It has been observed that India’s criminal jurisprudence is highly developed and comprises of several legal provisions that assist both the victim and the accused in obtaining a free and fair trial. These provisions are supported by strong principle and judicial precedents.  This article focuses on one such important principle of the criminal justice system that is “presumption of innocence” which says that a person is believed to be innocent till the guilt is proved against him. It requires the prosecution to prove the guilt beyond a reasonable doubt. However, this principle is being violated by various laws, procedures and practices. The accused is denied the right to be presumed innocent until proven guilty under these laws and judicial practices. This article, among other things, considers the constitutionality of a shift in the burden of proof, as well as the standards of proof required in criminal cases in India.

“It is better that ten guilty persons escape than that one innocent suffers”. – Blackstone’s ratio

This blog is written by (1)- Divya Mehta (2)- Dipti Tharwani from 3rd year student of Nirma University, Ahmedabad.


Rights and justice are inextricably linked. Since justice is built on the foundation of equal rights and liabilities, the rights of both sides in a criminal trial must be balanced to achieve justice goals and a miscarriage of justice occurs when someone is negligent or biased against someone else’s right. The fundamental tenet of our criminal justice system is that the accused has the right to be presumed innocent until proven guilty. 

Presumption of innocence says that an accused is presumed to be innocent until they are proven guilty. It was traditionally expressed by the Latin expression eiincumbit probatio qui dicit, non qui negat which means that the burden of proof is on the one who declares, not on one who denies. Thus, a person will only be guilty if they are found guilty after having a fair trial.

Further, there are two other important principles of criminal law that supports the presumption of innocence:

The burden of proof:

According to Section 101 of the Indian evidence act,  whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts, must prove that those facts exist.[1]  In criminal cases, the prosecution bears the burden of proving the charge against the accused. It is not the accused who must show his innocence in this case because he is presumed innocent unless his guilt is established. That is why the prosecution has to prove his case and section 101 comes into operation.

In Raj Kumar Verma V. Nandan Kumar & Ors., it was held that the burden of proving a fact is always upon the person who asserts the facts, according to Section 101 of the Evidence Act. The other party does not need to establish his case until such burden is discharged.[2]

Furthermore, Section 105 of the Indian evidence act, 1872  has some special characteristics. It says that when a person is accused of any offense, the burden of proving the existence of circumstances bringing the case within general exceptions in the Indian Penal Code (45 of 1860), or within any special exception or proviso contained in any part of the same code or any law defining the offense, is upon him, and the court shall presume the absence of such circumstances.[3]

Once the prosecution has been successful to prove the guilt beyond reasonable doubt that the accused had committed offense. It is immediately transferred to the accused, who may establish a defense by bringing his case within the general exceptions of the I.P.C. or within any special exception or proviso included in any part of the same code or any other law if he so wishes.

In Pratap v State of U.P, Even though the accused had not taken his defence in the committal processes, the probability that he caused death in self-defense was deemed to be substantial. The Supreme Court once again stated that the burden of proving that a case falls within one of the broad exceptions can be discharged by establishing a preponderance of the evidence.[4]

Standard of proof:

The basic principle which is followed in our criminal justice system is let the hundred offenders go unpunished but one innocent person should not be punished. That is why the accuse guilt must be proven beyond any reasonable doubt.

The Civil Justice System is on a somewhat different footing. In civil cases, the individual claiming a fact is not required to prove it beyond a reasonable doubt. Instead, he has the Preponderance of Probability. While there are many theoretical differences between the two, the only realistic difference is that in Preponderance of Probability, the degree or likelihood of the evidence ascertained is a bit lower than in Beyond Reasonable Doubt.

