ends of justice, the law shifts this burden to the accused/defendant. In particular, when
the accused/defendant has disproportionate degree of power over the claimant, the law
may resort to this burden shifting.87 Following this trend, a law may be passed that when
a fatal or grave injury would occur to a child domestic worker living in the household of
the employer and no reasonable explanation of the injury or fatality can be found, the
burden of proving that the injury has not occurred due to any action/inaction/negligence
of the employer or anyone else in the employer’s household would fall on the employer.
This type of provision should be helpful because often a child victim of
torture/negligence would be the only one to speak for her/him and all the others who may
be in a position to give testimony before the court would be associated with the employer.
In case of death of the worker, even the lone victim’s ability to give evidence would not
be there. Hence, if the child has to prove her/his case against the employer, in absence of
a burden shifting rule, she/he may fail to prove the case. One may contend that often
there would be many persons living in a single household and this law may unduly harass
the employer for the guilt of others. Such a contention can be allayed by noting that
burden shifting is a mere procedural rule and does not amount to conclusive evidence.
Again, even if the employer is not personally responsible for action of others in her/his
household, when the employer would know that the maltreatment of a child domestic
worker would potentially expose her/him to criminal liability, there would be much more
care on the part of the employer about the protection of the child.
Unless poor families can be incentivised to send their children to school,88 it is
difficult to see that laws and policies would succeed in encouraging them to send their
87
For an example of such burden shifting in the context of civil matters, see 16(3) Contract Act, 1872 [Act
No. IX of 1872] which reads ‘Where a person who is in a position to dominate the will of another, enters
into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be
unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon
the person in a position to dominate the will of the other’.
88
In this regard, initiatives such as providing free books to all school going children or free education for
female children, small stipends for school going female children, and food ration to a section of the school
going children are laudable but would not be enough for extremely poor families. The limitation of these
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