The Presumption of Innocence under the Bharatiya Sakshya Adhiniyam, 2023 and the Constitution

The presumption of innocence appears nowhere in the Adhiniyam. There is no section stating it, no definition of it among the three grades of presumption in Section 2(1), and no illustration of it in Section 119. It is nevertheless the principle that governs the whole of the criminal side of the statute, and every provision placing a burden on an accused is drafted as an exception to something the legislature never wrote down.

1. A Presumption That Is Not in the Statute

The Adhiniyam defines three grades of presumption — may presume, shall presume and conclusive proof — and deploys them across Sections 78 to 93 and 110 to 120. The presumption of innocence is none of them, and it is not among them.

It operates instead as a structural principle, and the statute gives effect to it in three ways.

By silence. There is no provision placing a general burden on an accused. Section 104 requires him who asserts to prove, and in a criminal trial it is the prosecution that asserts.
By the test in Section 105. The burden lies on the person who would fail if no evidence at all were given. If nothing were led in a criminal trial, the prosecution would fail and the accused would be acquitted.
By exception. Every reverse burden — Section 108 and the specific presumptions in Sections 115, 117, 118 and 120 — is framed as a departure, which presupposes a rule to depart from.

⚠ The presumption is not among the three grades

It is sometimes described as a 'shall presume' provision, or as a presumption of law. It is neither. It is not defined in Section 2(1), it attaches to no foundational fact, and it requires nothing to be proved before it operates — which is precisely what distinguishes it from every presumption the Adhiniyam contains. It is the starting position of a criminal trial rather than an inference drawn within one.

2. The Golden Thread

📖 Woolmington v. Director of Public Prosecutions, [1935] AC 462 (HL)

Held: 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, as to whether the prisoner killed the deceased with a malicious intention, 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 and no attempt to whittle it down can be entertained.

Ratio: The burden rests on the prosecution throughout, and a doubt raised by the defence evidence operates in the accused's favour even where the defence is not established.

Two features of the formulation deserve attention because they are frequently lost.

The doubt may be created by the evidence of either side. The accused does not have to prove anything; it is enough that what he leads, taken with the prosecution case, leaves the court unsure. This is why a defence that fails as a defence may still succeed as a doubt.

The exceptions are named. Insanity and statutory exceptions are the only departures the golden thread admits, and every reverse burden must therefore be justified as a statutory exception rather than as an incident of the ordinary rule.

3. The Indian Formulation

📖 Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808

Held: It is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent until he is proved to be guilty, and the burden of proving the guilt of the accused is upon the prosecution. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.

The Court observed that the higher the stakes, the greater should be the degree of care, and that it is better that ten guilty persons should escape than that one innocent person should suffer.

Ratio: The presumption of innocence and the two-views rule are fundamental principles of Indian criminal jurisprudence.

The two-views rule is the working form the presumption takes in Indian practice, and it is invoked far more often than the presumption in the abstract. Where the evidence admits of two reasonable views, the court is not free to prefer the one it finds marginally more likely; it must adopt the one favourable to the accused.

This is not a rule about the burden. It is a rule about what the court does when the burden has not been discharged to the required standard — which is the same thing looked at from the other end.

4. What a Reasonable Doubt Is

The protection operates on reasonable doubt, and the qualification carries weight.

📖 Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793

Held: The Court cautioned against the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence, and against the miscarriage of justice which arises from the acquittal of the guilty no less than from the conviction of the innocent. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense arising out of the evidence.

The Court observed that the mental distance between 'may be' and 'must be' is long, and divides vague conjectures from sure conclusions.

Ratio: The benefit of doubt operates on doubt founded in the evidence, not on speculative possibility.

The two decisions are read together and neither is complete without the other. Kali Ram states the protection; Shivaji Sahabrao Bobade states its limit. The distinction the second draws — between what may be and what must be — is also the foundation of the fifth of the five golden principles governing circumstantial evidence.

A reasonable doubt is	A reasonable doubt is not
A doubt arising from the evidence or from the absence of evidence	A doubt arising from imagination or from a theoretical possibility
A doubt a prudent person would entertain in a matter of importance	A doubt raised merely because an alternative can be conceived
A doubt that survives after the whole of the material is considered	A doubt founded on an isolated discrepancy in an otherwise consistent account
A doubt about an ingredient the prosecution had to establish	A doubt about a peripheral matter not going to any ingredient

5. The Constitutional Status

Whether the presumption of innocence is a fundamental right has been considered, and the answer is carefully qualified.

📖 Noor Aga v. State of Punjab, (2008) 16 SCC 417

Held: The presumption of innocence is a human right, and is recognised as such in international instruments including Article 14(2) of the International Covenant on Civil and Political Rights. It is, however, not a fundamental right within the meaning of Part III of the Constitution, and it may therefore be subject to statutory exceptions.

A reverse burden provision is not per se unconstitutional. Its validity depends on whether it satisfies the requirements of proportionality — whether the objective is sufficiently important, whether the measure is rationally connected to it, and whether it goes no further than necessary. A statute casting a burden on an accused must be construed strictly, and the foundational facts must be established by the prosecution beyond reasonable doubt before the presumption operates.

