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Journal of the Indian Law Institute
I Introduction
IT HAS been observed by Justice Frankfurter that "more than one studen
society has expressed the view that not the least significant test of the quali
civilisation is its treatment of those charged with crime, particularly with offen
which arouse the passions of a community".1 This is equally true of the terr
crimes where the accused may represent a value outside the legitimate "v
choice" of that society. Let us in this context examine a select area of eviden
methods utilised to adjudicate and pronounce guilt - a method arguably never see
so far in any jurisdiction and hopefully will never be presumptive confessi
They are unique to Indian jurisprudence, the prime examples being sections
and ( d) of the Terrorist and Disruptive Activities (Prevention) Act, 1987.3
Out of the many, one of the evidentiary methods to arrive at proof of guilt
an accused is to let him have his say, i.e., by means of a confession. The mo
of the accused's impelling reasons to confess apart, what more authentic re
struction of the commission of the offence can be there than an accurate descri
tion by the accused himself. Indeed a confession is the 'best evidence'4 - t
illusory conceptual standard which every criminal justice system seeks. How
even the utopia of confession is tempered by stark reality, which is why co
zealously guard against the spectre of threat, coercion and involuntariness
confession.
On this attempt to seive the truth from the untruth depends the liberty of an
individual and the acid test of civilised society. Any attempt to take away this
truth finding function of the courts by means of presumptions affecting the
probative value of confessions would be arbitrary and therefore unconstitutional.
It is easy to be cynical5 but the rule of law must prevail for continued societal
functioning. As the Supreme Court has cautioned :
[W]e state that there should be no breach of procedure and the accepte
norms of recording the confession which should reflect only the true and
voluntary statement and there should be not room for hyper criticism th
the authority has obtained an invented confession as a source of proo
irrespective of the truth and creditability as it could ironically be put tha
when a Judge remarked 'Am I not to hear the truth', the prosecutio
giving a startling answer 'No 'Your Lordship is to hear only the evi-
dence'.6
(1) General
The word 'confession' has nowhere been defined in the Indian Evidence Act 1872.
It has been mainly construed through judicial dicta. The various types of confes-
sions known to evidence law in general, can be summed up as :
(v) Presumptive confessions (confessions being the fact proved upon which
a presumption is based).21
16. See, Vikramjit Reen, "Presumptions : Irreverence and Irrelevance", 36 J.I. L.I. 247 (1994); see
also, Maneka Gandhi, supra note 13 at 338; Sunil Batra v. Delhi Administration, (1978) 4 S.C.C. 494
at 518, 541; Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 684 at 730 (per Sarkaria J.).
17. Coffin v. United States, 156 U.S. 432 (1895).
18. Estelle v. Williams, 48 Ed. 2d 126 at 130 (1976).
19. This argument has never been raised before Indian courts though, under criminal law, the courts
have been applying it in the form of 'benefit of doubt' rule; see, State ofU.P. v. Krishna Gopal, A.I.R.
1988 S.C. 2154 at 2160-1.
20. Ss. 24, 30, Indian Evidence Act 1872.
21 . Supra note 2.
Of these, the most relevant for the present discussion are the latter three whi
need to be enumerated in detail. Before so proceeding, it would be useful
exactly delimit the contours of the word 'confession' as construed in evid
law. The law was unsettled in the earlier times. Till 1939, Stephen's definitio
Confession in his Digest of the Law of Evidence was generally accepted. T
states :
However, the point was settled by Lord Atkin by expressly rejecting the a
definition. He observed :
It has been further held that the acid test which distinguishes a confession
from an admission is that where conviction can be based on that statement alone,
it is a confession and where some supplementary evidence is needed to authorise
a conviction, then it is an admission.24 Therefore, confession is not a mere
admission (as Stephen opines), but stands at a different footing.
22. See, Pakalanarayan Swamy v. King Emperor, A.I.R. 1939 P.C. 47 at 52.
23. Ibid.
24. Ram Singh v. State , cf : N.L.S.I.U., Cases and Materials on Evidence.
25. Nirmal Singh v. State of Himachal Pradesh, 1987 Cri. L.J. 1644 at 1650 (per T.R. Handa J.).
The Indian Evidence Act 1872 has made a radical departure by allowing
courts to consider the confession of a co-accused under section 30. The raison d'
et-re of the section seems to be that a confession of the co-accused's own guilt
besides implicating the accused, affords some sort of sanction in support of the
truth of this confession against others as well as himself. The confession of the co-
accused is one of the weakest possible evidence against the accused.
Indeed, it is not "evidence" in the true sense as it does not come within
section 3 of the Evidence Act. It is not required to be given on oath, nor in the
presence of the accused and cannot be tested by cross-examination. Section 30
merely provides that the court may take the confession into consideration ; in that
remote sense it is evidence for courts to act on, but the section does not say that
it amounts to proof Judicial dicta has established that these confessions are only
one element in the consideration of all proved facts of the case, merely to be
weighted with other evidence.28
Hence, the confession of a co-accused is not substantive evidence against the
other accused persons at the trial but can only be used for lending reassurance if
there is other substantive evidence to be utilised or acted upon.29
29. Param Hans Yadav v. State of Bihar, (1987) 2 S.C.C. 197 at 201.
IV Constitutional reality
This reliance on such weak evidence to presume guilt has the effect of shifti
in an impermissible manner the 'burden of persuasion'37 on to the accused
prove his innocence, it may be noted that the presumption under sections 21
(d), TADA 1987 becomes operative in case of section 3, TADA 1987 wh
'intent' is the most essential element of the offence as defined. The presump
clearly mandates that once the fact that an extra-judicial confession is mad
proved, the presumption of guilt is raised. If the accused fails to rebut th
presumption of guilt, logically conviction would result. The question theref
arises that would the prosecution then have proved all the essential ingredients o
the offence as defined, especially intent ?
