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REVERSE ONUS CLAUSES:
A COMPARATIVE LAW PERSPECTIVE
Rahul Singh*
Delphidius (Prosecutor): 0, illustrious Caesar! If it is sufficient to deny,
what hereafter will become of the guilty?
Julian: If it is sufficient to accuse, what will become of the innocent?'
The above exchange brings out very clearly the two extreme possibilities
in the process of bringing an accused to justice. The interest of the prosecutor
lies in getting the accused convicted. The accused views himself as the victim
of the process and tries to take advantage of the protections that are inherent
in any trial procedure. Both sides put forth a particular point of view, which
according to each is the only way of looking at things. Both sides depend
crucially on one benchmark - adducing evidence with respect to either
exculpation or inculpation. The question that we are concerned with is who
has the burden of proof? i.e. who ought merely to allege and who ought to
deny or affirm by adducing evidence?
Everyone would like to see the guilty brought to book. But to arrive at a
conclusion of guilt is a long drawn out process and requires rigorous adherence
to rules. It would be easy for the state to give rules a go-by and declare that
henceforth, any person charged with an offence would have to come to Court
and prove his innocence failing which he would be convicted. The attraction
for the short cut is often felt by the state, which sees an increasingly low
conviction rate as a threat to law and order and thereby its legitimacy and
seeks to correct this by various means, all of which may not -be desirable.
This article is an endeavour to study one such short cut approach adopted by
the state - reverse onus clauses in statutes, whereby the burden is shifted onto
the accused to prove his innocence instead of requiring the prosecution to
prove the guilt of the accused. The relevance of this issue cannot be
overemphasised. Now that the dreaded Terrorist and Disruptive Activities
(Prevention) Act has been repealed, the Central Government is contemplating
passing the Prevention of Terrorism Bill, which has been widely criticised for
provisions that are no less draconian than those of TADA. 2
* III Year, B.A., LL.B. (Hons.), National Law School of India University, Bangalore.
1. As cited in Coffin v. UnitedStates, 156 US 432, at 454 (1895).
2. "Prevention of Terrorism Bill could be misused", The Times ofIndia,July 17, 2000, at 8. For a
contrary view see B. P. Jeevan Reddy, "Anti-terrorism Bill: some misconceptions", The Hindu,
July 27, 2000, at 12.
Vol. 13 Reverse Onus Clauses: A Comparative Law Perspective 149
Reverse Onus Clauses in Indian Criminal Law

Before undertaking a survey of reverse onus clauses in India, it would
be illuminating to understand the anatomy of such a clause. Simply put,
reversing the onus means that in a criminal trial, instead of the prosecution
proving the guilt of the accused, the accused would have to prove his
innocence. In other words the law accords primacy to the concerns of
Delphidius. It is well established that the presumption of innocence (and the
consequent burden of proof on the prosecution) is recognised in Indian law
as well.3 Nevertheless, this has not prevented the legislature from creating
exceptions to this rule.
Perhaps the earliest example of this tendency may be found in the
concerns expressed by the Forty-seventh Law Commission constituted by
the Government of India to deal with matters relating to socio-economic
offences. The Commission pointed out that in the case of socio-economic
offences, the interest purported to be protected was not that of an individual
(as in case of murder, theft, etc.) but, for example, the social interest in
protection of property and health and the economic interest in preventing tax
avoidance. The Commission observed that such offences have to be treated
differently from those that are targeted at individuals as they had the potential
to harm society. Among the recommendations of the Commission was the
suggestion that in case of certain offences, the requirement of the proof of
mental element by the prosecution should be dispensed with and the burden
of proving that the required mens rea was absent should be on the defence.'
However, the inclination to shift the onus of proof has not remained
confined to exceptional sityations. The following section examines some of
the reverse onus clauses that exist in Indian law. Although most of the
enactments discussed below deal with socio-economic offences, this is not
3. S. V. Joga Rao, CurrentIssues in CriminalJustice and Medical Law: A CriticalFocus 69-70

(New Delhi: Eastern Law House, 1999). R N. Krishna Lal v. State ofKerala,AIR 1995 SC 1325
(per Ramaswamy, J.).
4. 47th Law Commission of India Report on Socio-economic offences. "Although the actual facts
of a particular case relating to an economic offence may appear to possess only a minor significance,
there is behind the curtain a ring of associates engaged in committing a number of crimes. These
crimes it is difficult to prove before the court in conformity with traditional standard of proof. The
moral conviction of responsible enforcement officers is difficult to be translated into legal conviction
in the minds of the judicial agencies operating in the traditional manner. The mental element
undoubtedly exists, but it is difficult to prove it. The act that has caused damage has been
unearthed, the mind behind it remains unproved. Such a situation, we think is productive of great
harm."
150 Student Advocate [2001
necessarily indicative of the domains within which reverse onus clauses

operate.s
Essential Commodities Act, 1955 (hereafter ECA)

The Preamble of the ECA states that the Act is meant to be in the public
interest, for the control of production, supply and distribution of trade and
commerce in certain commodities. The regulation is done by way of licences
and various orders passed under the Act. It seeks to prevent hoarding and
black marketing of essential goods. The Act was amended in 1974 and
s. 1OC was inserted:
S. 1OC: In any prosecution for an offence under this Act, which requires
culpable mental state on the part of the accused, the Court shall presume
the existence of such mental state, but it shall be a defence to prove the
fact that he had no such mental state with respect to an act charged as an
offence under this Act.
Explanation (1) In this section "culpable mental state" includes intention,
motive, knowledge, belief in or reason to believe in fact.
Explanation (2) For the purposes of this section, a fact is said to be
proved only when it is proved beyond reasonable doubt and not merely
when its existence is established by preponderance of probabilities.
The section clearly shifts the burden on the accused to prove that his act
was innocent. The defence must prove the absence of the required mental
state beyond reasonable doubt. This means that that the burden on the defence
is as high as that on the prosecution and the defence cannot escape liability
merely by creating a reasonable doubt with respect to his mental state.
Food Adulteration Act, 1954 (hereafter FAA)

The Act seeks to prevent the adulteration of food substances, which if
not controlled could have serious health implications. S. 19 of the Act provides
that:
Where any drug or cosmetic (or any item of food, as the case may be) is
seized from a person by an inspector under a reasonable belief that such
drug or cosmetic (or any item of food, as the case may be) is misbranded
or adulterated, the burden of proving that it is not adulterated or
misbranded is on the person from whom it is seized.
5. For a detailed account of the enactments discussed here and comments thereon see generally
Gaurav Agrawal, "Burden of Proof: Emerging Trends", 1998 Cri U 97.
The shifting of the burden of proof is evident from a plain reading of the
provision. However, one fails understand what is so special about the
knowledge of the person that he needs to prove that the particular item seized
is not adulterated or misbranded. Contrary to s. 10C of the ECA this section
does not mention the standard of proof. This could mean that the defence
may discharge its burden by proving on a "balance of probabilities" and not
necessarily "beyond reasonable doubt".
Customs Act, 1962

The Customs Act deals with the levy of customs duty on goods and
seeks to prevent the import of pernicious goods. In keeping with the
recommendations of the 4 7th Law Commission several amendments were
made to shift the burden of proof on to the accused. Thus, s. 123 states that:
Where any goods to which this section applies are seized under reasonable
belief that the goods are smuggled, the burden of proving that they are
not smuggled, shall be on the person from whom the goods are seized or
any person who claims to be the owner of those goods.
Sections 138A and 139 create similar presumptions of guilt.
Foreign Exchange Regulation Act, 6 1973 (hereafter FERA)

