Ei incumbit probatio qui dicit, non qui negat
. The latin maxim of criminal
innocence is a holy grail of any defence lawyer, and it is undoubtedly the
elixir of criminal jurisprudence. It means the burden of proving the alleged
crime is on the one who declares and not the one who denies.
As crimes are increasing day by day, I consider it an opportunity for the
criminal law to evolve more thoroughly and deeply and keeping in mind the
conviction rates of the courts in India, this principle of presumption of
innocence gets even more important.
There are draconian laws adopted by the
Parliament these days to curb ruthless crimes of modern day. But that should
never lead to a state of affairs when the core of criminal jurisprudence is
stripped off and the accused is left with no shield at all to defend himself, it
should never be forgotten that justice rests on anvil of equal rights and
liabilities, hence in a criminal trial both the parties have to be balanced to
meet the ends of justice.
Therefore it is rightly incorporated in the criminal
justice system that it is for the prosecution to bring out the guilt of the
accused and prove it beyond a reasonable doubt and it is never for the accused
to prove his innocence, why is it so? is dealt with in the article ahead.
History and International obligations
One can find this presumption of innocence principle by turning their clocks way
back upto the 6th century when the Roman Law was being developed, in the digest
of Justinian which provides as a general rule of evidence: Ei incumbit
probation qui dicit non qui negat
. It was introduced in Roman criminal law by
Emperor Antoninus Pius.
Apart from Roman law, it can also be seen in the Talmund- a central jewish
religious text, as it states every man is innocent until proved guilty. Hence,
the infliction of unusual rigours on the accused must be delayed until his
innocence has been successfully challenged. Thus, in the early stages of the
trial, arguments in his defence are as elaborate as with any other man on trial.
Only when his guilt has become apparent were the solicitous provisions that had
been made to protect defendants are waived.
The early developing of Islamic law also witnessed similar principles like Roman
law, Islamic law also holds the principle that the onus of proof is on the
accuser or claimant based on a hadith documented by Imam Nawawi. Suspicion
also highly condemned, this also coming from a hadith documented by Imam Nawawi,
Imam Bukhari and Imam Muslim.
After the time of Muhammad, the fourth Caliph Ali ibn Abi Thalib has also been
cited to say, Avert the prescribed punishment by rejecting doubtful evidence.
In the common law system, presumption of innocence is often expressed in the
phrase innocent until proven guilty' coined by the British barrister Sir
William Garrow, later in history this articulation of Garrow was taken by the
House of Lords in 1935 in its stellar judgement of Woolmington v.Dpp
Delivering the judgement for a unanimous court, Viscount Sankey J. made his
famous golden thread
Throughout the web of the English Criminal Law
one golden thread is always to be seen that it is the duty of the prosecution to
prove the prisoner's guilt subject to the defence of insanity and subject also
to any statutory exception. If, at the end of and on the whole of the case,
there is a reasonable doubt, created by the evidence given by either the
prosecution or the prisoner, the prosecution has not made out the case and the
prisoner is entitled to an acquittal. No matter what the charge or where the
trial, the principle that the prosecution must prove the guilt of the prisoner
is part of the common law of England and no attempt to whittle it down can be
I would not be wrong to say that India has a common law legal system whose
infrastructure bears the influence of British colonial rule. Presumption of
innocence although not explicitly mentioned, but is undoubtedly flowing in the
Indian Criminal Jurisprudence. The International realm also acknowledges this
valuable rule, one can find it engrained in Universal Declaration of Human
Everyone charged with a penal offence has the right to
be presumed innocent until proved guilty according to law in a public trial at
which he has had all guarantees necessary for his defence.
Even in the European Convention on Human Rights 1954 it is enshrined,
Everyone charged with a criminal offence shall be presumed innocent until proved
guilty according to law
Also in the International Covenant on Civil and Political
Rights 1966 it is included that Everyone charged with a criminal offence shall
have the right to be presumed innocent until proved guilty according to
law. Hence by these conventions on the human rights it is well known that
the presumption of innocence is a valuable right given to the accused in a
The need of this principle
It is trite that a crime affects the rights in rem of the people and also
affects the society at large and so it is not limited to be against an
individual but the state. Therefore, in our country the State prosecutes the
individual for the alleged crime that he committed. As one is aware about the
fact that the prosecuting agency as well as the investigating agency, both are
in the quiver of the State.
