Ei incumbit probatio qui dicit, non qui negat – we may not be familiar with the Latin version of the same, but deducing its meaning, it states that “there is a presumption of innocence for every person until he/she is proven guilty”. To summarise, a person is presumed to be innocent unless proven otherwise. It is a well-known principle in criminal law, and has been adopted by many countries throughout the world, including India. In many jurisdictions, including those of common law and civil law, it is a recognized legal right, specifically in a criminal trial. In the Universal Declaration of Human Rights, the United Nations mentions it as an international human right, under Article 11.
Dating back to as early as the 6th century, the Digest of Justinian contains the Latin maxim of the presumption of innocence principle. It literally translates to “proof lies on him who asserts, not on him who denies”. Emperor Antoninus Pius introduced it into the Roman criminal law system. In other legal systems around the world, it has been accorded much significance.
To say the least, an accused must be recognized as an innocent person until the offence for which he/she has been charged is proven. Accordingly, it is upon the prosecution to prove the same beyond reasonable doubt, which includes presenting reliable evidence and, if possible, testimonies, of credible witnesses, in front of the court of law. Thus, it can be inferred that the presumption of innocence principle is the very elixir of the criminal justice system.
Presumption of Innocence Principle
British barrister Sir William Garrow coined the phrase “presumed innocent until proven guilty”, which somewhat summarised the presumption of innocence principle. He was of the view that an accuser should be tested robustly in a court of law, and the juror or judge must conclude, beyond reasonable doubt, that the accused certainly did commit the offence. Later on, in Woolmington v. Director of Public Prosecutions, the English Court of Appeal held the phrase to be the “golden thread” running across the web of the English criminal law.
If observes from a general point of view, most people accused of certain offences are not criminals. This was reflected in the phrase of French jurist Jean Lemoine “item quilbet presumitur innocens nisi probetur nocens”, which also translates to the fact that a person should be presumed innocent until his/her guilt is proven. It goes one step ahead to state that the accused/defendant should be given certain protections, prior notice of the accusations made against the defendant should be made, the right to get a counsel etc.
To lay out the cardinal points of the presumption of innocence, they can be summed up as:
- Regarding the facts of the case, it falls upon the prosecution entirely, to establish that the offence was committed and it was the defendant who committed the said offence
- As for the defendant, there is no burden of proof upon him/her, nor does he/she needs to present evidence in favour, or call witnesses, and if he/she chooses not to do so, this cannot be used against the defendant
- The judge or the juror is not be influenced in a negative way against the defendant, but is to consider the case based on facts and evidence, and then deliver the judgement
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. Apart from the Universal declaration of Human Rights, the International Covenant on Civil and Political Rights, under Article 14, states the principle of presumed innocence. Article 66 of the Rome Statute of the International Criminal Court expressly mentions the presumption of innocence principle. The European Union, the Inter-American Court, and countries like Canada, France, Russia and New Zealand also abide by the principle.
As per the English jurist William Blackstone, it is better if ten guilty escape rather than one innocent suffer.
Presumption of Innocence Principle in India
India inherited the common law system from British colonialism, and as a result, adopted the presumption of innocence rule. But, even though it is not expressly mentioned anywhere, it can be said that the rule is embedded in the criminal jurisprudence of our country. Also, it can be inferred from Article 20(3) of the Constitution of India, which states that no person can be compelled to be a witness against himself. It is the right against self-incrimination, which, if not granted, would place the burden on the accused, instead of the prosecution. In Data Ram v. State of U. P., the Supreme Court held that a postulate of criminal jurisprudence is the principle of presumption of innocence.
It is believed that a crime, when committed, not only affects the victim, but also affects the society in general, i.e. in rem. Thus, the prosecution in such cases is represented by the State, i.e. the nation. The various agencies of the State are dutybound to produce evidence against the accused and prove his/her guilt beyond any reasonable doubt. This burden of proof is mentioned in the Indian Evidence Act of 1872, under sections 101 and 102. Section 101 states that where a person desires a court of law to give a judgement regarding any legal right or disability, based on certain facts, must be able to prove those facts beyond reasonable doubt.
Further, when such person is bound to prove such facts, it is said that the burden of proof lies on that person. Section 102 explicitly mentions that the burden of proof lies on that person who, if no evidence on either side were to be produced, would fail in the suit. What these two sections point to are two types of burdens of proof: one to establish a case, section 101, which does not shift, and remains on the prosecution, and the other, to present evidence, section 102, which can shift on either of the parties, depending upon the stages of the case. The presumption of innocence principle stands beside the first type of burden of proof more emphatically, since the accused is to be deemed innocent until the prosecution has basis for the guilt of the accused, and such basis is proven in a court of law. However, as for the second type of burden of proof, the accused does not have a liability to produce evidence in his/her favour, even though it is allowed, but not producing evidence cannot be held against the accused.