The Act was meant to regulate certain payments, dealings in foreign
exchange and securities, transactions indirectly affecting foreign exchange
and the import and export of currency, with a view to conservation and proper
utilisation of the foreign exchange resources of the country, given that this
was vital for economic development. S. 59 of the Act is worded very similarly
to s. 1OC of the ECA:
S. 59: In any prosecution for an offence under this Act, which requires
motive, knowledge of a fact and belief in, or reason to -believe, a fact.
6. Although the Act stands repealed by the new Foreign Exchange Management Act, 1999, it is
worth examining the provisions dealing with the shifting of the burden of proof. The repealment
had nothing to do with the reverse onus clauses incorporated in the Act, but was triggered by the
changed economic scenario and the changed focusof the government as far as the management
of the economy was concerned.

proved only when the court believes it to exist beyond reasonable doubt
and not merely when its existence is established by preponderance of
probability.
S. 71 deals with the burden of proof in certain cases:
S. 71(1): Where any person is prosecuted or proceeded against for
contravening any of the provisions of this Act or any rule, direction or
order made thereunder which prohibits him from so doing an act without
permission, the burden of proving that he had the requisite permission
shall be on him.
(2) Where any person is prosecuted or proceeded against for contravening
the provisions of sub-section (3) of section 8, the burden of proof
that the foreign exchange acquired by such person has been used for
the purpose for which permission to acquire it was granted shall be
on him.
(3) If any person is found or is proved to have been in possession of any
foreign exchange exceeding in value of fifteen thousand rupees, the
burden of proving that the foreign exchange came into his possession
lawfully shall be on him.
Finally, s. 72 deals with presumptions as to documents in certain cases:

S. 72: Where any document (i) is produced or furnished by any person
or has been seized from the custody or control of any person, in either
case, under this Act or under any other law, or (ii) has been received
from any place outside India (duly authenticated by such authority or
person and in such manner as may be prescribed) in the course of
investigation of any offence under this Act alleged to have been committed
by any person, and such document is tendered in any proceedings under
this Act in evidence against him, or against him and any other person
who is proceeded against jointly with him, the court or the adjudicating
officer, as the case may be, shall:
(a) presume, unless the contrary is proved, that the signature and every
other part of such document which purports to be in the handwriting
of any particular person or which the court may reasonably assume
to have been signed by, or to be in the handwriting of, any particular
person, is in that person's handwriting, and in the case of a document
executed or attested, that it was executed and attested by the person
by whom it purports to have been so executed or attested;
(b) admit the document in evidence notwithstanding that it is not duly

stamped, if such document is otherwise admissible in evidence;
(c) in a case falling under clause (i), also presume, unless the contrary is
proved, the truth of the contents of such documents.
FEMA (the legislation that succeeded FERA) contains no provisions
corresponding to ss. 59 and 71 above. However, s. 72 has been retained in
FEMA, with some inconsequential modifications.'
Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter NDPS

Act)
As the name suggests, the Act was intended to curb the menace of drug
abuse and trafficking. The gravity with which this was viewed is evident from
the fact that mere possession of certain drugs incurs a minimum mandatory
sentence of imprisonment for ten years. S. 35 of the Act is similar to s. 10C of
the ECA:
S. 35: In any prosecution for an offence under this Act, which requires
motive, knowledge of a fact and belief in or reason to believe, fact.
proved only when the court believes it to exist beyond a reasonable
doubt and not merely when its existence is established by a preponderance
of probability.
S. 54 is also in the nature of a reverse onus clause since it infers an adverse
presumption from possession of illicit articles.
S. 54: In a trial under this Act, it may be presumed, unless and until the
contrary is proved, that the accused has committed an offence, in respect
of (a) a narcotic or a psychotropic drug, (b) any opium, poppy or cannabis
plant or cocoa plant growing on the land which is cultivated.. .for the
possession of which he fails to account satisfactorily.
7. In clause (ii), "any offence under this Act" has been substituted with "any contravention under
this Act" and "adjudicating officer" has been replaced with "adjudicating authority".
154 Student Advocate [ 2001
Comparative Law Perspectives

The presumption of innocence has long been considered one of the
fundamental principles of criminal law. The Lectric Law Library's Lexicon
defines the concept as follows: "the indictment or formal charge against any
person is not evidence of guilt. Indeed, the person is presumed by the law to
be innocent. The law does not require a person to prove his innocence or
produce any evidence at all. The Government has the burden of proving a
person guilty beyond a reasonable doubt, and if it fails to do so the person is
(so far as the law is concerned) not guilty".' Richard Mahoney takes the
concept even further, arguing that there ought not to be any distinction in the
operation of the presumption of innocence based on a differentiation between
defences questioning the existence of an element of an offence and true
defences, because this distinction is not founded on moral criteria.' This
section of the article is a study in comparative law on the concepts of the
presumption of innocence and reverse onus clauses.
United Kingdom
In the UK, the case of Woolmington v. D.P.P.0 is celebrated as the
landmark case on the presumption of innocence." The case emphasised the
importance and immutability of the presumption, except under the following
three circumstances:
1. Where the accused must prove the insanity defence as laid down in
McNaghten's case;12
8. See http://www.lectlaw.com/def/i047.htm (July 10, 2000).

9. Richard Mahoney, "The Presumption of Innocence: A new era", 67 Can Bar Rev 1 (1988).
10. [1935] All ER 1.
11. The statement of Lord Viscount Sankey, L. C. is often quoted in this regard: "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 what I have already said as to the defence of
insanity and subject also to any statutory exception. If at the end of 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 of England and no attempt to whittle it down can be entertained." [1935] All ER I
at 8.
12. The requirements of the defence of insanity were laid down in McNaghten's case [(1843) 10 Cl
& Fin 200] where it was held that "to establish a defence on the ground of insanity, it must be
clearly proved that at the time of committing the act, the party accused was labouring under such
a defect of reason, from the disease of the mind, as not to know the nature and quality of the act
he was doing; or, if he did know it, that he did not know he was doing what was wrong."
2. Where a statute specifically so designates 13 ;

