11 June 2012

Section 114A Evidence Act

The controversial new amendment to the Evidence Act i.e. Evidence (Amendment)(No. 2) Act 2012 which recently took its effect on 1st June 2012 provides as follow:

Presumption of fact in publication

114A. (1) A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved.

(2) A person who is registered with a network service provider as a subscriber of a network service on which any publication originates from is presumed to be the person who published or re-published the publication unless the contrary is proved.

(3) Any person who has in his custody or control any computer on which any publication originates from is presumed to have published or re-published the content of the publication unless the contrary is proved.

The full version of the Act can be seen here.

If we look into the Evidence Act, we could see that Section 114A is not actually the one and only of its kind. It took its part within a lot other similar sections which deal with presumption. For instance, you could see in Sections 79-90, 112 and 113.
The mother of all sections, as far as presumption is concerned is S. 4 of the Evidence Act which provides 3 kinds of presumption. Firstly, presumption of fact which is discretionary in nature i.e. it is up to the judge to consider whether such fact exist or not. This kind of presumption can be illustrated by S. 90 which provides that the court may presume an ancient document (20 years or more) as genuine.

Secondly, inconclusive presumption of law which is mandatory in nature but rebuttable. It means that the court has no choice but to presume the matter to exist but the presumption can be rebutted. This can be seen in S. 112 which provides that a child is consider as legitimate if he was born within the continuance of valid marriage unless it can be proof that there is no access.

Thirdly, conclusive presumption of law which in mandatory in nature and cannot be rebutted. Tt means that the court has no choice but to presume the matter as exist and the existence of such matter cannot be disputed. This can be seen in S. 113 which provides conclusive presumption that a boy below the age of 13 cannot commit rape.  

The most important feature of presumption is that it shifts the burden of proof to the opponent party although the utmost principle of evidence is that the burden of proof lies on he who alleges. The general rule is that when the prosecutor conduct a prosecution, he must prove beyond reasonable doubt that the accused person is guilty of the offence charged against him because the original presumption is that a person is innocent until proven guilty.

Coming back to S. 114A, it falls under the second category of presumption i.e. inconclusive presumption of law. S. 114A makes easy the job of the prosecutor because the prosecutor does not have to prove his case beyond reasonable doubt because the burden is shifted to the accused person to prove his innocent.

S. 114A(1) generally provides that a person who owns a website, blog, social network, etc is presumed to be responsible to whatever matter (writing, picture, sound, video, widget, etc) which appear on his website regardless whether he himself publishes it or he take it from other website and re-publishes it or other persons e.g. visitors publish it on his website. 

This means that, if for example a seditious comment is made by one of the visitors of X's website, X can be prosecuted for publishing a seditious writing and he is presumed as guilty (because he is presumed to have published it) unless he could prove to the contrary.

Moreover, S. 114A(2) provides beyond than that in the sense that if a person, Y subscribes to a broadband service and he did not secure his wifi network and other person connect to the internet through Y's broadband and that person post something to the internet which is contrary to law, Y can be prosecuted and be held guilty unless he could prove that other person had use his broadband to post those illegal materials.

Furthermore, S. 114A(3) provides that if a person, Z owns a computer and his friend uses his computer and publishes something contrary to law than Z can be held responsible for his friend publication, be prosecuted and held as guilty unless he can proved that he did not publish it. 

These are the reason why S. 114A is so controversial, it deviates from the established principle of law that a person is innocent until proven guilty. It can be seen as a violation of human right by having some kind of threat and restriction to the freedom of speech and expression. It does not reflect the principle of justice which should be embodied in every piece of legislation.

Even though this amendment was passed by the Parliament, I do not think that the amendment reflects the will of the people. On the other hand, it is just a wicked effort of the government to make their job easy by making the people as victim. Government should have exploit all government machinery to draft a better law. On the other hand the question is whether the Members of Parliament has really consider a law before the passed it or they just vote it blindly following direct order from their boss. Do they serve their boss or they serve the people?

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