In criminal cases, the guilt must be proven beyond all reasonable doubt that a reasonable man of ordinary prudence might have. There should be no ambiguity on whether or not the accused is guilty. If there is even the slightest doubt, no matter how small, the accused will benefit. The provisions about the Burden of Proof and how it is to be discharged in the Indian legal system are generously laid down in Chapter VII of the Evidence Act, 1872.[5]


The theory of presumption of innocence on the part of the accused originated in English criminal law and was later adopted into Indian criminal law. The basic parameter for proving guilt in criminal cases was established by the English House of Lords in Woolmington v D.P.P. [6] It held that the duty of proving the accused’s guilt was only on the prosecution, that the accused shall be presumed innocent until the guilt is proved by the prosecution, and that there shall be no presumption of guilt upon the accused under any circumstances. The theory of presumption of innocence on the part of the accused was first developed by Indian courts in Queen-Empress v Ramana and Ashraf Ali v Emperor [7], rather than by legislation such as the Indian Evidence Act, 1872. As a result, in India, the accused’s right to be presumed innocent unless proved guilty is neither a constitutional right nor specifically recognized as a statutory right. Nonetheless, several authors claim that despite the lack of a constitutional clause, the intrinsic importance of this right has resulted in it gaining higher status in the Indian criminal justice system. Furthermore, owing to the fundamental existence of the right, the members of the Constituent Assembly assumed the presumption of innocence as a right of the accused already existed in the Indian legal system.[8]

Need and importance of the presumption of innocence:

The criminal justice system is designed to deliver justice for all. This means protecting the innocent, convicting criminals, and providing a fair justice process to keep order across the country. The presumption of innocence has been referred to as a “golden thread”[9] that runs through the criminal justice system. Further, the assumption that accused criminals are innocent unless proven guilty acts as a valuable safeguard in many ways and it prevents the accused to prove their innocence.

If accused people had to prove their innocence, it could lead to prosecutorial abuses and a plethora of allegations that they would have to refute. Also, a presumption of innocence allows the accused people to remain silent and prevent them from being called to testify in their defense. Prosecutors must prove each element of the crime charged against the accused person, so knowing the elements of the crime charged is important.

In criminal law, the burden of proof is a crucial element in the legal process. It aids in the conduct of a free and fair trial by bringing both parties to the same stage. When the burden of proof is placed on the wrong party, it taints the court’s decision and leads to a miscarriage of justice. It’s worth noting that the laws governing the presumption of proof and standard of proof in criminal trials are important because they uphold individual liberty and act as a barrier to oppression.

Features of criminal justice system that upholds presumption of innocence

Right to silence

The right to silence is a legal concept that gives individuals the option of refusing to answer questions from law enforcement or court officials. Many legal systems around the world accept it as a legal right, either expressly or by consensus. It is a part of the right to self-incrimination in India, as specified by Article 20(3) of the Indian Constitution.[10] The article enables the citizens to enjoy the right against self-incrimination which is a fundamental principle of law. The following are the privileges that come within this right:

  • The accused is presumed to be innocent
  • The prosecution has to prove him guilty
  • Accused cannot be compelled to give any statement.

According to section 161(2) of Crpc, it is a persons responsibility to answer all the questions raised by the officer truly but he cannot be compelled to say anything against his will. If the statement has the potential to jeopardize him. He has the right to remain silent.[11]

The presumption of innocence serves as the foundation for a defendant’s right to remain quiet and enjoy the privilege against self-incrimination. The right to silent is a legal safeguard intended to protect individuals against the use of coercive state power. It is a fundamental principle of criminal jurisprudence in this country that it is for the prosecutor and only the prosecution, to prove all of the elements of the crime with which the accused has been charged. The accused is not required to open his mouth or enter into his defense until the prosecution has discharged its responsibility and satisfactorily proven the accuse guilt.[12]

Further, if an accused exercises his right to silence by refusing the evidence at the trial, the judge cannot conclude the accused to be guilty. This uploads the presumption of innocence because if a person is presumed to be innocent then there is no reason why they should have to answer the questions or give evidence at the trial.