3. In relation to statutory offences, where the burden is placed on the accused
by implicationl4
Although the case mentioned these three circumstances as exceptions to
the normal rule, even in the UK it was found that presumptions adverse to the
accused were drawn in numerous circumstances. Indeed, a study conducted
by Andrew Ashworth revealed that the presumption of innocence declared in
Woolmington was departed from in almost 40% of the offences that were
tried by the Crown Court."
Canada
In Canada, the presumption of innocence enjoys constitutional protection.
S. 11(d) of the Canadian Charter of Rights and Freedoms mandates that a
person charged with an offence has the right "to be presumed innocent unless
proven guilty according to law in a fair and public hearing by an independent
and impartial tribunal." The presumption of innocence is also considered
integral to the right to life, liberty and security of the person protected by s. 7
of the Charter.
The presumption of innocence implies that before an accused can be
convicted, the judge must be satisfied beyond reasonable doubt of the existence
of all the essential elements of the offence. In R. v. Oakesl6 it was held that
13. This position has been severely criticised. See for example Andrew Ashworth and Meredith
Blake, "The Presumption of Innocence in English Criminal Law", [1996] Crim LR 306,317. The
authors state: "If the legislature is free to impose strict liability as and when it wishes, the vigorous
assertion of the presumption of innocence rings hollow."
14. The precise ambit of this exception has been subject to much debate in recent times. See A. A. S.
Zuckerman, "The Third Exception to the Woolmington Rule", 92 LQR 42 (1976); A. A. S.
Zuckerman, "No Third Exception to the Woolmington Rule", 104 LQR 170 (1987); Francis
Bennion, "Statutory Exceptions: A Third Knot in the Golden Thread?", [1988] Crim LR 31; Peter
Mirfield, "The Legacy of Hunt", [1988] Crim LR 19; D. J. Birch, "Hunting the Shark: The
Elusive Statutory Exception", [1988] Crim LR 221; Peter Mirfield, "An Ungrateful Reply",
[1988] Crim LR 233.
15. Supra note 13.
16. R. v. Oakes, [1986] 1 SCR 103. In this case, the respondent was charged with unlawful possession
of a narcotic for the purpose of trafficking, contrary to s. 4(2) of the Narcotic Control Act, but was
convicted only of unlawful possession. After the trial judge made a finding that it was beyond
reasonable doubt that the respondent was in possession of a narcotic, the respondent brought a
motion challenging the constitutional validity of s. 8 of the Narcotic Control Act. That section
provided that if the Court found the accused in possession of a narcotic, the accused was
presumed to have been in possession for the purpose of trafficking and that, absent the accused's
establishing the contrary, he must be convicted of trafficking. The Ontario Court of Appeal, on an
"...a provision which requires an accused to disprove on a balance of

probabilities the existence of a presumed fact, which is an important
element of the offence in question, violates the presumption of innocence
in s. 11(d). The fact that the standard required on rebuttal is only a balance
of probabilities does not render a reverse onus clause constitutional.
Section 8 of the Narcotic Control Act infringes the presumption of
innocence in s. 11(d) of the Charter by requiring the accused to prove he
is not guilty of trafficking once the basic fact of possession is proven...""
In Oakes, once the prosecution had proved the fact of possession of a
narcotic, the accused was required to prove on a balance of probabilities that
he was not in possession of the narcotic for the purpose of trafficking. If the
accused were to raise a reasonable doubt on the issue of whether his possession
was for the purpose of trafficking, but remained unable to prove this on a
appeal brought by the Crown, found that this provision constituted a "reverse onus" clause and
held it to be unconstitutional because it violated the presumption of innocence entrenched in s.
11(d) of the Canadian Charter of Rights and Freedoms. The Crown appealed and a constitutional
question was raised as to whether s. 8 of the Narcotic Control Act violated s. 11(d) of the Charter
and was therefore of no force and effect. Inherent in this question, given a finding that s. I1(d) of
the Charter had been violated, was the issue of whether or not s. 8 of the Narcotic Control Act was
a reasonable limit prescribed by law and demonstrably justified in a free and democratic society
for the purpose of s. 1 of the Charter.
The appeal was dismissed and the constitutional question answered in the affirmative. The Court
held: "Pursuant to s. 8 of the Narcotic Control Act, the accused, upon a finding beyond a
reasonable doubt of possession of a narcotic, has the legal burden of proving on a balance of
probabilities that he was not in possession of the narcotic for the purpose of trafficking. On proof
of possession, a mandatory presumption arises against the accused that he intended to traffic and
the accused will be found guilty unless he can rebut this presumption on a balance of probabili-
ties. The presumption of innocence lies at the very heart of the criminal law and is protected
expressly by s. 11(d) of the Charter and inferentially by the s. 7 right to life, liberty and security
of the person. This presumption has enjoyed longstanding recognition at common law and has
gained widespread acceptance as evidenced from its inclusion in major international human rights
documents.. .a provision which requires an accused to disprove on a balance of probabilities the
existence of a presumed fact, which is an important element of the offence in question, violates the
presumption of innocence in s. 11(d). The fact that the standard required on rebuttal is only a
balance of probabilities does not render a reverse onus clause constitutional. Section 8 of the
Narcotic Control Act infringes the presumption of innocence in s. 11(d) of the Charter by
requiring the accused to prove he is not guilty of trafficking once the basic fact of possession is
proven. The rational connection test - the potential for a rational connection between the basic fact
and the presumed fact to justify a reverse onus provision - does not apply to the interpretation of
s. 11(d). A basic fact may rationally tend to prove a presumed fact, but still not prove its existence
beyond a reasonable doubt, which is an important aspect of the presumption of innocence. The
appropriate stage for invoking the rational connection test is under s. 1 of the Charter."
17. Id.
balance of probabilities, he would still be convicted despite the existence of a

reasonable doubt. It is clear from the Canadian Supreme Court's decision in
Oakes, that what offends the presumption of innocence is the fact that an
accused may be convicted despite the existence of a reasonable doubt'" on
an essential element of the offence. It does not matter whether this results
from the existence of a reverse onus clause or from the elimination of the
need to prove an essential element.
The Canadian approach adopts a two-stage enquiry. In Oakes the court
examined first, whether there had been any contravention of a guaranteed
right (in this case ss. 7 and 11(d)). Second, the court enquired into whether
such contravention could be justified under s. 1 of the Canadian Charter,
which permits the rights and freedoms guaranteed by the Charter to be limited
on grounds that are reasonable and demonstrably justified in a free and
democratic society. In determining whether this was so, the court asked (1)
whether the objective to be served by the measures limiting the Charter right
was sufficiently important to warrant overriding a constitutionally protected
right or freedom; and (2) whether there was an element of proportionality
between the objective to be served and the measures used. Proportionality
was determined on the basis of: (i) whether the measures were fair and
rationally connected to the objective, (ii) whether they impaired the right in
question as little as possible, and (iii) whether there was proportionality between
the effects of the limiting measures and the objective. Although the court
conceded the seriousness of the objective to be served (suppression of drug
trafficking), it found no rational connection between the basic fact of possession
and the presumed fact of possession for the purpose of trafficking, and
therefore held that the impugned provision could not be justified under s. I
of the Charter.19
18. See also Whyte v. R., [1988] 2 SCR 3: "...the distinction between elements of the offence and
other aspects of the charge is irrelevant to the s. 11(d) inquiry. The real concern is not whether the
accused must disprove an element or prove an excuse, but that an accused may be convicted while
a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of
innocence." See also R. v. Keegstra, [1990] 3 SCR 697.
19. In the context of R. v. Oakes, [1986] 1SCR 103, although the Court held that s. 8 of the Narcotic
Control Act violated s. 11(d) of the Charter and was therefore of no force and effect, it also went
into whether the section could be justified under s. 1 of the Charter. Justice Dickson held:
"Section 1 of the Charter has two functions: First, it guarantees the rights and freedoms set out in
the provisions which follow it; and second, it states explicitly the exclusive justificatory criteria
against which limitations on those rights and freedoms may be measured. The onus of proving
that a limitation on any Charter right is reasonable and demonstrably justified in a free and
democratic society rests upon the party seeking to uphold the limitation. Limits on constitutionally
guaranteed rights are clearly exceptions to the general guarantee. The presumption is that Charter
rights are guaranteed unless the party invoking s. 1can bring itself within the exceptional criteria
The case of Vaillancourt v. R. 20 introduced the notion of substituted