So the galaxy of intellectuals who have developed
the Indian Criminal Jurisprudence so far, have considered it reasonable enough
to provide with this shield of presumption of innocence
to the individual
charged with a criminal offence, to be able to stand and defend the might of the
State. This principle brings both the parties at an equal footing which is sine
qua non for justice to manifest.
Criminal innocence is although not found explicitly in the Constitution of India
but it is to be construed from Article 20(3) of our Constitution which states
that no person accused of any offence shall be compelled to be a witness against
himself. It is known as right against self-incrimination since compelling him to
testify would place the burden of proving innocent on accused instead on
requiring the prosecution to prove guilt.
In a criminal trial the accused is
under no obligation to prove his innocence it is the prosecution and prosecution
alone who has to prove the guilt of the accused. Sections 101 and 102 of the
Indian Evidence Act, 1872 deals with the burden of proof, it states-
Section 101 Burden of proof:
Whoever desires any Court to give judgement as to
any legal right or liability dependent on the existence of facts which he
asserts, must prove that those facts exist. When a person is bound to prove the
existence of any fact, it is said that the burden of proof lies on that person.
Section 102 On whom burden of proof lies:
The burden of proof in a suit or
proceeding lies on that person who would fail if no evidence at all were given
on either side.
By a combined reading of both the above sections it is clear that the burden of
proof is of two types: 1) To establish a case-- as given under section 101 and
2) To adduce evidence-- as given under section 102. The one in section 101 is
fixed and cannot shift contrary to that the one in section 102 keeps on shifting
on both the parties to adduce evidence. Hence it is also known as onus of proof.
It is pertinent to note unless the burden of proof under section 101 is
discharged by the prosecution the defence is not called upon.
Further in Data ram's case the Supreme Court held, A fundamental postulate
of criminal jurisprudence is the presumption of innocence
The real conflict
My limited understanding of criminal law and constitutional law takes me to the
view that presumption of innocence is more deeply embedded in the Indian
Criminal law, by keeping in mind the Woolmington judgement
, in which it was
Throughout the web of the English Criminal Law one golden thread is
always to be seen that it is the duty of the prosecution to prove the prisoner's
guilt subject to the defence of insanity and subject also to any statutory
It is clear from a reading that there are two exceptions to the rue
under the English criminal law, they are:
- Defence of insanity;
- Statutory provisions, if any.
But, I would now like to draw the readers' attention towards the fact that India
is not a democracy like the United Kingdom is. The U.K is a democratic country
but India is a democratic republic. The major difference between the two
expressions lies here. In the UK, the Parliament is supreme and no Court of law
can have the will to test the legislative actions on the lines of British
Constitution. Jean-Loius de Lolme once said British Parliament can do
everything and anything but make woman a man and man a woman
this explains the
supremacy of the parliament.
But contrary to this, in India the Rule of law is
seen at the top and only the Constitution of India is supreme and as the words
democratic republic' found in the preamble is quite indicative of the fact that
the laws made by the Indian Parliament should be in consonance of the
Constitution and subject to Judicial review. Hence in India, the courts have
full authority and somewhat full will to strike down any legislation which is
unconstitutional. So far as the right to presumption is concerned, it is a part
of the constitutional scheme and any attempt to abrogate that right shouldn't be
tolerated. For the fact that a reverse burden clause sees an individual as
presumptive criminal, hence crushes Article 21 of the Constitution which gives
him the right to live with dignity.
Without the presumption of innocence it
would not be a fair trial by any means as mandated under Article 21 and time and
again the Apex court has held that a fair trial is a fundamental right under
Article 21, for instance in the landmark case of Mohanlal
 a three judge bench
ruled that a fair trial is a fundamental right under Article 21.
keeping the stellar verdict in Maneka Gandhi's case
 the wording procedure
established by law' under Art 21 is to be seen as the procedure should not be
arbitrary, unfair or unreasonable, so any enactment which takes away this
fundamental principle and the valuable right of the accused to be presumed
innocent until proven guilty, is violative of personal liberty and attacking the
rights of accused by blowing it into smithereens.