Were there no presumption of innocence, it would go against the principles of a fair trial, as per Article 21 of the Indian Constitution, as well as against the right to live with dignity, since a reverse burden would infringe it.
The Indian Evidence Act enlists a number of other instances where burden of proof is required, and in each case, the person accused of a certain act does not bear the burden of proof, in accordance with the presumption of innocence principle. The person asserting the facts is the one who is required to prove those facts.
Scope of Presumption of Innocence Principle
In Gurbaksh Singh Sibbia v. State of Punjab, a Constitution Bench held the principle of presumption of innocence as being “salutary and deeply grained in our criminal jurisprudence”, but did not remark it as being a part of Article 21, the right to life and personal liberty. But, while interpreting section 438 of the Code of Criminal Procedure, 1974, which speaks of granting anticipatory bail, observed that the grant of bail could not be limited because of unreasonable restrictions, which are mentioned in the section itself. Therefore, even though the Supreme Court may not have explicitly stated that presumption of innocence forms a part of Article 21, it sort of made a connection between the two through these two statements.
Later on, in Narendra Singh v. State of M. P., a Division Bench held that the presumption of innocence was a human right, and that the prosecution always carries the burden of proof. A similar view was held in Ranjit Singh Sharma v. State of Maharashtra, where the Court stated that Article 21 not only ensures protection of life and personal liberty, but also of a fair procedure. And, the liberty of a person should not be intruded unless there is legitimate ground to do so.
During the 2000s, the Supreme Court stuck with the stance that the right to be presumed innocence is only a human right, in relation to the accused in a trial, which was reflected in a few judgements. It was only in 2010, that the first judgement, of Manu Sharma v. State (NCT) of Delhi, where the Court was considering the impact of a media trial on the accused, came with a view that destruction of the presumption of innocence of the accused would go against the rule of law as well as Article 21 of the Constitution. Subsequently, A Constitution Bench expressed, in clear words, that the presumption of innocence principle is a part of the rule of law under Article 14 and the right to life and personal liberty under Article 21.
Article 21 protects the life and personal liberty of every citizen, and it can only be taken away through a fair and reasonable procedure. Thus, linking the principle with Article 21, it signifies that the presumption of innocence can only be taken away on reasonable grounds, which in turn would imply the proof of guilt on the part of the accused.
In a criminal trial, the position of the accused is one of jeopardy, thus it is important to accord certain rights and assumptions to the accused in order to ensure the accused of a fair trial. The rationale behind the principle of presumed innocence is to protect the accused persons from wrongful convictions, especially when it comes to offences where the punishment is extreme. Not only does this principle protect the accused, it also makes sure that the right person is sentenced for the offence committed, since the prosecution proves beyond reasonable doubt that it was the accused only that committed the offence.
Putting this principle under Article 21 also shields the accused from any arbitrary laws that the Parliament may come out with, since the right under Article 21 cannot be abridged easily.
It is important to follow the presumption of innocence principle in a criminal trial, the same resting on the judiciary, which ought to take a neutral point of view when considering a suit. Justice cannot be delivered if any one of the two sides in a conflict is prejudiced.
FAQs on Presumption of Innocence Principle
The origin of principle of innocence dates back to as early as the 6th century. The Digest of Justinian contains the Latin maxim of the principle, which translates to “proof lies on him who asserts, not on him who denies”. Emperor Antoninus Pius introduced it into the Roman criminal law system. Later on, the principle expanded to other parts of Europe, and to the rest of the world, finding its way into modern legal systems.
The principle of presumption of innocence loosely states that a person is presumed to be innocent unless proven otherwise. In a criminal trial, the burden of proving the guilt of the accused rests on the prosecution, and until the guilt is proven beyond reasonable doubt, the accused should be deemed as innocent. The rationale behind it is to protect the accused persons from wrongful convictions.
As opposed to its earlier stances, where it was held as a human right only, the Supreme Court, later on, put the principle of presumption of innocence under the ambit of Article 21 of the Indian Constitution, thus expanding its scope to make it a fundamental right. Article 21 protects the life and personal liberty of every citizen, and it can only be taken away through a fair and reasonable procedure. Thus, linking the principle with Article 21, it signifies that the presumption of innocence can only be taken away on reasonable grounds, which in turn would imply the proof of guilt on the part of the accused.
 (1935) UKHL 1.
 (2018) 3 SCC 22.
 State of Maharashtra v. Vasudeo Ramchandra Kaidalwar, 1981 3 SCC 199.
 Babu Lal v. State, AIR 1960 All. 223.
 Mohan Lal v. State of Punjab, AIR 2018 SC 3853.
 1980 AIR 1632.
 (2004) 10 SCC 699.
 (2005) 5 SCC 294.
 Noor Aga v. State of Punjab, (2008) 16 SCC 417; Vinod Solanki v. Union of India, 2009 (233) ELT 157 (SC).
 2010 AIR (SC) 2352.
 Sahara India Real Estate v. SEBI, Civil Appeal No. 9813 of 2011.
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