Bail is a legal term that refers to a person’s release from legal custody in lieu for an undertaking that he or she will appear at the time and place specified and submit to the court’s authority and judgment.[13] 

In the case of State of  Rajasthan v. Balchand @ Baliay, the court held the basic rule of “bail, not jail”. In this case the Supreme Court relied on the fundamental right to liberty provided under Article 21 of the Constitution. Where detention of a person infringes his right to liberty and while interpreting the provisions of the Criminal Procedure Code (CrPC) relating to arrest usually hold that detention of an individual should be avoided unless necessary.[14]

Individuals right to liberty is violated when bail is denied, since they are imprisoned without being tried or convicted. This upholds the presumption because if a person is presumed to be innocent then that person should not be held on remand in jail until their trial, you can’t put an innocent person in jail.

Furthermore, in India it is fair to say that granting bail is for the most part a discretionary relief, and courts have not followed any set trend in granting or denying bail over the years.

Power of arrest

Section 75 Criminal Procedure Code states that “the police officer or other person serving a warrant of arrest shall inform the person to be arrested of the substance thereof, and, if so necessary, shall show him the warrant.” The arrest would be illegal if the content of the warrant was not disclosed.[15]

Therefore, no one can be arrested arbitrarily or imprisoned without an accusation or conviction against them. The Constitution also forbids any treatment or punishment that is unfair, inhumane, or abusive. This upholds the presumption of innocence because if a person is presumed to be innocent then the police will not be able to arrest that person for committing a crime where the police have no real reason to believe that the person has committed that crime.

How Reverse ouns clause is diluting the Presumption of Innocance?

Reverse onus clauses or reverse burdens means shifting the burden of proof on the accused after the prosecution have proved the foundation facts. This principle have weeken the  concept of presumption of innocence. A basic concept of fair procedure in criminal law is that an individual is presumed innocent unless proved guilty. This principle prevents against erroneous convictions and ensures that the State’s power and resources are not utilized to harm an innocent individual. A presumption of guilt, on the other hand, imposes an unjust burden on the accused by requiring him to establish his innocence before being pronounced guilty.[16]

Non-compliance with legal procedure:

In Maneka Gandhi’s case[17] it was established that the right to life and personal liberty can only be regulated by legal process which must be just, equitable, and rational. Although the concept of  reverse onus clause as per legislative intent is justified because in some cases it is important for an accuse to prove his innocence by bringing out evidences but due to judicial interpretation the principle of presumption of innocence is diluted with each passing year. The prosecution’s burden is higher, i.e., beyond a reasonable doubt, while the accuse burden is a preponderance of the proof. However, when such standards are not followed, the practice ceases to be just, fair, or rational. Therefore, excessive burden on accuse in reverse onus clauses volatile of procedure establishes by law.

Violates accuse right to remain silent:

According to Article 20(3) of the Indian Constitution, no one can be forced to testify against himself. Article 20(3) has been extensively discussed by the courts in several cases. One of the case is M.P. Sharma v. Satish Chandra, where it was held that right against self-incrimination also includes right to remain silent.[18] when the accuse is presumed guilty as per reverse burden of proof. It becames the duty of the accuse to bring out all the evidence to prove his innocence. This violates an accuse right to remain silent, which is protected by the  fundamental rights.

Demolishing public confidence

In Noor Aga v. State of Punjab, the Court held that reverse onus clause is constitutional as it not only justify the policies interest but also control the social issues. Also, the change in the burden of proof on the accuse is only after the prosecution has established the actus reus and fundamental facts of the case and to ensure security of the State individual liberty must be subject to social interest.[19]

However, It is significant to note that , While it consider the need to punish convictions in serious crimes, it failed to identify the increased risk of reverse burden on convicting innocent persons as its difficult for an accuse to prove innocence beyond reasonable doubt in certain offences. So, even after recognising that presumption of innocence ensures public confidence in the justice system, the Court upheld the constitutionality of reverse onus clause.