element. Lamer, J., recognised that in some cases, substituting proof of one
element for proof of an essential element would not infringe the presumption
of innocence if, upon proof of the substituted element, it would be
unreasonable for the judge not to be satisfied beyond reasonable doubt of the
existence of the essential element. 2' This is another way of saying that a
statutory presumption infringes the presumption of innocence if it requires
the judge to convict despite the existence of a reasonable doubt. Only if the
existence of the substituted fact led inexorably to the conclusion that the
justifying their being limited. The standard of proof under s. 1 is a preponderance of probabilities.
Proof beyond a reasonable doubt would be unduly onerous on the party seeking to limit the right
because concepts such as "reasonableness", "justifiability",and "free and democratic society" are
not amenable to such a standard. Nevertheless, the preponderance of probability test must be
applied rigorously.
Two central criteria must be satisfied to establish that a limit is reasonable and demonstrably
justified in a free and democratic society. First, the objective to be served by the measures limiting
a Charter right must be sufficiently important to warrant overriding a constitutionally protected
right or freedom. The standard must be high to ensure that trivial objectives or those discordant
with the principles of a free and democratic society do not gain protection. At a minimum, an
objective must relate to societal concerns which are pressing and substantial in a free and demo-
cratic society before it can be characterised as sufficiently important. Second, the party invoking
s. 1 must show the means to be reasonable and demonstrably justified. This involves a form of
proportionality test involving three important components. To begin with, the measures must be
fair and not arbitrary, carefully designed to achieve the objective in question and rationally
connected to that objective. In addition, the means should impair the right in question as little as
possible. Lastly, there must be proportionality between the effects of the limiting measure and the
objective - the more severe the deleterious effects of a measure, the more important the objective
must be.
Parliament's concern that drug trafficking be decreased was substantial and pressing. Its objec-
tive of protecting society from the grave ills of drug trafficking was self-evident, for the purposes
of s. 1, and could potentially in certain cases warrant the overriding of a constitutionally protected
right. There was, however, no rational connection between the basic fact of possession and the
presumed fact of possession for the purpose of trafficking. The possession of a small or negligi-
ble quantity of narcotics would not support the inference of trafficking."
20. Vaillancourt v. R., [1987] 2 SCR 636; See also Laviolette v. R., [1987] 2 SCR*667, Whyte v. R.,
[1988] 2 SCR 3.
21. In the specific circumstances of Vaillancourt,s.213(d) of the Criminal Code had substituted for
proof beyond reasonable doubt of objective foreseeability of death, proof beyond reasonable
doubt of two factors: the intention to commit or attempt to commit a certain stipulated serious
crime, and the intent to have upon one's person, or to use, a weapon. The Court held that
notwithstanding proof beyond reasonable doubt of these two factors, ajury could reasonably be
left in doubt as to the objective foreseeability of the likelihood that death would be caused.
Therefore, proof of the substituted element in s. 213(d) did not in itself prove beyond a reasonable
doubt the essential element (i.e. the mens rea for murder).
essential eleient existed, with no other reasonable possibilities, would the

statutory presumption be constitutionally valid. If the judge entertained a
reasonable doubt as to the existence of an essential element notwithstanding
proof beyond reasonable doubt of the substituted element, then the substitution
would infringe ss. 7 and 11(d).
South Africa
South Africa has also accorded the presumption of innocence
constitutional protection. S. 25(3)(c) of the Constitution guarantees the right
"to be presumed innocent and to remain silent during plea proceedings or
trial and not to testify during a trial". In the case of S. v. Bhulwana2 2 the
accused were found in possession of dagga in excess of 115 grams. According
to section 21(1)(a)(i) of the Drugs and Drug Trafficking Act, they were
presumed to be dealing in dagga.2 3 The constitutionality of the presumption
was attacked on the ground that it imposed a burden of proof on the accused
contrary to the presumption of innocence contained in section 25(3) of the
Constitution. The State argued that this was not really a reverse onus clause
and that it imposed merely an evidential (and not a legal) burden on the
accused, whereby he was required to raise a reasonable doubt as to whether
he was guilty of the offence of dealing.
The Court held that the provision did indeed impose a legal burden which
required the accused to prove on a balance of probabilities -that he was not
guilty of dealing; where the State proved that an accused was in possession
of dagga in excess of 115 grams, an accused who raised a reasonable doubt
on the issue of whether he was dealing, but did not prove this on a balance of
probabilities, would be convicted. The Court then considered whether the
imposition of this burden breached the presumption of innocence guaranteed
by s. 25(3)(c) of the Constitution and if so, whether it was nonetheless justified
by s. 33 of the Constitution.2 4 The Court held that the presumption of innocence
as enshrined in the Constitution required the prosecution to bear the burden
22. (1996] 1 All SA 11 (CC).

23. Section 21(1) of the Act provides that: "If in the prosecution of any person for an offence referred
to:
(a) in section 13(f) it is proved that the accused -
(i) was found in possession of dagga exceeding 115 grams.. .it shall be presumed, until the
contrary is proved, that the accused dealt in such dagga or substance".
24. Section 33(1) provides that: "The rights entrenched in this Chapter may be limited by law of
general application, provided that such limitation:
(a) shall be permissible only to the extent that it is-
of proving all the elements of a criminal charge. A presumption which relieved

the prosecution of part of this burden could result in an accused being convicted
despite the existence of a reasonable doubt as to his guilt; such a presumption
would be in breach of the presumption of innocence. S. 21(1)(a)(i) of the
Drugs and Drug Trafficking Act was therefore violative of s. 25(3)(c) of the
Constitution.
In considering whether the presumption of dealing was justified by ss.
33 (i.e. whether it was reasonable, justifiable in an open and democratic society
based on freedom and equality, and necessary) the Court had to balance the
purpose, effects and importance of the infringing provision against the nature
and effect of the infringement caused by the provision. The Court accepted
that the prohibition of drug abuse and drug trafficking was a pressing social
purpose. However, it was not clear that the impugned provision substantially
furthered that purpose. The Court rejected the argument that the presumption
of dealing was needed to ensure adequate sentencing discretion and to facilitate
the prosecution and conviction of drug offenders, who would not otherwise
be convicted. The contention that a person found in possession of 115 grams
of dagga was more likely than not to have been dealing in dagga was also
rejected. Evidence showed that it was not unreasonable for a regular user of
dagga to possess 115 grams of the substance. The quantity of 115 grams
appeared to be an arbitrary amount and no explanation existed as to why this
quantity had been chosen as the threshold. The Court concluded that s.
21(1)(a)(i) of the Drugs and Drug Trafficking Act could not be justified by s.
33(1) of the Constitution as there was no logical connection between the fact
proved (possession of 115 grams of dagga) and the fact presumed (dealing).
The Court refused to "read down" the section by interpreting it as imposing
an evidential (as opposed to a legal) burden on the accused. The unambiguous
language of the provision and judicial dicta relating to its meaning did not
permit such a construction.
In S. v. Zuma2 5 the Constitutional Court of South Africa undertook an
extensive review of developments on the issue of reverse onus clauses in
(i) reasonable;
(ii) justifiable in an open and democratic society based on freedom and equality; and
(b) shall not negate the essential content of the right in question, and provided further that any
limitation to-
(aa) a right entrenched in section.. .25...
shall, in addition to being reasonable as required in paragraph (a)(i), also be necessary."
25. S. v. Zuma, 1995 (2) SACR 748 (CC). In this case, the Court was concerned with the
constitutionality of section 217(1)(b)(ii) of the Criminal Procedure Act, 1977, which contained a
reverse onus clause.
jurisdictions such as the US and Canada. It explicitly favoured the Canadian

