"A people eager to prejudge guilt as opposed to innocence, are a people
ripe and ready to become a despot's "willing executioners".-- A.E. Samaan
In the realm of law, two fundamental concepts that lie at the very core of a
fair and just legal system are the presumption of innocence and the burden of
proof. These principles form the bedrock of the Indian legal system, upholding
the rights of individuals and ensuring that justice is meted out in a balanced
and equitable manner. As a legal researcher, desirous to inform the reader of
these concepts, I have written this article which aims to shed light on the
significance and interplay of these concepts within the Indian legal framework.
First and foremost, the presumption of innocence stands as a cornerstone
principle in any democratic society. It unequivocally asserts that an individual
accused of a crime is presumed innocent until proven guilty by a court of law.
This presumption emphasizes that the burden of establishing guilt rests solely
on the prosecution, rather than the accused. By shifting the onus onto the state
or the accuser, the presumption of innocence guards against wrongful convictions
and serves as a vital safeguard to protect the rights and dignity of the
Parallel to the presumption of innocence, the burden of proof assumes great
importance within the Indian legal system. The burden of proof is the
responsibility imposed on the prosecution to demonstrate, beyond a reasonable
doubt, that the accused is guilty of the alleged offense. It requires the
prosecution to present compelling evidence and legal arguments to convince the
court of the accused's culpability. This burden acts as a safeguard against
hasty or arbitrary convictions, compelling the prosecution to meet a high
threshold before depriving an individual of their liberty or imposing any form
In the Indian legal landscape, these two principles work harmoniously to ensure
fairness and protect the rights of all individuals. By placing the burden of
proof on the prosecution, the presumption of innocence fosters a climate where
the accused is shielded from baseless allegations and unfounded prejudice.
Moreover, it reinforces the notion that it is not the responsibility of the
accused to prove their innocence, but rather the duty of the state to prove
guilt beyond a reasonable doubt.
The importance of these concepts cannot be overstated, as they uphold the
principles of justice, human rights, and due process within the Indian legal
system. The presumption of innocence acts as a powerful shield, shielding
individuals from arbitrary detentions and ensuring that every accused person is
treated as innocent until proven guilty. Simultaneously, the burden of proof
acts as a safeguard, compelling the prosecution to present convincing evidence,
thereby minimizing the risk of wrongful convictions and safeguarding the
integrity of the justice system.
Presumption of innocence
The principle of the presumption of innocence has ancient origins dating back to
the 6th century. The sixth-century Digest of Justinian (22.3.2) provides, as a
general rule of evidence
Ei incumbit probatio qui dicit, non qui negat "Proof
lies on him who asserts, not on him who denies
". It is there attributed to the
second and third century jurist Julius Paulus Prudentissimus. It was introduced
in Roman criminal law by emperor Antoninus Pius.
Sir William Garrow, a renowned British barrister, is credited with coining the
phrase "presumed innocent until proven guilty," which succinctly encapsulates
the principle of presumption of innocence. Garrow firmly believed in subjecting
accusers to rigorous scrutiny in a court of law, insisting that jurors or judges
should only conclude guilt beyond a reasonable doubt. This phrase later became
known as the "golden thread" that weaves through the fabric of English criminal
law, as affirmed by the English Court of Appeal in the landmark case of
Woolmington v. Director of Public Prosecutions.
From a broader perspective, it is evident that the majority of individuals
accused of certain offenses are not inherently criminals. This sentiment is
mirrored in the words of French jurist Jean Lemoine, who stated, "item quilbet
presumitur innocens nisi probetur nocens". This phrase, too, underscores the
principle that an individual should be presumed innocent until their guilt is
proven. Furthermore, it emphasizes the necessity of providing certain
protections to the accused or defendant, including prior notice of the
accusations levied against them and the right to obtain legal counsel.
The presumption of innocence is fundamental to Islamic law where the principle
that the onus of proof is on the accuser or claimant is strongly held, based on
a hadith documented by Imam Nawawi. "Suspicion" is also highly condemned, this
also from a hadith documented by Imam Nawawias w ell as Imam Bukhari and Imam
After the time of Muhammad, the fourth Caliph Ali ibn Abi Talib has also been
cited to say, "Avert the prescribed punishment by rejecting doubtful evidence."
In essence, these principles resonate with the fundamental ideals of justice,
emphasizing the importance of treating individuals accused of crimes with
fairness and ensuring their rights are safeguarded. By upholding the presumption
of innocence and affording the accused certain rights and protections, legal
systems strive to maintain a delicate balance between the need for
accountability and the preservation of individual liberties.
