Shifting of the Burden of Proof under the Bharatiya Sakshya Adhiniyam, 2023: The Mechanisms

Strictly, the burden of proof does not shift at all. What shifts is the onus — the obligation to respond, which moves back and forth as the evidence accumulates. Five distinct mechanisms produce that movement, and they are not interchangeable: one operates on the sufficiency of evidence, one on statutory presumptions, one on facts within a party's exclusive knowledge, one on relationships, and one by express legislative reversal. Knowing which mechanism is in play tells a party what he must do and to what standard.

1. What Actually Shifts

The legal burden is placed by the pleadings and the substantive law, and it operates at one moment only — when the court, having heard everything, is unable to decide. The party bearing it then loses.

The onus is a function of the evidence as it stands at any moment. It moves whenever one side has led enough to succeed unless answered, and it may move several times within a single issue.

Everything that follows concerns the onus. The five mechanisms are the ways in which the law causes it to move.

2. Mechanism One — Sufficiency of Evidence

The commonest mechanism and the one requiring no provision at all. A party who leads enough evidence to establish his case prima facie puts the other side to an answer.

Nothing in the Adhiniyam creates this. It follows from the definition of 'proved' in Section 2(1)(j) — a fact is proved when the court believes it to exist, or considers its existence so probable that a prudent man ought to act on the supposition that it exists. Once a party's evidence reaches that point, the court would decide in his favour unless something is said, and the other side must therefore say something.

Two features of this mechanism distinguish it from the rest.

It is not a legal consequence but a practical one. No rule has operated; the court has simply been persuaded, provisionally, on the material before it.

It is reversible without limit. Where the other side answers, the onus moves back, and it may move again several times. This is the 'continuous process' A. Raghavamma describes.

3. Mechanism Two — Presumptions

A presumption moves the onus by operation of law on proof of a foundational fact. The extent of the movement depends on the grade of the presumption.

The Adhiniyam deploys presumptions in two blocks. Sections 78 to 93 contain the presumptions as to documents, most of them obligatory. Sections 110 to 120 contain the presumptions in the burden-of-proof chapter, a mixture of grades.

One requirement is common to every presumption and is where arguments about shifting most often fail: the foundational fact must be proved. A party invoking Section 92 must prove that the document is thirty years old and came from proper custody; a party invoking Section 118 must show cruelty or harassment for a dowry demand soon before the death. Until the foundation is established, no onus moves at all.

4. Mechanism Three — Exclusive Knowledge

The mechanism rests on a practical proposition: where a fact lies peculiarly within one person's knowledge, requiring the other side to prove it would impose an impossible burden. But read widely the provision would swallow the presumption of innocence, and its scope has accordingly been confined.

Where it does apply, its force is considerable — particularly where an accused had exclusive custody or access.

The mechanism therefore works alongside the last seen circumstance and with Illustration (g) to Section 119. But the sequence matters: the prosecution must first establish the foundational circumstances, and only then does the absence of explanation acquire significance. Silence is not itself a circumstance; it becomes one only when there is something to explain.

5. Mechanism Four — Established States of Affairs

Four sections move the onus by reference to a state of affairs shown to exist, on the principle that things are presumed to continue as they are.

Section 113 is the most consequential of the four in practice. Possession is good title against all but the true owner, and a plaintiff seeking to disturb a person in possession must prove his own title. The possessor need prove nothing until the plaintiff has.

Section 111 carries a limitation frequently overlooked. It moves the onus on the question whether a person is alive. It establishes nothing about when he died, and there is no presumption that death occurred at the end of the seven years or at any other moment. Where the date matters — for succession, for survivorship, for a policy — it must be proved as a fact by whoever asserts it.

Section 114 belongs with this group but works differently. Where a question arises as to the good faith of a transaction between parties one of whom stands to the other in a position of active confidence, the burden of proving good faith is on the party in that position. The foundational fact is the relationship, and what must then be shown is not merely the absence of fraud but the fairness of the transaction — full disclosure, understanding, adequate consideration, and ideally independent advice.

