A few days ago, Delhi Police Commissioner B S Bassi gave some unsolicited advice to the five Jawaharlal Nehru University (JNU) students who had just surfaced on campus after being in hiding since the students union president, Kanhaiya Kumar, was arrested: “Police are looking for them, they should join the investigation. If they are innocent, they should produce evidence of their innocence.”
Two of the five students, Umar Khalid and Anirban Bhattacharya, have since surrendered to the police.
But despite what Bassi said, the fact is that under the law, the students are not the ones who are required to prove their innocence. Rather, it is up to the police to prove their guilt. The one exception where the burden of proof lies with both sides is civil disputes — cases involving property disputes, etc.
The Supreme Court has held on a number of occasions that any attempt by the prosecution to place the onus of proving innocence on the accused would be tantamount to violation of the Fundamental Right granted under Article 21 (Protection of Life and Personal Liberty).
In P N Krishna Lal and Others versus State of Kerala (1994), the Supreme Court held: “The settled law is that the prosecution must prove all the ingredients of the offences for which the accused has been charged with. The proof of guilt of the accused should be on the prosecution and be beyond reasonable doubt. At no stage of trial, the accused is under an obligation to disprove his innocence. Unlike in a trial of civil action, the burden of proof of a case always rests on the prosecution and it never gets shifted.”
The Bench added, “To place the entire burden on the accused… to prove his innocence, therefore, is arbitrary, unjust and unfair infringing upon his right to life and unfair and unjust procedure violating the guarantee under Article 21 (of the Constitution).”
That said, since the names of the JNU students figure in the FIR, they can always be summoned by the investigating officer to join the investigation — and should they fail to do so, arrest warrants can be issued against them.
On the question of the onus or burden of proof in criminal cases, however, the settled law remains that an accused is presumed innocent till proven otherwise. Ei incumbit probatio qui dicit, non qui negat — literally, the proof lies upon the one who affirms, not the one who denies — is one of the basic principles of natural justice.
In State of Madhya Pradesh versus Ramesh and Another (March 18, 2011), the Supreme Court underlined that even the silence of an accused cannot be used to hold him guilty. “The cumulative effect of reading the provisions of Article 20(3) of the Constitution with Sections 161(2); 313(3); and proviso (b) to Section 315 CrPC remains that in India, law provides for the rule against adverse inference from silence of the accused,” it held.
There are, indeed, circumstances, upheld by the apex court, where the state can place the burden of proving innocence on the accused — something that is allowed under Section 106 of Indian Evidence Act. This clause says that in some cases, where a fact is “especially within the knowledge of any person”, the burden of “proving that fact is upon him”.
Another Section of the Evidence Act — 111A — which deals with “Presumption as to certain offences”, says that in cases under certain sections of the Indian Penal Code (IPC) dealing with offences against the state, a person accused of having committed such an offence “shall be presumed” to have committed such an offence.
Some cases like the erstwhile Terrorist and Disruptive Activities (Prevention) Act fall under such categories, as do offences under IPC Sections 121 (Waging, or attempting to wage war, or abetting waging of war, against the Government of India), 122 (Collecting arms, etc. with intention of waging war against the Government of India) and 123 (Concealing with intent to facilitate design to wage war).
In K Veeraswamy versus Union of India (1991), a matter in which the constitutionality of some Sections of the Prevention of Corruption Act was under challenge, a Constitution Bench of the Supreme Court ruled that “a statute placing the burden on the accused cannot be regarded as unreasonable, unjust or unfair nor can it be regarded as contrary to Article 21 of the Constitution”.
But the Bench referred to the Supreme Court’s judgment in Shambhu Nath Mehra versus State of Ajmer (1956) to underline the fact that this could happen only in a few “very exceptional” cases.
“Section 106 of the Evidence Act does not abrogate the well-established statute of criminal law that except in very exceptional classes of cases, the burden which lies on the prosecution to prove its case never shifts and Section 106 is not intended to relieve the prosecution of that burden,” it held.
But, for all practical purposes, the law is that the burden of proof is on the prosecution, and not on the accused. Even the Universal Declaration of Human Rights (UDHR), adopted by the United Nations General Assembly in 1948, underlines this. Article 11 of the Declaration says, “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.”