The law presumes an accused to be innocent till his guilt is proved. As a
presumably innocent person, he is entitled to all the fundamental rights
including the right to liberty guaranteed under Article 21 of the Constitution
India adopted the presumption of innocence rule as a part of its legal system
due to its inheritance of the common law system from British colonialism.
Although not explicitly mentioned, this principle is deeply embedded in the
criminal jurisprudence of the country. Article 20(3) of the Constitution of
India can be interpreted as supporting this presumption by guaranteeing the
right against self-incrimination. This right ensures that an accused person
cannot be compelled to testify against themselves, thereby placing the burden of
proof on the prosecution rather than the accused.
The importance of the presumption of innocence in India is grounded in the
belief that a crime not only affects the victim but also has broader societal
implications. In such cases, the prosecution represents the state or the nation,
as various state agencies are duty-bound to present evidence against the accused
and prove their guilt beyond a reasonable doubt. The burden of proof in such
cases is defined in the Indian Evidence Act of 1872 under sections 101 and 102.
Section 101 states that anyone seeking a judgment from a court based on certain
facts must prove those facts beyond a reasonable doubt.
Moreover, when an individual is obligated to prove certain facts, it is said
that the burden of proof rests upon that person. Section 102 of the Indian
Evidence Act explicitly states that the burden of proof lies on the party who
would fail in the case if no evidence is produced. These two sections highlight
two types of burdens of proof: one to establish a case (Section 101), which
remains with the prosecution and does not shift, and the other to present
evidence (Section 102), which can shift depending on the stage of the case and
the parties involved.
The presumption of innocence principle aligns more strongly with the first type
of burden of proof, as the accused is considered innocent until the prosecution
establishes a basis for their guilt, which must be proven in a court of law.
However, in the second type of burden of proof, the accused is not obliged to
produce evidence in their favor, although they are permitted to do so, and their
failure to present evidence cannot be held against them.
The absence of a presumption of innocence would contradict the principles of a
fair trial, as enshrined in Article 21 of the Indian Constitution, which
guarantees the right to life and personal liberty. A reverse burden of proof
would infringe upon this right and undermine the dignity of the accused.
The Indian Evidence Act encompasses various situations where the burden of proof
is required, and in each case, the burden does not fall on the person accused of
a particular act, aligning with the presumption of innocence principle. It is
the responsibility of the party asserting the facts to prove them.
The right of an accused to be presumed as innocent is a fundamental right in
many countries, and is included in many documents of legal importance. Here is
the concept ingrained into the International legal codes, further emphasising
The Universal Declaration of Human Rights, article 11, states: "Everyone charged
with a penal offence has the right to be presumed innocent until proven guilty
according to law in a public trial at which he has had all the guarantees
necessary for his defense."
The International Covenant on Civil and Political Rights, art. 14, paragraph 2
states that "Everyone charged with a criminal offence shall have the right to be
presumed innocent until proved guilty according to law." The presumption of
innocence is also expressly regulated in Art. 66 of the Rome Statute of the
International Criminal Court, according to which "Everyone shall be presumed
innocent until proved guilty before the Court in accordance with the applicable
The Convention for the Protection of Human Rights and Fundamental Freedoms of
the Council of Europe says (art. 6.2): "Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law." This
convention has been adopted by treaty and is binding on all Council of Europe
members. Currently (and in any foreseeable expansion of the EU) every country
member of the European Union is also member to the Council of Europe, so this
stands for EU members as a matter of course. Nevertheless, this assertion is
iterated verbatim in Article 48 of the Charter of Fundamental Rights of the
Articles 8 (1) and 8 (2) (right to a fair trial), in conjunction with Article 1
(1) (obligation to respect and ensure rights without discrimination), of the
American Convention on Human Rights make the Inter-American Court to stress that
"the presumption of innocence is a guiding principle in criminal trials and a
foundational standard for the assessment of the evidence. Such assessment must
be rational, objective, and impartial in order to disprove the presumption of
innocence and generate certainty about criminal responsibility.
The Court reiterated that, in criminal proceedings, the State bears the burden
of proof. The accused is not obligated to affirmatively prove his innocence or
to provide exculpatory evidence. However, to provide counterevidence or
exculpatory evidence is a right that the defence may exercise in order to rebut
the charges, which in turn the accusing party bears the burden of disproving".
