The Supreme Court says, rightly, that the legal process itself has become a punishment. Political vendettas can include raids by the police and tax authorities, targeting individuals and institutions to teach them a lesson
The Supreme Court says, rightly, that the legal process itself has become a punishment. Political vendettas can include raids by the police and tax authorities, targeting individuals and institutions to teach them a lesson.
Laws on sedition, unlawful activities, hate speech and money laundering define crimes so broadly as to include the kitchen sink. Cases can be launched against an individual from multiple cities, requiring the defendant to hire a battery of lawyers across the country. Even if a targeted person is innocent, his or her life, reputation and peace of mind are utterly destroyed.
The problem is worse where the law reverses the traditional maxim that a person is innocent till proven guilty. This is a fundamental principle of law globally. But in India, the legal process has been so tardy and ineffective for decades that legislatures have increasingly enacted laws presuming the accused is guilty until proven innocent. This shifts the burden of proof from the prosecution to the defendant. In many countries, this would be called not just bad law but violation of human rights.
We need a movement to ban the presumption of guilt in all but extreme cases and persuade the Supreme Court to lay down the strictest conditions.
A starting point may arise from the government’s attempt to extradite from London an alleged arms dealer, Sanjay Bhandari,for offences under Indian laws on black money and money laundering. Other extradition cases of glitzy businessmen such as Vijay Mallya have made the headlines. Bhandari’s case has attracted little attention. Yet it may turn out to be significant.
Legal delays mean that Mallya’s case has not been decided after more than five years. Among other things, Mallya has argued that his human rights would be violated in India because of prison conditions. The British court has rejected this plea. Bhandari’s pleas on this ground may fail too, but he has other arguments.
He is accused of receiving kickbacks in some defence deals. Allegations have also been made of dubious deals entailing money laundering, some connected with Robert Vadra, son-in-law of Sonia Gandhi. He is also accused of violating the Official Secrets Act.
Bhandari claims he is a victim of political vendetta. In other extradition cases such as that of jeweller Nirav Modi, the global watchdog Interpol has issued a Red Notice. But its website shows no such notice against Bhandari, who claims this is evidence that Interpol finds force in his claims of vendetta.
Bhandari’s lawyer is top extradition expert, Edward Fitzgerald, who has represented many high-profile defendants in the past, including former Italian prime minister Sivio Berlusconi, WikiLeaks founder Julian Assange and Indian fugitive Mehul Choksi.
Black money law
The black money law under which Bhandari’s extradition is sought has a presumption of guilt. Fitzgerald has argued in court that Section 54 of the Black Money Prevention Act, 2015, violates human rights by placing the burden of proof on the defendant.
According to British law, “mens rea” or “guilty mind” must be proved on the part of any accused before he or she can be found guilty. But Section 54 of the Act says that, “In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such a mental state.”
This is contrary to British law, where the accused is assumed innocent till proven guilty. Britain maintains the old maxim that it is better for a thousand guilty persons to go free than for one innocent person to be jailed.
The verdict in this case is expected in November. If the court upholds Bhandari’s argument on the burden of proof, it will provide strong grounds on which to challenge this and many other Indian laws that reverse the burden of proof.
Maybe such reversal is needed to deal with extreme cases of insurrection or terrorism. But the approach has spread far and wide in India. It has spread even to dowry, an ancient tradition now declared illegal. Tradition makes it difficult for wives to complain of dowry demands, so the law was changed to presume husbands guilty till proven innocent. Alas, in marital disputes, lawyers now routinely advise female clients to make false allegations of dowry demands. The attempt to correct the injustice of tradition has created a new injustice.
Human rights organisations should make a concerted effort to get the Supreme Court to review the entire approach of such laws. The court should stop unqualified application of the reversal of burden of proof and lay down strict guidelines restricting reversal to extreme cases. That is a key human right in other liberal democracies. It should be the case in India too.
This article was originally published by The Times of India on October 16, 2022.