The father of all laws and statues in India is Constitution of India., and Constitution of India itself guarantees citizens of India., equality before law…i.e., everyone should be treated equally; there should not be any discrimination.., and if we see this from the lens of Indian Judicial System we can conclude that., this means everyone should have a chance of equal representation before the courts and have fair trial. In numbers of landmarks verdicts of Hon’ble Supreme Court.., it has been held that fair trail is foremost thing which needs to be taken into consideration when the trial begins. POSCO meaning Protection of Children from Sexual Offences which came into force as a statue in India in the year 2012. This statue had been rolled out for the very purpose to protect the children from any kind of sexual activities in India. Although this very specific statue is overall serving its objective but 29 and 30 sections of POSCO are against the equality which is enshrined in the Constitution of India.
29. Presumption as to certain offences.—Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.
30. Presumption of culpable mental state.—(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
If you look at the wording of section 29 and 30 of POSCO.., you can clearly conclude that it says that on whomsoever this act is being charged.., the court shall presume that he/she had done that act without reasonable doubt.., it upon the defendant on whom the burden of proof lies for proving himself/herself innocent. These sections of POSCO clearly goes against the constitutional idea of equality and fair trial. If the Hon’ble Supreme Court have to determine the constitutionality of these sections of POSCO.., they can determine it by considering one of the historic trial which showcases the fundamental of free and fair trail in Indian Judicial System.., i.e., The Ajmal Kasab Case.., where everyone knows that Kasab had killed innocent people, there were cctv footage available but our Judicial System has acted in accordance with the Constitution and gave the fair chance to that terrorist to present his case in Indian Court. If that terrorist had the right of free and fair trail without any presumption of guilt then why these particular sections of POSCO stipulates the presumption of courts in the cases of POSCO. It’s a very serious and concerning matter which needs to be taken into account to safeguard the rights of people which Constitution itself guarantees them. If the power is vested in the hands of apex court of the country to safeguard the people’s right then it becomes the duty of the apex court to taken this matter in their cognizance and decide. It’s not about mere deciding the constitutionality of these particular sections but if we fail to do so then Parliament in future can legislative and pass any law or statue which will curtail the rights of people.., if we don’t take the appropriate measures to determine the constitutionality of these sections then in future state will roll out more laws and statues which limits the rights of people and it’ll poses a serious threat to democracy in our country.