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  • Sir William Garrow was the first to introduce the concept of "Innocent unless proven guilty", which is a key element of criminal law, this principle specifies that "A person is considered innocent until enough evidence is presented to prove their guilt before the court of law", that the burden of proof lies with the prosecution to prove guilt beyond the reasonable doubt.  
  • “Ei incumbit probation qui dicit, non qui negat”, a Latin maxim which means that the burden of proof is on the person making a claim (that is Prosecution), not the one denying it (the Defendant), in the case of “Baby V. State of Kerala” (2010), the principle that every accused person is presumed innocent until he is proved guilty by the court of law. The United Nations have recognized the presumption of innocence and this principle is a fundamental human right under Article 11 of the Universal Declaration of Human Rights.
  • Under Article 20(3) of the Constitution of India which states that "A person cannot be forced to give statements in the court of law against themselves" under "Right against Self-Incrimination", this right of the constitution ensures that the prosecution must prove the guilt of the accused person before the court, in a landmark case of "Data Ram V. State of Uttar Pradesh", here the Supreme Court gave it judgement stating that "The presumption of innocence as a key aspect of criminal law".


The Latin principle “Ei incumbit probatio qui dicit, non qui negat” translates to “Responsibility of proof in one who asserts, not in one who denies”. This principle can be defined as the principle that holds that every person is innocent in the eye of the law until proven otherwise. It is an important principle of criminal law followed in several global jurisdictions including India and within common law and civil law systems. It also recognizes it as an international human right in the Universal Declaration of Human Rights (UDHR), particularly in Article 11.  The principle has its origin in the digests of Justinian in the 6th century when Emperor Antoninus Pius adopted it into Roman criminal law. Divorce laws are extremely important in various legal systems across global jurisdictions. That is why, the general norm of bail law is the principle of the presumption of innocence meaning that a person should be released on bail and allowed to go freely until the prosecution proves that the accused person committed a criminal offence in the court. This entails having compelling and substantive pieces of evidence and influential witnesses in a case. There are numerous principles of the criminal justice system, nevertheless, the principal one of them is the principle of benevolent prejudice.

Some of the principles of the criminal justice system in India include the following; Everyone is innocent until proven guilty: this principle held in the criminal justice system anywhere in the world is also upheld in India. However, there are some Indian laws which go against this principle for dealing with ‘exceptional’ crimes. These deviations occur at two stages: release on bond and sentencing. The legal decisions of granting bail and determining guilt are two different legal aspects but are both the responsibility of the court. 

For granting bail, special laws often include “twin conditions” for bail: 

  1. The prosecution must be permitted to appeal against the bail application and the judge has to have reasons to believe in the innocence of an accused person. 
  2. The second condition substantially means that the accused is guilty, though he or she can seek bail to be released from custody. 

Justice is put in a close relation with the concept of rights as justice implies equality of rights and obligations. One important aspect that must be balanced in criminal trials is the rights of the two parties. Injustice occurs when any of the rights of any party are neglected or even worse, disregarded. For example, a defendant has a right to be assumed innocent unless proven guilty is one of the principles that underpin the criminal justice system. Although this principle is not directly prescribed in the Code of Criminal Procedure of India, it is outlined in certain provisions, namely, Sections 101 and 102 of the Indian Evidence Act, which highlight that any individual who intends to seek a court verdict on any rights or obligations accords with the law proposed must affirm the facts of their claim. Therefore, the suppose, or the assertor, has the responsibility to prove their statement. However, certain laws and regulations trespass this rule by shifting the burden onto the accused rather than the prosecution. According to the common law maxim “Ei incumbit probatio qui dicit, non qui negat” meaning it is the burden of proof that rests on the one who asserts an affirmative, not on the one who denies it, the Supreme Court has affirmed this stating thereby to agree with that of Domain Resource. Technically, ‘Innocent until proven guilty’ purports that a person is innocent in front of the law before being found guilty, which was captured by the jurist Blackstone as he said, that it is better to let ten Culprits go loose than to wrongfully condemn an innocent person. The House of Lords in the case of “Woolmington v. DPP” then supported the presumption of innocence, which is said to be part of the criminal law’s cornerstone. The Indian Supreme Court has also endorsed this principle by stating that the expression of freedom of speech is subject to law. 

