Presumption of innocence and reverse burden of proof
Image source -

This article is written by Tanisha Prashant, a student of Institute of law, Nirma university. 


In the current times, when India is witnessing a violent upsurge in crimes, and specifically brutal crimes like rape, the country has felt the need to establish a more deterrent approach towards justice delivery. But does justice comes at the cost of ignorance towards one’s fundamental human rights? 

The lawmakers have recently introduced provisions which put the accused on the pedestal where to get free he has to prove his innocence rather than the prosecution discharging the proof. However, there are certain principles in the criminal justice system that can never be overlooked. If neglected they will only lead to miscarriage of justice. Presumption of innocence is one such principle. 

Download Now

This article examines statutory provisions of the burden of proof and its reversals in criminal offences, and analyses the justifications for such provisions in light of the importance of the presumption of innocence. Also pertinent is the emergence and strong need for introducing human rights in criminal trials. This article argues that international human rights principles are especially pertinent to the interpretation of reverse burdens, and naturally require stricter standards to be fulfilled before a reverse burden can be upheld. If India is to establish human rights based approach with respect to criminal justice, addressing the current arbitrariness of statutory reversal of the onus of proof would be a crucial step forward in that direction. 

What is Presumption of innocence?

Justice is never alien to rights. Justice rests on the anvil of equal rights and liabilities, therefore, in criminal trial rights of both the parties have to be balanced to meet the ends of justice. Being negligent or biased towards any ones right will lead to miscarriage of justice. A defendant/convict/accused has the right to be presumed innocent until proven guilty and this is a central tenet of our criminal justice system. Though not specifically enshrined in the criminal code of India, but there are provisions which work on this principle. Section 101 and 102 of the Indian evidence act, which assert that any person approaching the court to give its judgment on any legal right or liability must prove the existence of facts that he asserts. Thus, the burden of proving fact always lies upon the person who asserts it. But there are certain provisions and statutory regulations which undermine this principle and place the burden of proving his/her innocence on the accused rather than on the prosecution. The common law maxim, “ei incumbit probatio qui dicit, non qui negat “(the burden of proof is on the one who declares, not on one who denies) was confirmed by the Supreme Court, Burden of proof lies on the party asserting it and never on the party denying it. 

The presumption of innocence is the principle which asserts that an individual is always considered “innocent until proven guilty”. This was first and foremost laid by jurist Blackstone, when he said that it is better to let 10 guilty escape than let a single one innocent suffer. The House of Lords in the landmark case of Woolmington vs Dpp held that presumption of innocence is the golden thread of criminal law and can in no way be jeopardized. The same was vehemently followed by the Indian Supreme Court and is a well established principle of the Indian jurisprudence. The presumption of innocence does not have the same effect as other presumptions in criminal law. While other presumptions generally deal with the alleviation of proof, the presumption of innocence does not. There is no burden per se that is lifted from the defendant. Thus the presumption of innocence does not have the effect of shifting the burden of proof to the prosecution. Rather, the burden begins with the prosecution. Accordingly, the presumption of innocence is akin to maintenance of status quo of the defendant

In the case of Noor Aga Khan vs. state of Punjab it was held by the apex court that, though not explicitly mentioned in the constitution, presumption of innocence is nevertheless a potent background to the conception of justice, in preserving confidence in enduring integrity and security of a legal system.
                Click Above

Need and importance of presumption of innocence

In the current times we witness that convictions are escaping the very fundamentals of human rights principles by convicting persons on mere suspicion rather than proof. The criminal justice system of any country is the reflection of how the society functions. The state through its criminal justice system has far reaching effects as it shows the liberal and democratic approach of the country while dealing with the vulnerable. In the world’s largest democracy such powers cannot be unbridled and have to be used cautiously. Presumption of innocence thus not only acts as a right but as a principle as to how the state should exercise its coercive powers. Trapping innocent individual in the rigors of criminal law is against the very principle of democracy and justice. Further the factor of resources has also been looked upon by the court, all the parties may not have equal resources and cannot prove himself or herself to be innocent while in the process. Conviction for a criminal offence generally involves the imposition of some form of punishment upon the defendant. Such sanctions inevitably encroach on fundamental rights, for example, the right to personal property (fines), the right to liberty (imprisonment), and the right to respect for private life (community sentence, imprisonment). In addition, a convicted individual is exposed to potentially severe mental atrocities which come due to the reactions of the public and physical tortures resulting from the inhumane conditions of the prison cells. 