two-stage enquiry, considering that the Canadian Charter was similar to the
South African Constitution in many respects.26 Hong Kong and Sri Lanka are
other jurisdictions where the presumption of innocence has been elevated to
the status of a constitutional guarantee.
China
Although China is rarely considered worthy of emulation on issues of
human rights or due process, it has also begun to recognise the presumption
of innocence as a fundamental concept in criminal justice administration.2 8
Article 12 of the new Criminal Procedure Law (CPL) addresses this issue for
the first time in the legal history of the People's Republic of China. However,
it does not refer directly to "presuming innocence", but merely states that "no
one shall be convicted unless a verdict of a people's court has been reached
according to law".2 9 Nevertheless, the change of attitude is evident from the
evolution of the language of the law. While the old CPL labelled an accused
"renfan" (offender), a term used in the imperial criminal justice system
regardless of the guilt or innocence of the person, the revised CPL uses the
term "xingshi xianyiren" (criminal suspect).30 Moreover, Article 162 clearly
26. Both require, as a general rule, a preliminary enquiry into whether a breach of a constitutional
right has occurred and thereafter a consideration of whether that breach may nevertheless be
justifiable in terms of another clause on certain specified grounds.
27. Article 11(1) of the Hong Kong Bill of Rights Ordinance, 1991, affirms that every accused has
a right to be presumed innocent until his guilt is proved. Cited in N. Prakash, "Presumption of
Innocence", 12 CentralIndia Law Quarterly 190, 198 (1999).
28. See generally http://www.igc.org/h/cf/english/96fall.html (July 12, 2000). There have been at
least two serious debates on this "bourgeois doctrine" in the course of the past four decades. The
first was in the 1950s, shortly before the Anti-Rightist Movement, when legal scholars emboldened
by Mao Zedong's policy of encouraging open criticism under the rubric of "Letting a hundred
flowers bloom and a hundred schools of thought contend", debated this issue very seriously.
Those favouring adoption of the presumption of innocence into the then-proposed criminal
procedure law were later severely criticised and labelled "Rightists". Some were dismissed from
their jobs and even sent to labour camps for "re-education". Almost every time a substantive
debate occurred in legal circles over this and other controversial subjects, the government found
some excuse to intervene and impose its orthodoxy. Only recently the authorities abruptly halted
a debate over whether the presumption of innocence should be incorporated into Chinese law.
29. Id.
30. Id.
places the burden of proof on the prosecution, thereby complying with the
essential requirement of the presumption of innocence."
United States
In the United States the presumption of innocence is not explicitly
guaranteed, but has been read into the "due process" provisions in the Fifth
and Fourteenth Amendments to the Constitution. A number of decisions have
unequivocally confirmed the presumption of innocence to be a fundamental
principle of law. In Tot v. United States, 32 it was held that "a statutory
presumption cannot be sustained if there be no rational connection between
the fact proved and the ultimate fact presumed, if the inference of the one
from proof of the other is arbitrary because of lack of connection between the
two in common experience." 3 3 The court in Leary v. United States34 went
further, stating that "a criminal statutory presumption must be regarded as
"irrational" or "arbitrary", and hence unconstitutional, unless it can at least
be said with substantial assurance that the presumed fact is more likely than
not to flow from the proved fact on which it is made to depend." 35 In County
Court of Ulster County, New York v. Allen,3 6 it was held that where a mandatory
criminal presumption was imposed by statute, the State could not rest its case
entirely on the presumption unless the fact proved was sufficient to support
the inference of guilt beyond a reasonable doubt. A mere rational connection
was insufficient. The case illustrates the high degree of constitutional
protection accorded to the principle that an accused must be found guilty
beyond reasonable doubt.
31. Id. Article 162 states that "the Collegial Panel [ofjudges] is to conduct its deliberations, and based
on the facts and evidence that have been clarified and on the relevant provisions of law, render the
following judgements: (1) a guilty verdict...; (2) a verdict of innocent, when the defendant is
found innocent according to law; and (3) a verdict of innocent, when the defendant cannot be
found guilty because of insufficient evidence. This verdict shall be given on the grounds that the
crime cannot be legally processed." While the law does not require defence lawyers to provide
evidence to prove the innocence of their clients, it does state that their professional responsibilities
include presenting evidence which proves the defendant's innocence or shows that the individual
should receive a lesser punishment.
32. 319 US 463 (1943). The impugned provision presumed, from the possession of firearms by a
person convicted of a previous crime of violence, that the firearms were illegally obtained through
interstate or foreign commerce.
33. Id.
34. 395 US 6 (1969).
35. Id.
36. 442 US 140 (1979).
The rationale for this principle was well stated by Brennan, J., in Re Winship":
"...the requirement of proof beyond reasonable doubt has this vital role
in our criminal procedure for cogent reasons. The accused during a
criminal prosecution has at stake interests of immense importance, both
because of the possibility that he may lose his liberty upon conviction
and because of the certainty that he would be stigmatised by the
conviction. Accordingly, a society that values the good name and freedom
of every individual should not condemn a man for commission of a
crime when there is reasonable doubt about his guilt.""
The court in Winship went to the extent of stating: "Lest there remain any
doubt about the constitutional structure of the reasonable doubt standard, we
explicitly hold that the due process clause protects the accused against
conviction except upon proof beyond reasonable doubt of every fact necessary
to constitute a crime with which he is charged."3 9
European Convention on Human Rights

Article 6(2) of the European Convention on Human Rights guarantees a
presumption of innocence, stating, "everyone charged with a -criminal offence
shall be presumed innocent until proved guilty according to law".40 Although
the Strasbourg Commission has endorsed the general importance of the
requirement that the prosecution prove the guilt of the accused beyond
reasonable doubt, it has acknowledged the permissibility of exceptions to
this principle. In X v. United Kingdom4 1 , the Commission considered whether
reverse onus clauses violated Article 6(2). The case involved a United
Kingdom applicant who had been convicted of the offence of living off the
immoral earnings of prostitutes. The legislation creating this offence contained
a reverse onus provision to the effect that a person who is proved to be living
37. 397 US 358 (1970).