As opposed to all other common legal presumptions which means that no proof is needed, the presumption of innocence does not place the burden of proof on the prosecution; in fact, it originates there. This principle particularly ensures that the defendant is in the same position as when the suit was initiated.  In “Noor Aga Khan v. State of Punjab” which is upon presumed guilty, the Honourable Supreme Court of India observed that the principle of presumption of innocence may not be provided in the Indian constitution for the Indian legal system explicitly, but it is needed for right justice and maintaining the confidence of the people in the legal system of the country. Some of the rights that are encompassed under the right to a fair trial include the right to be presumed innocent. This presumption enables a defendant to refrain from saying anything and be protected from self-incrimination and the community, protecting its members from oppressive governmental authority. This principle elicits the provision of constructive constitutionalising of criminal jurisprudence in India whereby it is a principle of law that the prosecution must prove all elements of the offence. As far as the accused is concerned, he does not have to say anything or defend himself until the prosecution has earnestly done its part to prove that the accused is guilty. Being a fair trial also implies excluding the prejudice or expectations regarding the guilt of the culprit. Mistaken verdicts are harmful to public interest and jumping to conclusions prejudges a case and is a departure from justice. 

 The purpose of this directive is to set the fundamental minimum requirements for the application of the presumption of innocence rule and the right to be present at trial in criminal cases. There are also some laws, which have presumptions of guilt and the accused persons can only demonstrate that they are not guilty. For instance, while Section 35 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act looks at mens rea (intent) of the accused, Section 54 looks at presumption when the accused is found in possession of prohibited substances Section 29 of the Protection of Children from Sexual Offences (POCSO) Act presumes certain offences and Section 30 to presume mens rea.  The validity of these departures therefore rests on whether the right against preferential assumption of guilt is a constitutional one. In “Sahara v. SEBI (2012)” the power of presumption of innocence has been held under both Article 21 and Article 14 of the Constitution of India which provide Rights of equality. In the case of “Gurbaksh Singh Sibbia v. State of Punjab”, decided on August 25, 2015, by a Constitution Bench of the Supreme Court, it was held that in criminal law the accused has a right to be presumed innocent till proven guilty but the Constitution Bench during its judgment did not directly draw the presumption of innocence under Article 21 of the Constitution. The Court observed this during the time of its analysis of the provision of Section 438 of the Code of Criminal Procedure, 1974 that relates to anticipatory bail, wherein the Court stated that bail should not be made arbitrary through, and the conditions mentioned in the section. This was an indirect way of stating that Article 21 was linked or related to the presumption of innocence. 


The principle of innocent until proven guilty has historical roots as old as the sixth century. That is why the Maxim “Ei incumbit probatio qui dicit, non qui negat” which means “It is for the plaintiff to prove his accusation, not for the defendant to prove his innocence” is included in the Digest of Justinian. Although was introduced into the criminal law of Rome by Emperor Antoninus Pius the phrase “presumed innocent until proven guilty” was famously coined by the British Barrister Sir William Garrow Another French jurist Jean Lemoine also pointed it out with “Item quilbet presumitur innocens nisi probetur nocens” which means “One is innocent until proven as guilty and also nourishing the rights to the accused person like rights to an advocate and right to be informed of the allegation(s) against him/ her”. In Islamic law, the principle of no presumption of guilt is upheld to a great extent. In one of the documented “Ahadith by Imam Nawawi”, the point is made that the onus of proof always lies with the accuser and suspicion is expressly forbidden. The fourth Caliph, ‘Ali ibn Abi Talib’, recommended that no punishment be issued based on disputable proofs. 