6. Mechanism Five — Express Statutory Reversal

The fifth mechanism operates by the legislature placing a burden where it would not otherwise lie. Five provisions in the chapter do this, and they are the most heavily litigated.

6.1 Section 108 — Exceptions and defences

The burden of proving circumstances bringing the case within any General Exception in the Bharatiya Nyaya Sanhita, 2023, or within any special exception or proviso, is upon the accused, and the court shall presume the absence of such circumstances.

Two qualifications keep the section within the golden thread. The accused discharges the burden on a preponderance of probabilities. And material which fails to establish the defence may nevertheless raise a reasonable doubt about the prosecution case — in which case he is acquitted notwithstanding his failure.

6.2 Sections 117 and 118 — The deliberate contrast

These two provisions sit side by side and differ in a way that is plainly intentional.

6.3 Sections 115 and 120

Section 115 provides that where a person accused of certain offences was at a place in a disturbed area when firearms or explosives were used from there against the armed forces or forces maintaining public order, 'it shall be presumed, unless the contrary is shown, that such person had committed such offence'. The formula is not defined in Section 2(1) and reads as a mandatory rebuttable presumption.

Section 120 provides that in a prosecution for the specified sexual offences, where intercourse is proved and the woman states in her evidence that she did not consent, the court shall presume that she did not consent. Three conditions must coincide — intercourse proved, consent in issue, and the woman so deposing — and the presumption does not arise from the allegation alone.

7. The Standard of Rebuttal

Once the onus has moved, the question is what the party must do to discharge it, and the answer differs between the civil and criminal sides.

8. When the Shifting Stops Mattering

A point is reached in every contested case at which the movement of the onus ceases to be of any consequence, and it is worth identifying.

Once both parties have led their evidence and the court has formed a view on the material as a whole, the question of onus is spent. The court decides on the evidence, and it does not matter who had to respond at any intermediate stage. The settled proposition is that once both sides have led evidence, the question of burden of proof largely becomes academic.

Two consequences follow.

A wrong allocation is not always fatal. Where the court has recorded clear findings on the evidence, an appellate court will ordinarily not interfere merely because the onus was placed on the wrong party. Where, however, the trial court decided the case on the onus — holding that a party failed because he had not discharged it — the misallocation goes to the root.

The legal burden survives. Although the onus is spent, the legal burden is not. If the court is left in genuine equipoise, the party bearing the legal burden loses — and that burden is exactly where the pleadings placed it at the outset.

9. Working Through a Shifting Argument

1. Identify the legal burden first. Apply the test in Section 105 — who would fail if no evidence at all were given? That party bears it throughout.
2. Identify the mechanism relied upon. Sufficiency of evidence, a presumption, exclusive knowledge, an established state of affairs, or an express statutory reversal.
3. Establish the foundational fact. No onus moves until it is proved, and this is where most such arguments fail.
4. Check the grade where a presumption is relied upon. A may-presume provision requires the court to be persuaded to draw the inference.
5. Identify the standard of rebuttal, which is the civil standard for an accused rebutting a presumption or proving a defence.
6. In a criminal case, ask the second question — whether material failing to establish a defence nevertheless raises a reasonable doubt.
7. Do not argue about onus once the evidence is closed. The question is then academic, and the argument should be about the evidence itself.

10. The Position Stated Shortly

1. The burden never shifts; the onus does — A. Raghavamma — and shifting is a continuous process in the evaluation of evidence.
2. Five mechanisms move the onus — sufficiency of evidence, presumptions, exclusive knowledge, established states of affairs, and express statutory reversal.
3. Every presumption requires a foundational fact, and no onus moves until it is proved.
4. A may-presume provision may move nothing, since the court may instead call for proof of the fact.
5. Section 109 applies only to facts exceptionally within a person's knowledge and never displaces the prosecution's burden — Shambhu Nath Mehra.
6. Sections 117 and 118 differ deliberately — one discretionary, one mandatory — and Section 118 uses 'shown' rather than 'proved'.
7. An accused rebuts on a preponderance of probabilities, and failure to rebut does not establish the prosecution case.
8. Once both sides have led evidence the onus is spent, though the legal burden decides the case if the court is left in equipoise.

11. Related Topics and Provisions