38. Id.
39. Id. (emphasis mine).
40. Article 6(2) was discussed extensively in Pfunder'scase (Austriav. Italy) 6 Yearbook ECHR 740
(1963). "This text, according to which everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law, requires firstly that court judges in fulfilling their
duties should not start with the conviction or assumption that the accused committed the act with
which he is charged. In other words, the onus to prove guilt falls upon the prosecution, and any
doubt is to the benefit of the accused. Moreover, the judges must permit the latter to produce
evidence in rebuttal. In their judgement they can find him guilty only on the basis of direct or
indirect evidence sufficiently strong in the eyes of the law to establish his guilt."
41. App 5124/71, 42 Collection of Decisions 135 (1972).
with a prostitute, or who is, at the material time, proved to be in the company
of a prostitute, or who is proved to have exercised control over the movements
of a prostitute, so as to assist or encourage the prostitution, is presumed to
have committed the offence of living off the earnings of prostitution unless
the contrary is proved.4 2 The Commission held that a reverse onus clause of
this kind would not violate Article 6(2) if it created only a rebuttable
presumption of fact that the defence could disprove and was not unreasonable.
In the case under consideration
"...[the] statutory provision states that, when certain facts are proved by
the prosecution, certain facts shall be presumed. This creates a rebuttable
presumption of fact which the defence may, in turn, disprove. The
provision in question is not, therefore, as such, a presumption of guilt.43
In determining that the provision did not infringe Article 6(2), the
Commission also drew attention to the fact that it served a reasonable purpose,
noting that "to oblige the prosecution to obtain direct evidence of "living on
immoral earnings" would in most cases make its task impossible."" A reverse
onus clause could therefore be justified if it related to matters that were difficult
for the prosecution to prove because they were peculiarly within the accused's
own knowledge. However, the Commission did concede that a reverse onus
clause, if widely or unreasonably worded, could have the same effect as a
presumption of guilt. It is therefore vital to examine not only the form in
which a presumption is drafted, but also its substance and effect. More recently,
45
in Salabiaku v. France the Strasbourg Court affirmed the approach taken
by the Commission in X v. United Kingdom. It emphasised the importance of
confining reverse onus clauses within "reasonable limits which take into
account what is at stake and maintain the rights of the defence".
InternationalLaw
Article 11(1) of the Universal Declaration of Human Rights states that
"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
the guarantees necessary for his defence". Similarly, Article 14(2) of the
International Covenant on Civil and Political Rights provides that "everyone
charged with a criminal offence shall have the right to be presumed innocent
42. Sexual Offences Act, 1956, s. 30(2).

43. Supra note 41.
44. Id.
45. 13 EHRR 379 (1988).
until proved guilty according to law". As was mentioned earlier, Article 6(2)
of the European Convention on Human Rights is worded almost identically,
stating that "everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law". Article 66(3) of the Statute of
the International Criminal Court addresses the issue of burden of proof, stating
that "in order to convict the accused, the Court must be convinced of the guilt
of the accused beyond reasonable doubt". Although the applicability of
international law in India is beyond the scope of this article, the relevance of
international law and international human rights law in particular, has been
recognised in a number of Supreme Court decisions.4 6
The Shifting Burden of Proof

The outcome of the entire process of law - civil or criminal - as
administered by the courts depends crucially on proof of the facts alleged.
Central to this process are the rules determining who is to prove what. For
instance, if P were to move a court, alleging that D has made defamatory
statements against him, should the onus be upon P to prove the alleged fact
or should D be required to disprove that he ever made such statements? There
needs to be clarity in the law on who bears the burden of proof for several
reasons: 4 7
1. Rules on burden of proof would determine who had the right to call
evidence first in a trial, which in turn could afford that party, significant
advantages.
2. If a court were conscientiously unable to decide between the parties at
the end of a case, the onus of proof would determine who won and who
lost.
46. In KesavanandaBhartiv. State ofKerala, (1973) 4 SCC 225, Sikri, C. J. observed: "It seems to
me that in view of Article 51 of the directive principles, this court must interpret language of the
constitution, if not intractable, which is after all municipal law, in the light of the United Nations
Charter and solemn declarations subscribed to by India." In Gramophone Company of India
Limited v. B. B. Pandey,(1984)2 SCC 534, the Court answered two important questions, namely:
(1) whether International law is, of its own force drawn into the law of the land without the aid of
municipal law; and (2) whether such incorporation overrides the municipal law. The Supreme
Court held that international law should be adopted even without an enabling Act of Parliament
where it is not inconsistent with municipal law. See also Valsamma Paul v. Cochin University,
AIR 1996 SC 1011, C. MasilamaniMudliar v. Idol ofSwaminathaswami,AIR 1996 SC 1397,
Vishaka v. State of Rajasthan,AIR 1997 SC 3011.
47. Peter Murphy, A PracticalApproachto Evidence 85-104 (London: Blackstone Press Ltd., 1992).
3. If the case were appealed, rules on burden of proof would enable the
appellate court to determine whether a trial judge correctly assessed the
significance of evidence adduced by the parties.
The phrase "burden of proof' is somewhat ambiguous as it is used in at least

two senses:
1. Legal or persuasive burden - this is the burden of persuading the tribunal
of fact, to the required standard of proof, and on the whole of the evidence,
of the truth or sufficient probability of every essential fact in issue. Failure
to discharge the legal burden of proof on the whole of the evidence is
fatal to the case of the party having the burden of proof.48
2. Evidential burden - The discharge of the evidential burden of proof means
that the plaintiff has adduced enough evidence to establish a primafacie
case as to the facts in issue, and thereby defeat a submission of no case
to answer. 49
Nevertheless, there is a fundamental maxim that the burden of proof lies
on him who affirms or alleges a fact, not on him who denies it. This principle
is incorporated in the Indian Evidence Act, s. 101 of which states that "whoever
desires any Court to give judgement as to any legal right or liability dependent
on the existence of the facts which he asserts, must prove that those facts
exist" and s. 103 of which states that "the burden of proof as to any particular
fact lies on that person who wishes the Court to believe in its existence, unless
it is provided by any law that the proof of the fact shall lie on any particular
person." Thus, as a rule it is said the ultimate burden of proof or onus probandi
in case of a civil suit rests on the plaintiff and in a criminal trial on the
prosecution."
Legislatures have, however, seldom hesitated to contravene the general
rule. George Fletcher says that the requirement that the prosecution furnish
proof beyond reasonable doubt has slackened somewhat in the direction of
48. Colin Tapper, Crossand Tapperon Evidence 156-158 (London: Butterworths, 1995). The legal
burden is also sometimes known as the ultimate burden or the probative burden,
49. Byran A. Garner, Black's Law Dictionary 190 (Minnesota: West Group, 1999). In the United
States, the evidential burden of proof is known as the "burden of going forward with evidence"
or "burden of producing evidence" or simply "burden of production".
50. Supra note 48, at 112. "The fundamental requirement of any judicial system is that the person
who desires the court to take action must prove his case to its satisfaction. This means that, as a
matter of common sense, the legal burden of proving all facts essential to their claim normally
rests on the plaintiff or the prosecution."
the less onerous burden of proving on a balance of probabilities that the