What can be done to curb the crimes then?
Presumptions are not alien to law, in order to curb the violent crimes and make
it a bit easy for the prosecution to prove its case the legislature has
incorporated with some reverse burden clauses, due to which the onus of proof is
shifted on to the accused once the prosecution discharges the initial burden of
proof. Now it is for the accused to prove his innocence and disprove the
presumption that the courts have taken. It may be noted that most of criminals
in our country are the unprivileged, having a flamboyant and expensive defence
counsel which can turn the tables in cross examination is very hard to find,
even a common man finds it difficult to engage such an expensive lawyer.
to that dilemma further the accused have to disproof the presumption that the
court has taken, rather I would say the legislature has compelled the courts to
take by making it a legal presumption. It is a fact that there are mainly two
kinds of presumptions known to law, i.e presumption of fact and presumption of
law. Presumption of fact is a bit less dangerous for the accused as the courts
have full discretion as to whether to presume or not, pertaining to the facts of
On the other hand the legal presumptions which are also known as
artificial presumptions leave no scope for the courts to have discretion, the
courts are bound to presume when certain things are proved by the prosecution
and hence the onus shifts on the accused, my contention is not with the reverse
burdens, rather with the fact that court should have had discretion as to take
up a presumption or not because the merits in each case are different, hence the
courts of law are the best judge to this scenario and not the legislature which
has imposed a compulsory presumption.
We shall have a look at some presumptions under the Indian Evidence Act, 1872:
Presumption as to abetment of suicide by a married woman.—When the
question is whether the commission of suicide by a woman had been abetted by her
husband or any relative of her husband and it is shown that she had committed
suicide within a period of seven years from the date of her marriage and that
her husband or such relative of her husband had subjected her to cruelty, the
Court may presume, having regard to all the other circumstances of the case,
that such suicide had been abetted by her husband or by such relative of her
The use of word may
leaves it on to the discretion of the court whether to
presume or not.
Presumption as to dowry death.—When the question is whether a
person has committed the dowry death of a woman and it is shown that soon before
her death such woman has been subjected by such person to cruelty or harassment
for, or in connection with, any demand for dowry, the Court shall presume that
such person had caused the dowry death.
The wordings of the legislature here are shown' and not proved
which the apex
court rightly declared that they are to be interpreted as proved' in a recent
declaration of Shersingh pratapa. Here there is a legal presumption
therefore the courts have no other option but to presume.
But again it is of
immense importance to note that all these presumptions arise on proving certain
facts by the prosecution, these facts are the actus reus of the crime and then
it is presumed that there was mens rea on the part of the accused.
that is common in these reverse onus clauses is the actus reus which is proved
initially by the prosecution is itself a crime and is illegal, for example in
section 113B the fact that woman was subjected to cruelty is to be proved, hence
it is by itself an illegal act, further by comparing the reverse onus in the
Narcotic Drugs and Psychotropic Substances Act, 1985 sections 35 and 54 reverses
the burden of proof on to the accused regarding the culpable mental state, but
firstly the prosecution has to prove the actus reus
i.e the possession of such
contraband with the accused, which again is an illegal act and the contraband is
per say banned substance. So now it is clear that without the actus reus being
proved by the prosecution and that too it being illegal at the first instance,
the reversal of burden of proof should not be done.
Now in the light of this reasoning a question comes up while reading section
114A of the Evidence Act. Section 114A is again a presumption of law, a
compulsory one, it states-
Presumption as to absence of consent in certain prosecutions for
rape- In a prosecution for rape under clause (a) or clause (b) or clause (c) or
clause (d) or clause (e) or clause (g) of sub-section (2) of section 376 of the
Indian Penal Code, (45 of 1860), where sexual intercourse by the accused is
proved and the question is whether it was without the consent of the woman
alleged to have been raped and she states in her evidence before the Court that
she did not consent, the Court shall presume that she did not consent.
