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 is 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[1].

Delivering the judgement for a unanimous court, Viscount Sankey J. made his famous golden thread speech:
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 entertained.

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 Rights 1948.

It states:
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.[2]

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.[3]

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.[4] 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 criminal trial.

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.[5]

Further in Data ram's case[6] 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[7], in which it was stated:
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.

It is clear from a reading that there are two exceptions to the rue under the English criminal law, they are:

1. Defence of insanity;
2. 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 [8] a three judge bench ruled that a fair trial is a fundamental right under Article 21.

Further by keeping the stellar verdict in Maneka Gandhi's case[9] 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.

Adding 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 each case.

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:

Section 113A:

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 husband.

The use of word may leaves it on to the discretion of the court whether to presume or not.

Section 113B:

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[10]. 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.

One thing 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-

Section 114A:

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 scenario.

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.

Conclusion
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 or not.

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 innocence 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.

End-Notes:

1. Woolmington v. Director of public prosecutions [1935] UKHL 1.
2. Article 11(1) of UDHR 1948.
3. Article 6(2) of ECHR 1954.
4. Article 14(2) of ICCPR 1966.
5. Rangammal v. kuppuswami AIR 2011 SC 234.
6. Data Ram v. State of U.P (2018) 3 SCC 22
7. Woolmington v. Director of public prosecutions [1935] UKHL 1.
8. Mohan lal v. State of Punjab AIR 2018 SC 3853.
9. Maneka Gandhi v. Union of India 1978 AIR 597.
10. Shersingh Partapa v. State of Haryana AIR 2015 SC 980.