If the State is to curtail an individual’s fundamental rights, it follows that any conviction must result from a fair trial. It supports other rights such as the right to silence and is a concomitant of the right to liberty. The presumption of innocence also plays a crucial role in balancing the superior power and means of the State against those of ordinary citizens. Trials are fact finding scenarios and not a place for errors or mishaps. Most importantly, the presumption of innocence safeguards the right of an individual not to be wrongfully convicted. The accused is being made to rebut a presumption of guilt and prove his innocence. A balance of probabilities standard does not in any way justify a reverse onus clause because the burden on the accused is ultimate implying that his failure to discharge this burden would result in his conviction. Such a procedure comes up as a highly oppressive and harsh procedure on the accused. Burden of proof in criminal law plays a major law, in the trial procedure. It helps in running a free and fair trial by keeping both the parties at the same level. Where burden of proof is on the wrong party, it will vitiate the judgement of the court and eventually lead to miscarriage of justice.

It is pertinent to note that the rules relating to burden and standard of proof in criminal trials are indispensable because they promote individual freedom and are bulwark against oppression. Reversing the burden of proof renders accused a presumptive criminal disregarding his individual liberty and dignity and thereby violating Article 21 which give right to an individual to live with dignity. Wrongful convictions strip an individual of its dignity and respect in the society.

Right to a fair trial is an umbrella of rights under which the key right being, right to presumption of innocence. Presumption of innocence provides the basis for a defendant to remain silent and enjoy the privilege against self incrimination with the right to silence is a procedural protection designed to preserve citizens for exercise of coercive state power. It is a cardinal principle of criminal jurisprudence as administered in this country that it is for the prosecution and prosecution alone to prove all the ingredients of the offence with which the accused has been charged. The accused is not bound to open his lips or to enter upon his defence unless and until the prosecution has discharged the burden which lies upon it and satisfactorily proved the guilt of the accused. 

It is furthermore put forth that fair trial would mean a trial in which bias or prejudice for or against the accused is being eliminated. Erroneous convictions defeat public interest; guilty may just be unfortunate enough to meet the high demands of standard of proof. If the courts are to already presume that the person under trial is a culprit the court will proceed on biases rather than evidences.

International obligation and standpoints 

India is expanding itself on the international front today. In such a case, the need to follow and not just follow include in its practices the fundamental principles of human rights becomes the need of the hour. We cannot stand strongly by just improving our economic standards we have to stand all the stronger while delivering human rights to our citizens.

The moral doctrine of human rights aims at identifying the fundamental prerequisites for each human being leading a minimally good life. Human rights aim to identify both the necessary negative and positive prerequisites for leading a minimally good life, such as rights against torture and rights to health care. This aspiration has been enshrined in various declarations and legal conventions issued during the past fifty years, initiated by the Universal Declaration of Human Rights (1948) and perpetuated by, most importantly, the European Convention on Human Rights (1954) and the International Covenant of Civil and Political Rights (1966). Together these three documents form the centrepiece of a moral doctrine that many consider to be capable of providing the contemporary geo-political order with what amounts to an international bill of rights. Human rightsmeans rights relating to life, liberty, equality and dignity of the individual granted by the constitution or embodied in international covenants as enforced by courts. The courts have thus given the widest possible ambit while interpreting the concept of human rights.

Presumption of innocence is a human right and cannot be thrown away in any case. Article 6 (Right to recognition before law), Article 7 (Equality before law), Article 10 (Right to a fair trial), Article 11(2) (Right to presumption of innocence) under the universal declaration of human rights, create even more grave concerns for the accused in the present case. As they are rights which are fundamental to human life not just on a national level but in an international framework. Furthermore Article 9 (Right against arbitrary trial and detention) and Article 14 (Presumption of innocence for the accused and right to a fair trial) are the concerned rights under the ICCPR. It has been established earlier that conventions which are in consonance with the constitution can be deemed to be incorporated by the state. Henceforth, that courts while adhering themselves to domestic law may also look at the international framework, to minimize the violation of rights at its best.


The effect of law has to be always looked by its effect by considering whether a law is good or bad. Presumption of innocence has today been watered down on the pretext of public interest and speedy justice. India in the wake of achieving the goal of deterrence, are making its courts constantly overlooking the rights of the accused. Special efforts are needed to make the criminal justice system more effective and by curbing the crimes of the nation, but that has to be done by keeping in mind the principles of justice and proportionality in mind. State action can never be arbitrary and has to be always in the interest of justice only. The court needs to take stronger steps in achieving and reiterating the principle of presumption of innocence as a fundamental human right and include it more prominently under Article 21.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.


Please enter your comment!
Please enter your name here