It mandates that where the sexual intercourse by the accused is proved and the
prosecutrix states before the court in her evidence that she didn't consented,
then the onus shifts on the accused to disprove the legal presumption raised.
Now here it may be noted the actus reus is the sexual intercourse and the mental
element is was it with or without consent. By observing carefully one can derive
a conclusion that only the sexual act which is the actus reus here, is not
illegal per say if it involved a valid consent.
Unlike the presumptions earlier
the act itself is not illegal if both the parties are major and if it is
consensual, so once the act is proved or even admitted by both the individuals
then the burden is on the accused to prove that there was a consent, which is
next to impossible for a poor accused and hence entailing the conviction in the
end. Let us take a hypothetical scenario for better understanding of the point
raised here, suppose an employer and employee got infatuated and indulged in a
sexual act with consensus, later by any reason they separated and the employee
alleged a charge of rape against the employer and as per the law, once the
sexual intercourse between the two is proved, which in fact did happened and
that too with consent, now it is for the employer to establish his innocence and
disprove the presumption by adducing enough evidence that the prosecutrix had in
fact consented and on failing to do so he shall be convicted of this alleged
crime of rape. Law is indeed a fact and Justice is abstract, it is a tool to get
to justice, but sometimes it does fails to get justice like in the above
The wise route to balance the evil of rape and the rights of accused can be a
presumption of fact and not on law in such crimes. It should be left to the
wisdom of courts in such a complex situation and it should be decided by the
courts whether to presume or not keeping in mind the factual basis and by diving
deep into the merits of each case.
As there is a presumption of law, it straight
away takes the presumption of innocence of the accused and the courts are
helpless because of the legal presumption, it is to be borne in mind that it is
the courts who are supposed to protect the rights of individuals and it should
not be bound by such obligatory presumptions of law and it should be left to the
wit of courts, whether to presume or not. Courts can and should read down
shall' as may' in suitable cases which is again left on to the courts to
decide and not the legislature.
Presumption of innocence has today been watered down on the pretext of speedy
justice but one should remember justice hurried is definitely justice buried
Indian criminal law is on the path of deterrence and thus enacting such laws
which constantly overlook the rights of the accused should be a worrisome practise. It should never be forgotten that in a criminal trial the accused has
to establish his innocence and not prove it and it is sufficient if he raises a
doubt as to his guilt.
The courts have full authority, rather I would say a constitutional duty to
strike off laws which scratches the fundamentals and the basic structure of our
Constitution and the courts get this power from the Constitution itself, here
lies the beauty of the majestic document the Indian Constitution and the Maneka
Gandhi pronouncement which entirely opened the doors of judicial review of laws,
which was already intended by the Constituent Assembly and that the law has to
be tested by the courts that whether it follows the substantive due process
It is now for the courts and courts alone to take a robust standing in achieving
and reiterating the elixir of Indian Criminal Jurisprudence i.e presumption of
as a fundamental human right and include it more explicitly within
the contours of Article 21. The Supreme Court of India is not just a court of
law, but also a court of equity and hence the constitutional courts are to do
justice and not just to follow the legislation like the English courts, as it is
stated by the apex court, Justice is a virtue which transcends all barriers
and the rules or procedures and the technicalities of law cannot stand in the
way of administration of justice. Law has to bend before Justice.
- Woolmington v. Director of public prosecutions  UKHL 1.
- Article 11(1) of UDHR 1948.
- Article 6(2) of ECHR 1954.
- Article 14(2) of ICCPR 1966.
- Rangammal v. kuppuswami AIR 2011 SC 234.
- Data Ram v. State of U.P (2018) 3 SCC 22
- Woolmington v. Director of public prosecutions  UKHL 1.
- Mohan lal v. State of Punjab AIR 2018 SC 3853.
- Maneka Gandhi v. Union of India 1978 AIR 597.
- Shersingh Partapa v. State of Haryana AIR 2015 SC 980.