This 'burden relieving' of the prosecution as regards the proof of the essenti
elements of the crime beyond reasonable doubt, has been expressly held un
stitutional for violating 'due process' (the equivalent of fair trial in India). It
observed :
The requirement of proof beyond a reasonable doubt has its vital role in
our criminal procedure for cogent reasons ... There is always in litigation
a margin of error, representing error in fact finding, which both parties
must take into account. Where one party has at Stake an interest of
35. Every presumption has a fact proved and a fact presumed from this proved fact. See, Vikramjit
Reen, supra note 16.
36. Tot v. United States, 87 L.Ed. 1519 at 1524.
37. The Supreme Court of India tends to use the terms 'burden of proof and 'onus of proof
interchangeably. See, Vijayee Singh v. State of UP, (1990) 3 S.C.C. 190 at 204.
Not only does the provision under section 21 of TADA (evidentiary pre
tion) take away the court's discretion and essential truth-finding funct
weigh the probative value of these confessions to reach a inference of gu
raising the probative force of these kinds of confessions to a uniform st
level (of complete admission of guilt), but also relieves the prosecution
burden to prove every essential element to constitute the offence. This
causing immense prejudice, and consequently the presumption is hit by ar
for arbitrariness and by article 21 as well, for denying a right to a fair trial. I
be carefully noted that the punishment for the offences for which guilt is pre
can extend to death.
Therefore presumptive confessions as they stand today are clearly unconsti-
tutional and need to be removed from the statute book. A step in the right direction
was taken when sections 21(c) and ( d) of the Terrorist and Disruptive Activities
(Prevention) Act 1987 were repealed.
Burden-sharing between prosecution and defence (accused) must be fair and
should have a reasonable nexus with constitutional standards. It may be that
Parliament when faced with increasingly heinous forms of crime is within its
legislative competence to resort to the presumptive devices of evidence law to
shift some burden onto the accused but it would not justify the shift of all,, and
particularly the substantial burden relating to the essential elements of the crime,
against constitutional mandates and time tested traditions of criminal law.39
The experience of a first incorporation of 'unconstitutional' presumptions
into the TADA Act 1987 and their subsequent repeal after six years by the
legislature makes out a strong case for preview 40 of such legislations before
enactment. This kind of a belated dawn of wisdom coupled with a presumption of
constitutionality 41 in the meantime in favour of suspect legislation causes execu-
tive action to proceed apace in an unbridled manner accentuating the prejudice
caused to numerous accused until the legislature responds to the manifest misuses
as shown for over six years by the experience of working the TADA Act.
Therefore, the repeal of presumptive confessions as they were enacted was
constitutionally mandated. In retrospect, these kind of presumptions should have
38. In Re Winship, 25 L.Ed. 2d 368 at 375 (1970). (References omitted). (Emphasis added).
39. See, Ibid. Fundamental fairness is implicit in the Indian Constitution.
40. See, Karl Loewenstein, Political Power and the Government Process 127 (2nd ed. 1965). Also
see, supra note 10.
41. Charanjit Lai Choudharyy. Union of India, A.I.R. 1951 S.C.41 at 45 (per Fazl Ali J.); Middleton
v. Texas Power and Light Company , 248 U.S. 152 at 157, relied on.
V Alternatives
42. Draftsmen must have a greater role in formation of legislation and must carefully scru
each piece of legislation so that it is a 'reasonable law, not any enacted piece', ( Maneka Ga
Union of India, supra, note 14 at 338) (Empasis added). Also see, P.M. Bakshi, An Introduc
Legislative Drafting 63 (4th ed. 1972).
43. See, Kartar Singh v. State of Punjab , Supra note 6 at 633-634. For the contemporary re
of TADA, see, Vikramjit Reen, "Supreme Court and Terrorism", E.P.W. Vol. XXIX No. 40
44. See, S.P. Sathe, "Access to Legal Education in India", in R. Dhawan et. al. (ed.), Ac
Legal Education and the Legal Profession (1989); James C.N. Paul et.al., "Lawyers, Legal Pr
sions, Modernisation and Development", in R. Luckham et.al. (ed.), Studies of Law in Social
and Development - Lawyers in the Third World : Comparative and Development Perspective
(a) ...
(b) ...
(c) that a confession has been made by a co-accused that the accused h
committed the offence; or
(d) that the accused had made a confession of the offence to any pers
other than a police officer,
the Designated Court may, presume, unless the contrary is proved, tha
the accused had committed such offence.
Provided that the Designated Court shall not so presume until, the
prosecution further proves -
(z) Presence of the accused at the site of offence, and some act or omission
on the part of the accused towards the commission of the offence before
or at the time of the occurrence in question, or the prosecution proves -
(/'/') An attempt to commit, or cause the offence to be committed and in such
attempt, any act towards the commission of the offence.
Provided further that the Designated Court shall not record an order of
conviction until it is satisfied-
(i) about the admissibility and reliability under law relating to evidence of
any confession; and
(ii) that in the case of any confession by any co-accused, the provisions of
Section 30 of the Indian Evidence Act 1872 are complied with ; and,
(iii) where any offence requires proof of a fact of existence of a culpable
mental state, that the prosecution has proved it.
Explanation I : In this section, " culpable mental state " includes inten-
tion, motive, conscious possession of prohibited arms, substances or any
other articles, knowledge of a relevant fact and belief in, or reason to
believe in, a relevant fact.
(JA) For purposes of this section, a fact or confession is said to be proved or
disproved only when the Court believes it to exist-
Vikramjit Reen *