addition goes against the very rationale where reversal was considered justified.

Presumption of innocence is an inseparable part of the right to a fair trial which emanates from Article

  1. As observed in the Maneka Gandhi case the personal liberty of an individual can only be curtailed by a procedure established by law which is just fair and reasonable. Excessive

reassortment reverses onus clauses erode the sacrosanct principle of the criminal justice system. The presumption of innocence demands that guilt be unequivocally established through the trial process before the serious consequences and stigma of a criminal conviction are imposed on a person charged with an offence.

This requirement has a positive and symbolic value not only in defining a minimum mandatory standard of protection but as well, in promoting a systematic and consistent application of criminal law rules and principles, thus enhancing the political legitimacy of the criminal sanction.

Considering the grave social and personal consequences of criminal conviction presumption of innocence ensures the innocence of the accused until the state proves his guilt beyond a reasonable doubt. This value is essential to a society committed to fairness and social justice and confirms our faith in mankind by believing that individuals are decent and law-abiding until proven otherwise.

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