Overview of various acts where burden of proof is revered 


According to Section 29 of the POCSO Act, if a person is prosecuted for committing or aiding in the commission of or attempting to commit an offense under Sections 3, 5, 7, or 9 of the Act, the Special Court shall conclude that the offense has been committed, aided in the commission of or attempted to commit the offense unless the accused prove otherwise.[20]

In Section 30 of the POCSO Act, The Special Court shall presume that there is a mental state of an accuse to commit a crime but this is the responsibility of the accuse to prove that he has no ill intention towards the crime committed. Furthermore, subclause (2) states that the defense must prove the accuse innocence beyond a reasonable doubt, rather than by a preponderance of probabilities.[21]

Both Sections 29 and 30 of the Act should be declared unconstitutional because they violate the accuse fundamental rights and fair procedure principle of common law, where it is the responsibility of the prosecutor to bears the burden of evidence and to prove the case beyond a reasonable doubt against the accused. The principle of presumption of innocence will be in the favor of the accuse unless proven guilty.[22]

Therefore, Sections 29 and 30 of POCSO  are arbitrary and irrational and violates fundamental right by not requiring the prosecution to prove any evidence relevant to the case. Also the presumption of guilt disregards the constitutionality of reverse onus clauses laid down in Noor Aga[23], and raises the possibility of wrongful conviction.

Prevention of Money Laundering Act

According to Section 24 of the Prevention of Money Laundering Act, When a person is accused of committing an offence under section 3 of the Prevention of Money Laundering Act, the burden of proofshall be on the accused that proceeds of crime are untainted property. It is an example of a reverse onus provision passed by Parliament as a “quick fix” for achieving its twin goals of deterring heinous crimes and increasing the rate of convictions.[24]

Economic offenses involving conspiracies and significant losses of public funds must be taken severely and recognized as major offenses because it not only affect the entire economy of the country but also constitute a direct risk to the financial system.[25]

But the presumption under Section 24 of the PMLA can be discharged by an accused only during the trial, not before charges are framed, because courts usually do not rely on defence information before charges are framed. Invoking the presumption under Section 24 of the PMLA prior to bringing charges would therefore be unreasonable, unlawful, and contrary to the legislative intent.[26]

This was also held in the case of Upender Rai vs Enforcement Directorate, that if an individual is charged with money laundering, the Authority or the Court must conclude that the proceeds of crime are involved in money laundering only after the charges are framed.[27]

The duty of proving that the property owned by the accused was not proceeds of crime and is untainted will be on the accused under Section 24 of the Act, and he is obliged to discharge the burden of proof at the stage of trial by showing his Income, Earnings, and Assets.[28] Thus, this dilute the presumption of innocence concept as at the stage of trial it must be the duty of prosecution to prove accused guilty by bringing all the evidences but this responsibility has been shifted on accused which is arbitarty and irrational and violates the principle of fair trial.

Also, the existence of reverse onus clauses essentially points to the investigating agencies inability to perform proper investigations within the standards of existing fair trial requirements. Any deviation from those requirements would necessitate a trade-off between justice and performance, which is neither constitutional nor desirable.[29]

There are more examples like the NDPS Act, Prevention of Corruption Act, etc where the presumption of innocence until proved guilty has been replaced by the principle of guilt until proven innocent. If the accused is unable to pass the balance of probability standards, i.e. prove his innonace then he will be convicted.

Conclusion and opinion

Individual independence and dignity are important values in a democratic society like India. The presumption of innocence is a foundation of both a fair trial and the rule of law. It protects people not only in criminal trials, but also in civil and administrative proceedings. Furthermore, the presumption of innocence serves as a powerful backdrop to the principle of justice in maintaining “public trust in the judicial system’s long-term credibility and security.”[30]

It can be inferred from the above that reverse onus clauses should be declared unconstitutional because it not only violates the presumption of innocence but also violates fundamental values lay down under Art. 14  and  21 of the Constitution of India. Therefore, the Indian criminal justice system should not assume that reverse burdens will enhance public welfare since this attitude ignores the fact that such a policy is self-defeating and does not represent a culture values of fairness and justice.

