Presumption of innocence

“Ei incumbit probatio qui dicit, non qui negat” is a Latin term which means the burden of proof lies upon the person who affirms but not who denies. This has been the basis of the principle of presumption of innocence.

The presumption of innocence is one of the most essential and ancient legal as well as human rights principles embodied in criminal justice systems around the world. It essentially means that every person accused of any crime is considered innocent until proven guilty. The right to be presumed innocent until proven guilty is a  principle that influences the treatment to which an accused person is subjected from the criminal investigations through the trial proceedings, up to conviction.

In general, a presumption is a rule which permits a court to assume that a fact is true until a preponderance of evidence disproves or outweighs (rebuts) the presumption. The prosecution must in most cases prove that the accused is guilty beyond a reasonable doubt. If reasonable doubt remains, the accused must be acquitted. The opposite system is a presumption of guilt.

In Indian criminal justice jurisprudence, the concept has not been defined in any statute, rather is an accepted principle which was adopted from the British criminal justice jurisprudence.

Where does the principle come from?

The concept was put forward as early as the 4th century BC by the Greek orator Demosthenes as he mentioned that, “one merely accused of murder cannot yet be called a murderer, for no man comes under that designation until he has been convicted and found guilty."

In 212 AD, the constitution of the Roman Emperor Antonin enshrined the legal maxim actori incumbit probatio, or, “he who wishes to bring an accusation must have the evidence.”

However, in the 13th and 14th centuries with the development of the jus commune, the presumption of innocence first crystalized into a fundamental legal principle. It was the French lawyer Johannes Monachus who first used the phrase item quilbet presumitur innocens nisi probetur nocens—“a person is presumed innocent until proven guilty.”

The emergence of the presumption of innocence coincides with the earliest development of bourgeois law. The presumption was advanced in opposition to the medieval torture chamber, where the accused person was simply tortured until he “confessed.” Under this regime of torture, the court proceeding consisted merely of the confessed sinner being brought before a tribunal to acknowledge his confession.

In the 18th century, the revolutionary European and American bourgeoisies were determined to deliver a blow against centuries of feudal backwardness and arbitrary dynastic rule. Their chief ideologists, schooled in the ideas of the rational Enlightenment, recognized the presumption of guilt as a characteristic of tyranny that is wholly inconsistent with democracy and the rule of law.

Sir William Garrow, a British Barrister coined the phrase “presumed innocent until proven guilty” in which he was of the view that the judge or juror must conclude, beyond reasonable doubt that the accused has committed the said crime.  In the case of Woolmington v. Director of Public Prosecutions, the English Court of Appeal held that the presumption of innocence is the “golden thread” running across the web of English criminal law. Indian criminal jurisprudence has also adopted this principle from the British jurisprudence.

Official Definition for the principle of presumption of Innocence

The term ‘presumption of innocence’ is not defined. However, it finds legal recognition under various legal provisions.

Constitution of India

In India, the above-mentioned principle can be inferred from Article 20(3) of the Constitution of India, which states that no person can be compelled to self-incriminate. It is the right against self-incrimination, which, if not granted, would place the burden on the accused, instead of the prosecution.

Without the presumption of innocence, a reverse burden would violate both the right to a fair trial as guaranteed by Article 21 of the Indian Constitution and the right to live in dignity. However, during the 2000s, the Supreme Court stuck with the stance that the right to be presumed innocence is only a human right, in relation to the accused in a trial, which was reflected in a few judgements. It was only in 2010, that the first judgment, of Manu Sharma v. State (NCT) of Delhi, where the Court was considering the impact of a media trial on the accused, came with a view that destruction of the presumption of innocence of the accused would go against the rule of law as well as Article 21 of the Constitution. Subsequently, the Constitution Bench in the case of Sahara India Real Estate v. SEBI expressed, in clear words, that the presumption of innocence principle is a part of the rule of law under Article 14 and the right to life and personal liberty under Article 21.

Indian Evidence Act, 1872

This burden of proof is mentioned in the Indian Evidence Act of 1872, under Sections 101 and 102. Section 101 states that where a person desires a court of law to give a judgment regarding any legal right or disability, based on certain facts, must be able to prove those facts beyond reasonable doubt. When such a person is bound to prove such facts, the burden of proof lies on that person. Section 102 explicitly mentions that the burden of proof lies on that person who, if no evidence on either side were to be produced, would fail in the suit. What these two sections point to are two types of burdens of proof: one to establish a case, Section 101, which does not shift, and remains on the prosecution, and the other, to present evidence, Section 102, which can shift on either of the parties, depending upon the stages of the case.

The presumption of innocence principle stands beside the first type of burden of proof more emphatically, since the accused is to be deemed innocent until the prosecution has basis for the guilt of the accused, and such basis is proven in a court of law. However, as for the second type of burden of proof, the accused does not have a liability to produce evidence in his/her favour, even though it is allowed, but not producing evidence cannot be held against the accused.

International Instruments

1. The Universal Declaration of Human Rights (UDHR)

The UDHR is, as usual, the starting point. Article 11 (1) 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”.