This is an important principle in justice since it provides a balance and protection for the accused, that the accused is innocent until proven guilty promotes fairness and the right to liberty as enshrined in the Constitution. India inherited the tradition of presumption of innocence from the British common law and it is a part of the law in India. Indian law adopted the presumption of innocence from the British common law system which was introduced in India during British rule. Surprisingly, while Indian criminal law does not directly articulate this principle, it is implicitly enshrined in it. The presumption is supported by the provision of Article 20(3) of the Constitution of India which safeguards against self – incrimination thus placing much burden on the side of the prosecution. This principle is very important because it means that the prosecution has to give enough evidence that indicates the accused person is guilty. If the presumption of innocence were removed, it would mean that the Indians no longer have a true right to a fair trial as provided by Article 21 of the Constitution which gives protection to life and personal liberty. This principle is also accepted internationally as well. 


Article 21 of the Constitution of India ensures that the State can interfere with the right to life and personal liberty i.e. confining a convict violates the provision only by taking a lawful, reasonable and just procedure. However, assuming that one is willing to leave out certain judgments, it becomes easy to see how Article 21 along with the element of reasonableness and fairness directly connects with the principle of the presumption of innocence. Two basic reasons would show why the guilty beyond a reasonable doubt is philosophically fundamental to fairness in criminal law. This gives rise to the Gandhian case of Maneka Gandhi where any law that tries to infringe on personal liberty must pass through this article as well. This is to mean that every classification that is made by the law must have an objective and rational justification. Article 14 also outlaws unreasonable classification arising from the compounding of laws. Since two offenders are treated differently, and two statutes operate concerning the presumption of innocence, such classifications have to satisfy Article 14. 

Criminal law aims at penalizing the deserving offenders while exonerating those who are not guilty. Even if they are truly guilty of some criminal activity, innocent people may be convicted, or the implicated individual may be acquitted of a crime that he or she indeed committed. These two models of procedural justice include the “Crime control” model which it is preferred that the guilty be condemned and punished although some innocent people may be incarcerated, and the “due process” model in which it is more desirable that the accused person be protected regardless of whether they both have the purpose of delivering justice by ensuring that the guilty faces justice while on the other hand the innocent is set free; these two models do not have the aim of punishing the innocent or sparing the guilty. Hence, if the presumption of innocence is to be done away for offenders of what is considered as ‘heinous’ offences, it has to be done so for all other offences. In simple terms, the seriousness of the alleged offence does not influence the probability of the allegations being true or false. There is no nexus between the worthy goal of punishing the guilty and protecting the innocent on the one hand and the differentiation of the offences based on the relative seriousness of the crime committed on the other. 

As for the right to bail, the State’s interest is more significant regarding preventing the accused from committing other equally grave offences. However, an interest can be effectively dealt with under traditional bail rules, including the severity of the offence and a preliminary view of the evidence against the accused. Instead, the intensity and gravity of the offence should mean enhanced protection of the defendant's rights. The weakness of the Article 14 argument is that it is a relative argument and it presumes that some laws will continue to offer the presumption of innocence. If this presumption is taken out from all criminal laws, there would be no benchmark or classification to check against Article 14. Consequently, it is necessary to look for an argument that has no relation to Article 21 and that forms the basis of the presumption of innocence. 