[1] The Indian Evidence Act, 1872, §101, No. 1, Acts of Parliament 1990.

[2] Avtar Singh, “Principles of the law of Evidence”, 521, (26th edition, 2016), Central Law Publication, Allahabad.

[3] The Indian Evidence Act, 1872, §105, No. 1, Acts of Parliament 1990.

[4] Pratap vs State Of U.P, 1973 AIR 786.

[5] Jack B. Weinstein & Ian Dewsbury, Comment on the meaning of ‘proof beyond a reasonable doubt’, 5 oxford academic 167, 167–173 (2006).

[6]Woolmington v DPP, 1935 AC 462.

[7] Ashraf Ali vs Emperor, 43 Ind Cas 241, Queen-Empress vs Raman And Ors, (1898) ILR 21 Mad 83.

[8] Abinand Lagisetti, Reverse Onus Clauses: Validity, Regulation and the Correlation with Death Penalty, CCLSNLUJ, MAY 4,2020, https://criminallawstudiesnluj.wordpress.com/2020/05/04/reverse-onus-clauses-validity-regulation-and-the-correlation-with-death-penalty/.

[9]Supra note 9.

[10] Indian Const. art 20(3).

[11] Code of Criminal Procedure Act, 1973, §161(2), No. 2, Acts of Parliament 1949 (India).

[12] Rishi Kesh Singh And Ors. vs The State, AIR 1970 All 51.

[13] Bryan A Garner & Henry Campbell Black, Black’s law dictionary (1 ed. 1999).

[14] State Of Rajasthan, Jaipur vs Balchand @ Baliay, 1977 AIR 2447.

[15] Code of Criminal Procedure Act, 1973, §75, No. 2, Acts of Parliament 1949 (India).

[16] Juhi Gupta, “Interpretation of Reverse Onus Clauses”, 5 NUJS Law Review, 2012, pp. 49-64, at 63.

[17]Maneka Gandhi v. The Union of India, 1978 (1) SCC 248.

[18]M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.

[19] Noor Aga vs. State of Punjab and Anr.,2008 16 SCC 417, M/s. Seema Silk and Sarees v. Directorate of Enforcement, (2008) 5 SCC 580.

[20] Protection of Children from Sexual Offences Act 2012, § 29.

[21] Protection of Children from Sexual Offences Act 2012, § 30.

[22] Ayushi H. Desai and Devanshi B. Desai, Examination of Reverse Onus Clauses under POCSO Act, CNLU, Aug 28, 2020, https://www.crccnlu.org/post/examination-of-reverse-onus-clauses-under-pocso-act.

[23] Noor Aga vs. State of Punjab and Anr.,2008 16 SCC 417.

[24] The Prevention of Money-Laundering Act, 2002, §24, No. 15, Acts of Parliament, 2003

[25] Rohit Tandon Vs Enforcement Directorate, AIR 2017 SC 5309 ,  Subrata Chattoraj vs Union of India 2014 8 SCC 768, Y. S. Jagan Mohan Reddy vs CBI, AIR 2013 SC 1933, Union of India Vs Hassan Ali Khan, (2011) 10 SCC 235.

[26] Madhav Khurana & Vignaraj Pasayat, Reverse Burden of Proof under Section 24 of the Prevention of Money Laundering Act, 2002– Obligation of the prosecution and the accused and at what stage can this provision be invoked, SCC Online,  June 4, 2020.

[27] Upender Rai vs Enforcement Directorate, (2019) 262 DLT 382.

[28] Radha Mohan Lakhotia Vs Enforcement Directorate, (2010) 5 BOM CR 625.

[29] Mohan Lal v. State of Punjab (2018) 17 SCC 627.

[30] Supra note 29.