Guilty until Proven Innocent? – The Presumption of Innocence

Presumption of Innocence

The wheels of justice grind at an exceedingly slow rate in India. They moreover, not occasionally, take a wrong turn or hit a cul-de-sac. Take the case of Rajesh and Nupur Talwar, who spent four years of imprisonment on the charge of killing their daughter. They were released after the Allahabad High Court tossed out the case against them. But the Talwars are not alone in their bind. In two cases decided in 2019, the Bombay and Calcutta High Courts embraced veering positions with respect to the pertinence of the reverse onus clause contained in Section 29 of the Protection of Children from Sexual Offences Act (POCSO).

In the case of Imran Shamim Khan, the Bombay High Court sentenced the accused by depending on the assumption of guilt under the section. On the opposite, the Calcutta High Court held that the charged cannot be sentenced exclusively on the basis of the presumption of guilt under Section 29, if the prosecution version is far-fetched, in this way indicating at a certain threshold barrier which the prosecution has got to cross, for the assumption to apply.

In spite of the fact that the Supreme Court has not however commented on the defendability of Section 29, it has made passing perceptions that the charged may not be assumed innocent even at the trial stage, in case of offenses to which the section applies Ei incumbit probatio qui dicit, non qui negat. The Latin proverb of criminal innocence may be a sacred chalice of any defense attorney, and it is without a doubt the solution for criminal jurisprudence. It implies the burden of proving the charged crime is on the one who announces and not the one who denies it.

As crimes are expanding day by day, I consider it an opportunity for the criminal law to advance more thoroughly and profoundly, and keeping in mind the conviction rates of the courts in India, this rule of assumption of innocence gets even more vital. If India is to set up a human rights-based approach with regard to criminal justice, tending to the current arbitrariness of statutory inversion of the onus of proof would be a vital step forward in that direction.

What is the Presumption of Innocence?

Our laws are based on the Common Law and uniformity of law. One of the imperative and well-known standards is that an individual is accepted to be innocent until proven guilty. This guideline is called the Presumption of Innocence. In other words, the charged is entitled to take advantage of the reasonable doubt in regard to his wrongdoing. This guideline is being seen in nations where the executorial framework is predominant. In a few European nations, the Inquisitorial rule or the principle based on inquiry isn’t being taken after. But opposite to Indian Law in a few nations accused is considered to be a guilty until proven innocent.

Presumption of Innocence

Since India is having an executorial framework, the law has acknowledged both these standards. Article 20 of the Constitution of India explicitly empowers citizens against self-incrimination. Article 21 deals with the Right to Life and Personal Liberty. The guarantee of presumption of innocence bears a direct link to the right against self-incrimination, since compelling the accused to testify would put the burden of proving innocence on the defendant instead of requiring the prosecution to prove guilt.

In spite of the fact that it is not specifically revered in the Criminal Code of India, but there are provisions that work on this rule. Section 101 and 102 of the Indian Evidence Act, which attests that any individual approaching the court to give its judgment on any legal right or liability, must demonstrate the presence of facts that he asserts. In this way, the burden of proving fact always lies upon the individual who attests it. But there are certain provisions and statutory regulations that weaken this guideline and put the burden of proving his/her innocence on the accused rather than on the prosecution.


In case the State is to abridge a person’s fundamental rights, it follows that any conviction must result from a fair trial. It bolsters other rights such as the right to silence and is a concomitant of the right to freedom. The assumption of innocence moreover plays a pivotal part in adjusting the predominant control and means of the State against those of standard citizens. Trials are truth-finding scenarios and not a place for blunders or disasters. Most imperatively, the presumption of innocence shields the right of a person by not letting him/her being wrongfully sentenced. The accused is made to invalidate an assumption of blame and prove his innocence.

A balance of probabilities standard does not in any way justify a reverse onus clause since the burden on the accused is extreme suggesting that his failure to release this burden would result in his conviction. Such a procedure comes up as profoundly harsh and cruel for the defendant.

In the case of Shivaji Saheb Rao Bobade, the Supreme Court cautioned that in spite of the fact that this doctrine is exceptionally useful, this golden rule must be utilized with caution and should not be utilized in a doubtful manner. Accused is to be given only a sensible benefit of the doubt. As such, on the off chance that the guideline of ‘even if a thousand individuals may get acquitted, one innocent individual, should not be punished‘ is connected in all cases and is dependent upon indiscriminately, it may cause an unfavorable effect on the administration of justice and the society may lose confidence in it. Other than that, it isn’t desirable to vindicate or convict the accused wrongfully. Indeed if the accused were given punishment wrongfully, this moreover would make an antagonistic impact on society.

In case the accused is punished without satisfactory evidence against him, it moreover would make an awful impression on society and may have serious results on his family fiscally and socially. In the common law legal doctrine, the presumption of innocence is taken to be fundamentally a rule of evidence, setting guidelines for the decision of blame. Taken in this sense, the idea manages that the burden of proof is on the prosecution authorities, and it sets a standard with respect to the limit of required verification: the presumption of innocence must be vanquished by proof of guilt past a sensible doubt before blame can be regarded as established and a conviction can take place.


The presumption of innocence has nowadays been watered down on the pretext of expedient justice but one ought to keep in mind justice rushed is certainly justice buried. Indian criminal law is on the way of discouragement and hence sanctioning such laws that always neglect the rights of the charged ought to be a troubling practice. It should never be overlooked that in a criminal trial the accused needs to establish his innocence and not prove it and it is adequate in case he raises a doubt as to his guilt. The courts have full authority, rather I would say a protected obligation to strike off laws that scratch the basics and the essential structure of our Constitution and the courts get this control from the Constitution itself.

Here lies the excellence of the magnificent archive the Indian Constitution and the Maneka Gandhi pronouncement which completely opened the entryways of legal review of laws, which was as of now intended by the Constituent Assembly and that the law has to be tested by the courts that whether it takes after the substantive due process or not. It is now for the courts and courts alone to take a strong stand in accomplishing and reiterating the remedy of Indian Criminal Jurisprudence i.e presumption of innocence as a fundamental human right and incorporate it more unequivocally inside the contours of Article 21.

The Supreme Court of India isn’t just a court of law, but a court of values and hence the constitutional courts are to do justice and not just to take after the legislation like the English courts, as it is expressed by the Supreme court, “Justice may be an ideal which transcends all obstructions and the rules or methods but the technicalities of law cannot stand within the way of administration of justice.” The Law has to bend before Justice.

Editor’s Note
The author in this article talks at length about the doctrine of presumption of innocence. The author defines and states the importance of the doctrine with the use of a case-law. Finally, the author concludes that this doctrine needs to be applied more stringently by the courts to achieve justice in its true sense.