In the European Union, in addition to the Charter of Fundamental Rights,
presumption of innocence is also protected through Directive (EU) 2016/343 of
the European Parliament and of the Council of the 9th March 2016 on the
strengthening of certain aspects of the presumption of innocence and of the
right to bepresent at the trial in criminal proceedings (Directive). Article 3
states that: Member States shall ensure that suspects and accused persons are
presumed innocent until proved guilty according to law. The goal of the
directive is stated in article 1. The scope is to lay down common minimum rules
concerning:(a) certain aspects of the presumption of innocence in criminal
proceedings;(b) the right to be present at the trial in criminal proceedings.
Relevant Case Laws:
Dataram Singh v. State of U.P., (2018) 3 SCC 22
"A fundamental postulate of criminal jurisprudence is the presumption of
innocence, meaning thereby that a person is believed to be innocent until found
guilty. However, there are instances in our criminal law where a reverse onus
has been placed on an accused with regard to some specific offences but that is
another matter and does not detract from the fundamental postulate in respect of
Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1
"In the Indian criminal jurisprudence, the accused is placed in a somewhat
advantageous position than under different jurisprudence of some of the
countries in the world. The criminal justice administration system in India
places human rights and dignity for human life at a much higher pedestal. In our
jurisprudence an accused is presumed to be innocent till proved guilty, the
alleged accused is entitled to fairness and true investigation and fair trial
and the prosecution is expected to play balanced role in the trial of a crime.
The investigation should be judicious, fair, transparent and expeditious to
ensure compliance with the basic rule of law. These are the fundamental canons
of our criminal jurisprudence and they are quite in conformity with the
constitutional mandate contained in Articles 20 and 21 of the Constitution of
Narendra Singh v. State of M.P., (2004) 10 SCC 699
"It is also well known that even in a case where a plea of alibi is raised, the
burden of proof remains on the prosecution. Presumption of innocence is a human
right. Such presumption gets stronger when a judgment of acquittal is passed."
Concept of Burden of proof
In a legal dispute, one party is responsible for shouldering the burden of proof
to demonstrate the correctness of their claims, while the other party enjoys a
presumption of being correct. The burden of proof entails the obligation of a
party to present evidence that establishes the truth of the facts necessary to
satisfy all the required legal elements of the dispute.
The party who initiates the claim in a dispute typically carries the burden of
proof. This concept is often encapsulated in the Latin maxim semper necessitas
probandi incumbit ei qui agit, which translates to "the necessity of proof
always lies with the person who lays charges."In civil cases, for instance, the
burden of proof rests on the plaintiff to demonstrate that the defendant's
actions or inactions resulted in harm to the plaintiff, while the defendant
bears the burden of proving any affirmative defenses. In criminal cases, it is
the prosecutor who bears the burden of proof, and the defendant is presumed
innocent until proven guilty. If the party with the burden of proof fails to
meet this obligation and establish their case, the claim will be dismissed.
The term "burden of proof" refers to the duty of a party to provide evidence
supporting a disputed assertion or charge. This burden encompasses two aspects:
the burden of production, which involves presenting enough evidence on an issue
for the trier-of-fact to decide, and the burden of persuasion, which relates to
the standard of proof required, such as "preponderance of the evidence."
The "burden of persuasion" or "risk of non-persuasion" is an ongoing obligation
that remains with a single party throughout the court proceedings. Once this
burden has been completely fulfilled to the satisfaction of the trier of fact,
the party carrying the burden will succeed in their claim. For instance, in a
criminal case, the presumption of innocence places a legal burden on the
prosecution to prove all elements of the offense (typically beyond a reasonable
doubt) and to disprove all defenses except affirmative defenses, for which the
prosecution is not constitutionally required to prove the non-existence of such
It is important not to confuse the burden of persuasion with the evidential
burden, burden of production, or duty of producing evidence, as these are
separate concepts that may shift between parties during the hearing or trial.
The evidential burden pertains to the obligation of a party to present
sufficient evidence to properly raise an issue in court.
The concept of burden of proof is outlined in Chapter VII of the Indian Evidence
Burden of proof in Civil Cases:
In civil proceedings, the burden of proof rests on the plaintiff, who initiates
the case by presenting the facts and legal reasons. If the plaintiff fails to
provide sufficient evidence or convince the court of the existence or truth of
the facts, even if the defendant does not present a defense, the defendant will
win the case. Therefore, defendants in civil cases often focus on weakening the
plaintiff's case rather than presenting their own positive evidence.