plaintiff must discharge in a civil suit. He suggests that the burden of persuasion
on the plaintiff in private legal disputes (which is relatively lighter than the
corresponding burden on the prosecution in a criminal trial) had a great impact
on criminal cases in the 19th century and that rules of criminal law are
functional analogies of the rules settling private disputes.'
Another justification that is put forth for the mitigation of the burden on
the prosecution is that of administrative convenience. It is argued that an
unreasonably heavy burden on the prosecution results in a low conviction
rate, which in turn is viewed as evidence that justice is not being done. Further,
it is argued that since reverse onus clauses are usually resorted to in regulatory
offences which, by their very nature, do not carry the stigma that is associated
with "true" offences, even though such clauses would enhance the conviction
rate this would not unduly disadvantage accused persons since they would
not be stigmatised to the same extent. Both positions are untenable upon
closer scrutiny. First, a higher conviction rate cannot in itself be cause for
satisfaction if innocent people are being convicted (i.e. a high conviction rate
is not an end in itself). Second, whether or not regulatory offences are "true"
offences, they nevertheless carry penalties that disadvantage the accused in
the event of conviction.52
Paul Roberts argues that there are good reasons why the burden of proof
in a criminal trial ought to be placed solely on the prosecution. First, a reverse
onus clause presumes that the accused is a criminal and places the onus on
him to prove otherwise. This is contrary to liberal thinking, which values
individual autonomy and protects it from arbitrary interference by the state.
Second, the prosecution is both forewarned and forearmed in criminal
proceedings. It has the dual advantage of dictating the nature of the proceedings
and of being well prepared to participate in them. Third, it has greater powers
and investigative resources than the defence at the pre-trial and trial stages. 3
It is generally acknowledged that a reverse onus clause may be justified
if it relates to matters that are difficult for the prosecution to prove because
they, are peculiarly within the knowledge of the defence, provided that it
creates only a rebuttable presumption of fact and is restrictively worded.
51. George P. Fletcher, "Two kinds of legal rules: A Comparative study of Burden of Persuasion
Practices in Criminal Cases", 77 Yale IJ880 (1986).
52. Supra note 27.
53. Paul Roberts, "Taking the Burden of Proof Seriously", [1995] Crim LR 783, 785-788.
Indeed, s. 106 of the Indian Evidence Act, 1872, permits this.54 Canadian
courts have also adopted this approach. 5 If this proposition were extended
to its logical conclusion, one could argue that it is easier for the defendant to
prove the absence of mental elements of all crimes (than for the prosecution
to prove the presence of those elements) since nobody knows the mind of the
accused as well as himself. 6 This argument could be used by the state to
impose strict liability for virtually all offences. However, as the foregoing
discussion suggests, there are good reasons against adopting such an extreme
position.
Indian Legal Position

The burden of proving the guilt of an accused beyond reasonable doubt
is not expressly laid on the prosecution by law. Indeed, s. 101 of the Indian
Evidence Act, 1872, makes no distinction between the prosecution and the
defence, stating simply that the burden of proving a certain fact is on the
person who wishes to establish its existence. Nevertheless, Indian courts have
emphasised the fundamental nature of the presumption of innocence as
54. S. 106, Indian Evidence Act, 1872: When any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him.
55. In Schwartz v. R., [1988] 2 SCR 443, it was held that: "Although s. 106.7(1) of the Criminal Code
imposes the onus on an accused charged with certain weapons offences to prove that he possesses
a registration certificate, the provision is not a "reverse onus". The holder of a registration
certificate cannot be made subject to a conviction. He is not required to prove or disprove any
element of the offence or for that matter anything related to the offence. At most, he may be
required to show by the production of the certificate that the charging provision does not apply to
him and he is exempt from its provisions. This is not a situation where a person is deemed to be
guilty of an offence unless he establishes his innocence. He is in fact deemed to be not guilty of
an offence if he holds a permit of exemption, but the burden is cast upon him to establish that he
falls within the exemption given to him. Although the accused must establish that he falls within
the exemption there is no danger that he could be convicted despite the existence of a reasonable
doubt as to guilt, because the production of the certificate resolves all doubts in favour of the
accused and in the absence of the certificate no defence is possible once possession has been
shown. In such a case, where the only relevant evidence is the certificate itself, it cannot be said
that the accused could adduce evidence sufficient to raise doubt without at the same time establishing
conclusively that the certificate had been issued. The theory behind any licensing system is that
when an issue arises as to the possession of the license, it is the accused who is in the best position
to resolve the issue. Otherwise, the issuance of the certificate or license would serve no useful
purpose. Not only is it rationally open to the accused to prove he holds a license, it is the
expectation inherent in the system."
56. 'See for example Edwards, [1975] 1 QB 27, 35 (CA), where Lawton, LI, says: "If there ever was
a matter which could be said to be peculiarly within a person's knowledge, it is the state of his
own mind." Cited in supra note 53.
enunciated in Woolmington on a number of occasions. However, the

numerous reverse onus clauses found in Indian statutes discussed earlier attest
to the fact that the legislature has not hesitated to circumvent the presumption.18
In Kartar Singh v. Union of India," the court was required to interpret
s. 5 of TADA, which created the offence of "unauthorised conscious
possession" of specified arms and ammunition in a "notified area" by the
accused. Possession would create a presumption of guilt, which could be
rebutted only if the accused were to prove the non-existence of a fact essential
to constitute any of the ingredients of the offence. The court drew attention to
the grave implications that this presumption had on individual liberty:
"Mere possession of (unauthorised) arms and ammunition specified in
the section has been made a substantive offence. It is much more serious
in nature and graver in impact as it results in [the] prosecution of a man
irrespective of his association or connection with terrorist activity.. .the
harshness of the provisions is apparent as all those provisions of the Act
for prosecuting a person including forfeiture of property, denial of bail,
etc. are applicable to a person accused of possessing any arms and
ammunition as one who is charged for an offence under section 3 and 4
of the Act. It is no doubt true that no one has justification to have such
arms and ammunitions.. .but unjustified possession does not make a
person a terrorist or disruptionist."6 0
Notwithstanding the discomfiture of the court, it was unwilling to strike
down the provision when the next opportunity arose in Sanjay Dutt v. State
(II).61
"The construction we have made of s. 5 of the TADA Act, which gives

an opportunity to the accused to rebut the presumption arising against
him of the commission of an offence by mere unauthorised possession
of any such arms within a notified area, is manifest from the statement of
objects and reasons. This is in consonance with the basic rights of an
57. Willie Slaney v. State of Madhya Pradesh,AIR 1956 SC 116; M. G. Agarwal v. State of
Maharashtra,AIR 1963 SC 200; Kali Ram v. State ofHimachal Pradesh, (1973) 2 SCC 808;
HimachalPradeshAdministrationv. Om Prakash,(1972) 1 SCC 249; Shivaji Bobde v. State of
Maharashtra,(1973) 2 SCC 793; Kashi Nath Ray v. State ofBihar, (1996) 4 SCC 539.
58. Indeed, Woolmington recognises that a statute can derogate from the principle of presumption of
innocence.
59. 1994 SCC (Cri) 899.
60. Id. See Supra note 27, at 200 for a discussion of this-case.
61. 1994 SCC (Cri) 1433.
accused generally recognised. We must attribute to Parliament the

legislative intent of not excluding the right of an accused to prove that
he is not guilty under a graver offence."62
Although the court recognised the right to fair trial as inherent in the
Constitution6 3 and declared that procedure which denied fundamental fairness
and shocked the conscience was anathema to just, fair or reasonable procedure,
it did not explicitly refer to the presumption of innocence or the burden on
the prosecution of proving the guilt of the accused beyond reasonable doubt.
However, in R N. Krishnalal v. Government of Kerala,' the Supreme Court
categorically stated that the presumption of innocence was not a constitutional
guarantee and that therefore reverse onus clauses could not be declared ultra
vires.65
However, under Indian law there are supposed to be only two exceptions
to the presumption of innocence: (i) where the statute expressly derogates
from it; 66 and (ii) when the accused prefers an appeal against an order of
62. Id. See Supra note 27, at 201 for a discussion of this case.
63. Id. "Fair criminal trial is a fundamental right under Art. 21 of the Constitution. Though the State
is free to regulate the procedure for investigation of a crime, to collect evidence and place the
offender [on] trial in accordance with its own perception of policy, yet in its doing so if it offends
some fundamental principles of fair justice rooted in the traditions and conscience of the people,
it would be classified or characterised as or ranked as unjust and unfair procedure."
64. 1995 SCC (Cri) 466. In this case the appellants were licensees of arrack retail shops. They had
been charged for offences punishable under subsections (1) to (3) of s. 57A of the Kerala Abkari
Act for having mixed or permitted mixing of noxious substances with liquor or having failed to
take reasonable precautions to prevent such mixing. S. 57A of the Act stated: "(1) whoever mixes
or permits to be mixed any noxious substance or any substance which is likely to endanger
human life or to cause grievous hurt to human life or to cause grievous hurt to human beings, with
any liquor or intoxicating drug shall, on conviction, be punishable; (2) whoever omits to take
reasonable precaution to prevent mixing.. .(3) Notwithstanding anything contained in the Indian
Evidence Act, 1872 - (a) where a person is prosecuted for an offence under sub-section (1) or (2),
the burden of proving that he has not mixed or permitted to be mixed.. .with any liquor or
intoxicating drug shall be on him; (b) where a person is prosecuted for an offence under sub-
section (3) for being in possession of any liquor or intoxicating drug in which.. .the burden of
proving that he did not know that such substance was mixed... shall be on him." See Supra note
27, at 202-03 for a discussion of this case.
65. Id. "Liberty of an individual should be subject to social control otherwise he would become anti-
social and undermine the security of the State. The individual has to grow within the social
confines.. .Liberty must be controlled in the interest of the society but the social interest must
never be overbearing to justify deprivation of individual liberty."
66. See for example s. 35 of the NDPS Act. See also Willie Slaney v. State ofMadhya Pradesh,AIR
1956 SC 116.
conviction passed by a lower court, he does not enjoy a presumption of