Blackstone also mentioned that “Ten guilty persons should escape than that one innocent person suffers,” and this fact establishes the reason why one is innocent until proven guilty. The right to a fair trial and the right of presumption of innocence is enshrined under Article 14 of the Indian Constitution under the right to equality. As per the constitution of India, Article 20, no person can be held guilty of an act or offence except for violating a law in existence at the time the act was committed and no person can be deprived of any punishment if the punishment given to him through law at the time at which the offence was committed was less than this. The above facts have been established in the judgment followed in the case of “Nandini Satpathy v. P.L. Dani”, wherein it was held that no forceful statement can be taken out from the accused and the accused has the right to refuse during investigation. That means in cases of the act that was not an offence at the time it was committed, it means that it should not be an offence in the future as well. The Constitution under Article 20(3) exempts compelled self-incrimination, that is, a citizen cannot be forced to give information that incriminates him or her. This principle is known as “Nemo tenetur seipsum accusare” which means, “No man is bound to accuse himself”. The protection that permits individuals not to testify against themselves is called the “Right to Silence,” and it is provided for under the Indian Code of Criminal Procedure and the Constitution of India. Section 161(2) of the Code of Criminal Procedure, requires every individual to give information, orally or in writing, to any police officer as and regarding any matter of which that officer is lawfully entitled to ask, provide a statement or answer to any question save that it would be unlawful for him to do so were he to answer truthfully the question posed to him by a police officer. But where the accused makes a statement and it can be shown that he has made the statement of his own volition without any threat, offer or inducement, Article 20(3) does not apply. In the case of “Maneka Gandhi” the SC said that aspect 20(3) of the Constitution, which is construed in part as the right of putting to the test any person’s own evidence before implementing negative inference against him, should be seen in conjunction with article 21.  However, in the case “State of Bombay v. Kathi Kalu Oghad” where the Supreme Court was faced with this question, an affirmative answer was given that is, both, Articles 20(3) and 21 of the Constitution stand violated by involuntary neuroscientific tests. The “Selvi and Anr v. State of Karnataka” case was the one which emerged as the decision-making authority for the prohibition of certain techniques of investigation, for instance, narcoanalysis, BEAP, brain mapping, polygraph, and lie detector tests without the valid consent of the accused. The Court said that the right to mental solitude comes within the purview of Article 21 and the fundamental right to life enshrined in clause (3) of Article 20 of the Constitution. 


Since India is gradually expanding its international presence, it becomes important not only to follow but also to respect the human rights norms. It is not enough to simply pursue economic growth for our country; we must also guarantee equal respect for the human rights of our people. The moral doctrine of human rights pursues to determine the constitutional requirement towards each person to ensure the minimum of a good life. Human rights therefore seek to define both the norms that the ideal minimal human condition should exclude as well as those that it should include like the right against torture and the right to health respectively. This principle is not only reflected in a wide range of declarations and legal charters adopted in the course of the last fifty years, starting with the Universal Declaration of Human Rights 1948 but is especially focused in the European Convention on Human Rights 1954 and the International Covenant of Civil and Political Rights 1966. With these three documents, people see that there is a moral code which could offer significant potential for a modern geopolitical world, equivalent to the US Bill of Rights. Human rights refer to the basic rights of a human being entailed by the constitution or other international documents fronted in courts. In this respect, the courts have carved the widest zone while interpreting the concept of human rights. Presumption of innocence is an established principle of law, people cannot have any rights violated in any case. This right is captured in the Universal Declaration of Human Rights as prescribed in Article 6 (The right to recognition before the law), Article 7 (The right to equality before the law), Article 10 (The right to a fair trial) and Article 11(2) which highlights the right of an individual to the privilege against being presumed guilty and against self-incrimination. These rights remain of incredible importance not only for a certain state but for the entire world. Furthermore, other international legal safeguards as provided under the International Covenant of Civil and Political Rights entail; Article 9- Right against arbitrary trial and detention Article 14- Right to the presumption of innocence for the accused and the right to a fair trial. Since conventions considered as part of the domestic law may correspond to provisions of the Constitution, the courts should take notice of the international regimen so as not to violate the rights of individuals to the least extent possible.


In conclusion, Rights to the presumption of Innocence is deemed to be one of the most esteemed and notable principles of justice all over the world. Embedded from the old law and forming the premise of modern law systems, it protects the rights of the parties in legal matters and preserve law as an equitable and neutral business. That brings us to the fact that the presumption of innocence has found its legal basis in India through the Indian constitution under Article 20(3) which prohibits self-incrimination. However, there are some deviations from this principle made for the sake of justice and equity in specific situations still, it is one of the important principles of the Indian legal procedure accompanied by numerous judicial judgments.

On an international level, the principle of innocent until proven guilty is accepted as one of the human rights that are upheld in many global documents such as the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights. With India now rising up as an international power it becomes even more important to respect and follow these human rights standards and legal frameworks that provide equal justice for every human being. To summarize, therefore, the assumption of innocence is not simply a legal principle but rather a principal function to be observed and followed where the rights and freedoms members of societies everywhere should be protected. It acts as the symbol of justice and ethical practices in doing the right thing, following human rights and respecting the inherent dignity of the human person and the equal and inalienable rights of all.

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