Ratio: The presumption of innocence is a human right subject to statutory exception, and a reverse burden is valid only if proportionate and only after the prosecution proves the foundational facts.

The position that emerges has three elements, and each does independent work.

The presumption is a human right and a component of the right to a fair trial, which has been read into Article 21 as part of the procedure established by law.
It is not absolute. The legislature may create exceptions, and the Adhiniyam itself does so in Sections 108, 115, 117, 118 and 120.
Exceptions are controlled by proportionality, are construed strictly, and operate only once the prosecution has proved the foundational facts beyond reasonable doubt.

⚠ The third element is the practical protection

The requirement that foundational facts be proved beyond reasonable doubt is what keeps a reverse burden from becoming a presumption of guilt. A presumption that operated on a bare allegation would reverse the golden thread entirely; one that operates only after the prosecution has proved defined facts to the criminal standard leaves the essential protection intact. In any case involving a reverse burden, the first question is always whether the foundational facts have been established — not whether the accused has rebutted.

6. When the Presumption Operates

The presumption is not confined to the trial, and it has consequences at several stages.

Before and during trial. The accused is treated as innocent, which bears on bail, on the conditions of custody, and on the conduct of the proceedings. He is not required to disclose his defence and files no pleading.

At the close of the trial. The court asks whether the prosecution has proved every ingredient beyond reasonable doubt, and acquits if it has not.

On appeal against conviction. The presumption continues until the conviction becomes final. An appellate court examines whether the finding of guilt is sustainable, and the accused retains the benefit of any reasonable doubt.

On appeal against acquittal. This is where the presumption is at its strongest. An acquittal reinforces the presumption of innocence, and an appellate court will interfere only where the view taken by the trial court is not a reasonably possible one — not merely because it would itself have reached a different conclusion. Where two views are possible and the trial court has taken one, the acquittal stands.

7. The Presumption and the Provisions

Several provisions of the Adhiniyam are best understood as expressions of, or exceptions to, the presumption.

Provision	Relationship to the presumption
Sections 104 and 105	Express it. He who asserts must prove, and the prosecution would fail if no evidence were given
Section 108	Exception — the accused must establish a General Exception, but on the civil standard, and failure may still leave a reasonable doubt
Section 109	Confined by it. Facts especially within knowledge, and the provision cannot relieve the prosecution of its burden — Shambhu Nath Mehra
Sections 115, 117, 118, 120	Exceptions — specific reverse burdens, subject to proof of the foundational facts
Section 119, Illustration (b)	Reinforces it. An accomplice is unworthy of credit unless corroborated in material particulars
Sections 22 to 24	Protect it. Confessions to police, and in custody, are inadmissible, and a confession is not conclusive
Section 23, proviso to sub-section (2)	The discovery rule — a narrow inroad, confined to the fact discovered

8. What the Presumption Does Not Mean

Four propositions are sometimes advanced in its name and none of them follows.

It does not mean that the accused's version must be accepted. The court is not obliged to believe an improbable explanation. What it must do is ask whether the explanation, even if not accepted, leaves a reasonable doubt about the prosecution case.

It does not mean that every discrepancy produces an acquittal. Minor discrepancies in the evidence of witnesses to a violent event are expected, and Shivaji Sahabrao Bobade warns against treating them as doubt.

It does not survive a proved foundational fact under a reverse burden. Where a statutory presumption operates and the foundational facts are established, the accused must rebut, and his silence is not protected by the presumption of innocence.

It does not prevent an adverse inference. Illustration (g) to Section 119 permits the court to presume that evidence withheld would be unfavourable, and Section 109 permits an inference from an accused's failure to explain facts especially within his knowledge — though both operate only after the prosecution has established the foundational circumstances.

9. The Position Stated Shortly

The presumption appears nowhere in the Adhiniyam and is none of the three grades of presumption defined in Section 2(1).
It operates structurally — through the silence of the statute, the test in Section 105, and the framing of every reverse burden as an exception.
The golden thread places the burden on the prosecution throughout, subject to insanity and to statutory exceptions — Woolmington.
A doubt created by the defence evidence operates in the accused's favour, even where the defence itself is not established.
Where two views are reasonably possible, the one favourable to the accused prevails — Kali Ram.
The doubt must be reasonable, founded on the evidence rather than on conjecture — Shivaji Sahabrao Bobade.
The presumption is a human right but not a fundamental right, and may be subject to statutory exception — Noor Aga.
A reverse burden is valid only if proportionate, is construed strictly, and operates only after the prosecution proves the foundational facts beyond reasonable doubt.

10. Related Topics and Provisions

Topic or provision	Connection
Reverse Burden of Proof	The exceptions the golden thread contemplates, and their limits
Burden of Proof in Criminal and Civil Cases	The two standards and how they differ
Burden of Proof — Sections 104 to 120	The chapter as a whole
Circumstantial Evidence and the Five Golden Principles	The 'may be' and 'must be' distinction
Confession and Article 20(3)	The protections surrounding statements by an accused
Sections 108 and 109, BSA	The general exception provision and the exclusive-knowledge provision
Section 119, BSA	Illustrations (b) and (g), reinforcing and qualifying the presumption