Burden of proof in Criminal Cases:
In general, the fundamental principle is that a person is considered innocent
until proven guilty. As a result, the burden of proof primarily lies on the
prosecution to establish that the accused has committed a crime. The burden of
proof may shift if the accused raises one of the exceptions to the crime or
makes a specific claim. In such cases, the burden of proof shifts to the accused
to prove their exception or claim. The prosecution is required to prove their
case beyond a reasonable doubt, which places a heavy burden of proof on them and
provides an advantage to the accused or defendant.
Relevant Case Laws:
K.Veeraswamy v. Union of India and others [(1991)3 SCC 655].
"No matter what the charge or where the trial, the principle that the
prosecution must prove the guilt of the prisoner is a part of the common law of
England and no attempt to whittle it down can be entertained."
V.D. Jhingam v. State of Utter Pradesh, AIR 1966 SC 1762.
"The cardinal rule of our criminal jurisprudence that the burden to prove the
guilt of the accused would always lie upon the prosecution to prove all the
facts constituting the offence beyond reasonable doubt. If there is a reasonable
doubt, the accused is entitled to the benefit of reasonable doubt."
State of West Bengal v. Mir Mohammed Omar and Others, [2000(8) SCC 382]
"The concept of reverse burden has been adopted in many statues like Negotiable
Instrument Act , Prevention and Corruption Act ,Narcotic drugs and Psychotropic
Substance Act and Unlawful Activities (Prevention ) Act ,1967 etc. .In Indian
Evidence Act, section 113A (for section 306 IPC) and section 113B (304B IPC)
places reverse burden on accused."
Sanjeev Kumar v. State of Punjab (2009)16 SCC 487
"We cannot lose the sight principle that while the prosecution has to prove its
case beyond reasonable doubt, the dense of the accused has to be tested on the
touchstone of probability. The burden of proof lies on the prospection in all
criminal trials, though the onus may shift to the accused in given
circumstances, and if so provided by law. Therefore, the evidence has to be
appreciated to find out whether the defence set up by appellant is probable and
Rangammal v. Kuppuswami, (AIR 2011 SC 2344)
"It is well established dictum of the Evidence Act that misplacing burden of
proof would vitiate the judgment." Section 43E of the Unlawful Activities
(Prevention) Act.1967 also raises similar presumption of the offence under
Section 15 of the Act. Section 15 of the Act pertains to the pertaining of
In conclusion, the presumption of innocence and the burden of proof represent
the foundations upon which the Indian legal system operates. These principles
play a crucial role in ensuring fairness, protecting the rights of the accused,
and upholding the rule of law. By recognizing the significance of these
concepts, we strive to maintain a just society that respects the dignity and
rights of every individual who finds themselves entangled in the complex web of
the legal system.
In conclusion, the principles of the presumption of innocence and burden of
proof play vital roles in the legal systems around the world, including the
Indian legal system. These principles ensure fairness, protect individual
rights, and uphold the integrity of the justice system.
The presumption of innocence, rooted in the idea that an accused person is
deemed innocent until proven guilty, serves as a fundamental safeguard against
wrongful convictions and abuses of power. It places the burden of proof on the
prosecution, requiring them to present sufficient evidence to establish guilt
beyond a reasonable doubt. This principle reflects the inherent value placed on
protecting individual rights and ensuring a fair trial.
Similarly, the burden of proof holds significant importance in legal
proceedings. It assigns the responsibility to the party making the claim or
accusation to provide evidence that substantiates their assertions. In civil
cases, the burden rests on the plaintiff, while in criminal cases, it primarily
lies with the prosecution. Shifting the burden of proof to the accused in
certain circumstances ensures that claims or defenses are adequately supported
Together, the presumption of innocence and burden of proof form the pillars of a
just legal system. They safeguard the rights of individuals, promote the pursuit
of truth, and maintain a balance between the interests of the accused and the
pursuit of justice. By upholding these principles, the legal system fosters
confidence in its outcomes and ensures that only those proven guilty bear the
consequences of their actions.
In the Indian legal context, while the presumption of innocence is not
explicitly mentioned, its existence is implied through constitutional provisions
such as the right against self-incrimination and the right to liberty. The
burden of proof finds its basis in the Indian Evidence Act, which defines the
obligations of parties to establish their claims or defenses.
Ultimately, the presumption of innocence and burden of proof serve as
cornerstones of a fair and just legal system, affirming the principle that no
person should be deemed guilty without sufficient evidence. These principles not
only protect the rights of individuals but also maintain public trust in the
administration of justice, ensuring that the truth prevails and the innocent are
not wrongfully condemned.