innocence in the appellate court.' More importantly, there are good reasons
to argue that the presumption of innocence has become a fundamental right.
The Supreme Court has referred to the principle repeatedly as being part of
the basic law of the land." In K. Joseph Augusthi v. Narayanan1 9 a five-
judge bench categorically held:
"The object of Article 20(3) is in consonance with the basic principles of
criminal law accepted in our country that an accused person is entitled
to rely on the presumption of innocence in his favour."7 0
We have already seen how the presumption of innocence was accorded
constitutional protection in the United States by being read into the due process
clause. In Maneka Gandhi v. Union of India , the Supreme Court held that
"procedure established by law" contemplated by Article 21 for depriving a
person of his life or personal liberty had to be "reasonable, right, just and
fair"." In Sunil Batra v. Delhi Administration7 4 , Krishna Iyer, J., held that
after the Maneka thesis, the due process clause as well as Article 14 had to be
read into Article 21. If Article 21 incorporates the due process clause, then
the right to be presumed innocent until proven guilty beyond reasonable doubt
becomes a fundamental right. Moreover, this right could also be located in
the right to a fair trial,7 s which certainly predates the Maneka thesis.
Clearly, the absence of express legislative provisions with respect to the
presumption of innocence has led to conflicting interpretations by the judiciary
67. Lal Mandi v. State of West Bengal, (1995) 3 SCC 603; Dharam Pal v. State of UttarPradesh,
(1975) 2 SCC 596.
68. Supra note 57.
69. AIR 1964 SC 1552.
70. Id.
71. See text accompanying footnote 39.
72. (1978) 1 SCC 248.
73. Id. See also BachanSingh v. State ofPunjab, (1980) 2 SCC 684, where Sarkaria, J., inspired by
the Maneka thesis, declared that Art. 21 means that "no person shall be deprived of life or
personal liberty except according to just, fair and reasonable procedure established by valid law".
74. (1978) 4 SCC 494.
75. Ankul Chandrav. Union ofIndia, (1996) 6 SCC 354, where Verma, J., held that the presumption
of innocence was part of the right to a fair trial. See also Articles 9 and 14 of the International
Covenant on Civil and Political Rights (ICCPR), which provide what is universally accepted as
the minimum standards of a fair trial. See also Amnesty International, http://www.amnesty.org//
ailib/themes/indxftmb.htm (July 12,2000) and http://www.amnesty.org/ailib/aipub/1996/EUR/
42500696.htm (July 11, 2000).
on this issue. As the experience of other jurisdictions reveals,

constitutionalisation of the presumption of innocence could introduce some
clarity in this regard. Notwithstanding the rhetoric on the presumption of
innocence and the principles of fair trial and despite the considerable
advantages that the prosecution enjoys, the need has been felt on a number
of occasions to shift the burden of proof onto the accused. This has often
been justified on the basis of practical considerations. The tension between
the competing objectives of fair trial and administrative expediency could be
mitigated if the burden that is placed on the accused were in the nature of an
evidential burden. Once the defence has raised a reasonable doubt in the
mind of the judge, that ought to be sufficient to discharge the burden. As we
have seen, this is already the case in Canada and South Africa.7 6
If the right to be presumed innocent until proven guilty beyond reasonable
doubt were a part of Article 21, then an accused could not be deprived of this
right except by law that were just, fair and reasonable. The authors' thesis
does not call for an elimination of reverse onus clauses, but requires instead
that they be tested on the anvil of justness, fairness and reasonableness. While
it is difficult to formulate this test in the abstract, essentially, a court would
have to determine whether the societal interest sought to be protected by
reverse onus clauses justifies the curtailment of individual liberty. Indian courts
are well equipped to perform this fine balancing act, given their substantial
experience in fundamental rights jurisprudence.
76. See generallyIrit Weiser, "The Presumption of Innocence in Section 11 (d) of the Charter and
Persuasive and Evidential Burdens", 31 CriminalLaw Quarterly319-330 (1988-89).

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Bluebook 21st ed.

ALWD 7th ed.

APA 7th ed.

Chicago 17th ed.

McGill Guide 9th ed.

AGLC 4th ed.

MLA 9th ed.

OSCOLA 4th ed.

Reverse Onus Clauses in Indian Criminal Law

3. S. V. Joga Rao, CurrentIssues in CriminalJustice and Medical Law: A CriticalFocus 69-70

necessarily indicative of the domains within which reverse onus clauses

Essential Commodities Act, 1955 (hereafter ECA)

Food Adulteration Act, 1954 (hereafter FAA)

Customs Act, 1962

Foreign Exchange Regulation Act, 6 1973 (hereafter FERA)

Explanation (2) For the purposes of this section, a fact is said to be

Finally, s. 72 deals with presumptions as to documents in certain cases:

(b) admit the document in evidence notwithstanding that it is not duly

Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter NDPS

Comparative Law Perspectives

8. See http://www.lectlaw.com/def/i047.htm (July 10, 2000).

2. Where a statute specifically so designates 13 ;

"...a provision which requires an accused to disprove on a balance of

balance of probabilities, he would still be convicted despite the existence of a

The case of Vaillancourt v. R. 20 introduced the notion of substituted

essential eleient existed, with no other reasonable possibilities, would the

22. (1996] 1 All SA 11 (CC).

of proving all the elements of a criminal charge. A presumption which relieved

jurisdictions such as the US and Canada. It explicitly favoured the Canadian

European Convention on Human Rights

37. 397 US 358 (1970).

42. Sexual Offences Act, 1956, s. 30(2).

The Shifting Burden of Proof

The phrase "burden of proof' is somewhat ambiguous as it is used in at least

the less onerous burden of proving on a balance of probabilities that the

Indian Legal Position

enunciated in Woolmington on a number of occasions. However, the

"The construction we have made of s. 5 of the TADA Act, which gives

accused generally recognised. We must attribute to Parliament the

conviction passed by a lower court, he does not enjoy a presumption of

on this issue. As the experience of other jurisdictions reveals,

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