2. International Covenant on Civil and Political Rights (ICCPR)

The ICCPR is the international legal instrument which further elaborates the UDHR provision. Article 14 states, "Everyone charged with a criminal offence shall have the right: (2) to be presumed innocent until proven guilty according to law. (3)(g) Not to be compelled to testify against himself or to confess guilt”. In General Comment n. 13, the Human Rights Committee (HRC) clarified that Article 14 aims, in all its aspects, “at ensuring the proper administration of justice” and it applies before all Courts and Tribunals. The HRC clearly stated that the presumption of innocence is fundamental to the protection of human rights, but in some countries, it is expressed “in very ambiguous terms or entails conditions which render it ineffective”. The Comment clarifies that the burden of proof of the charge is on the prosecution and the accused has the benefit of the doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt, and therefore all public authorities have to refrain from anticipating the outcome of trial. Further, the presumption of innocence implies a right to be treated in accordance with this principle.

A corollary of the presumption of innocence is that the accused cannot be compelled to testify against himself or to confess guilt. “In considering this safeguard the provisions of Article 7 and Article 10(1), should be borne in mind”, the HRC said in General Comment n. 13. Furthermore, Article 10(2)(a) ICCPR states that “accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.” It is again the Human Rights Committee which, in General Comment 21, affirmed that Article 10 ICCPR emphasizes the right to be presumed innocent as stated in article 14 when it provides for a different treatment for unconvicted persons, except for extraordinary circumstances.

Non Derogability

In General Comment n. 29, while interpreting article 4 ICCPR, the HRC has clarified that article 4 “is related to, but not identical with, the question whether certain human rights obligations bear the nature of peremptory norms of international law” and how it is clear “that some other provisions of the Covenant were included in the list of non-derogable provisions because it can never become necessary to derogate from these rights during a state of emergency.” According to the HRC, the category of peremptory norms extends beyond the list of non-derogable provisions as given in Article 4, and includes fundamental principles of fair trial, such as the presumption of innocence.

Regional Instruments

All relevant regional human rights instruments envision the right to be presumed innocent until proven guilty.

1. American Convention on Human Rights (ACHR)

Article 8(2) of the ACHR also establishes that “Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law.”

2. African Charter on Human and People’s Rights

Article 7(b) provides “The right to be presumed innocent until proved guilty by a competent court or tribunal.”

3. Charter of Fundamental Rights of the European Union

Article 48(1) states, "Everyone who has been charged shall be presumed innocent until proved guilty according to law.”

4. European Convention on Human Rights (ECHR)

Article 6(2) says, "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

According to the European Court of Human Rights (ECtHR) this is a right which, like other rights contained in the Convention, “must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory”. The ECtHR, thus clarified that the presumption of innocence will be violated, for instance, “if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law”, and it is sufficient, “even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty.”

Data challenges

• In Indian jurisprudence, presumption of innocence is not defined anywhere. Every data presented is a derivative of either scholarly writings or case laws, thus is an interpretation of the same.
• As it has not been defined anywhere, thus it has not been consistent throughout as well.

Way ahead

• Even though the presumption of innocence is a fundamental principle of criminal law, there are certain deviations as a component of a larger move towards “special” criminal laws to deal with “extraordinary” offences which, it is sometimes suggested, ordinary criminal law cannot adequately deal with.
• In certain situations, while granting bail, the court presumes guilt on the part of the accused which is commonly known as the presumption of guilt, which is an area of debate in Indian criminal jurisprudence in the present time.

Also knows as

Innocent until proven guilty, the benefit of the doubt

References

1. Watson, Alan, ed. (1998) [1985]. "22.3.2". The Digest of Justinian. Philadelphia: University of Pennsylvania Press. ISBN 0-8122-1636-9.
2. Kenneth Pennington, Innocent Until Proven Guilty: The Origins of a Legal Maxim.
3. Data Ram Vs. State of U.P. and others, 2018 (3) SCC 2.
4. Pooja Amaravathi and Ananya Mishra, The Presumption of Innocence and its Role in the Criminal Process, 4 (3) IJLMH Page 1135 - 1149 (2021)
5. State of Maharashtra v. Vasudeo Ramchandra Kaidalwar, 1981 3 SCC 199.
6. Babu Lal v. State, AIR 1960 All. 223.
7. Noor Aga v. State of Punjab, (2008) 16 SCC 417; Vinod Solanki v. Union of India, 2009 (233) ELT 157 (SC).
8. Manu Sharma v. State (NCT) of Delhi, 2010 AIR (SC) 2352.
9. Sahara India Real Estate v. SEBI, Civil Appeal No. 9813 of 2011.
10. Human Rights Committee, General Comment N. 13, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/bb722416a295f264c12563ed0049dfbd?Opendocument
11. Human Rights Committee, General Comment N. 21, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/3327552b9511fb98c12563ed004cbe59?Opendocument
12. Human Rights Committee, General Comment N. 29, http://www.unhchr.ch/tbs/doc.nsf/0/71eba4be3974b4f7c1256ae200517361/$FILE/G0144470.pdf
13. Eur. Court HR, Case of Allenet de Ribemont v. France, Application no. 15175/89, judgment of 10 February 1995, para. 35, http://oxfordindex.oup.com/view/10.1093/law:ihrl/3097echr95.case.1