“Effective legality of presumptions -

pros and cons”

Submitted by

Jithin George Jackson K

3rd Year B. A. LLB (Hons). Batch 2013-2018 (BA0130027)

Under the supervision and guidance of

Madam Deepa Manickam

Assistant Professor of law

THE TAMIL NADU NATIONAL LAW SCHOOL

Dindigul Main Road, Navalurkuttappattu, Srirangam Taluk,
Tiruchirappalli - 620 009, Tamil Nadu, India.
2016
 DECLARATION

I, Jithin George Jackson K, Registration number, BA0130027, hereby declare that this project
work entitled “EFFECTIVE LEGALITY OF PRESUMPTIONS - PROS AND CONS” has been
originally carried out by me under the guidance and supervision of, Madam Deepa Manickam
Assistant Professor of Law, Tamil Nadu National Law School, Tiruchirappalli – 620009. This
work has not been submitted either in whole or in part of any Degree/ Diploma in this institution
or any other Institution/University.

Tiruchirappalli Jithin George

Jackson K

19th March 2016

2
 ACKNOWLEDGEMENT

"I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals and organizations. I would like to extend my sincere thanks
to all of them.

I am highly indebted to (Deepa Manickam) for their guidance and constant supervision as well as
for providing necessary information regarding the project & also for their support in completing
the project.

I would like to express my gratitude towards my parents & members of (Tamil Nadu National
Law School) for their kind co-operation and encouragement which help me in completion of this
project.

I would like to express my special gratitude and thanks to industry persons for giving me such
attention and time.

My thanks and appreciations also go to my colleague in developing the project and people who
have willingly helped me out with their abilities."

THANK YOU

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 TABLE OF CONTENTS

I. INTRODUCTION...................................................................................................................5
RESEARCH OBJECTIVES........................................................................................................5
RESEARCH QUESTIONS..........................................................................................................6
HYPOTHESIS.............................................................................................................................6
RESEARCH METHODOLOGY.................................................................................................6
II. KEYWORDS...........................................................................................................................6
 BURDEN OF PROOF......................................................................................................6
 DEGREE OF ASSISTANCE............................................................................................7
 REBUTTABLE PRESUMPTIONS OF LAW.................................................................7
 IRREBUTTABLE PRESUMPTIONS OF LAW.............................................................8
 PRESUMPTIONS OF FACT...........................................................................................8
III. LAW OF PRESUMPTION..................................................................................................8
i. Meaning, Nature, Scope, Application & Classification....................................................9
IV. LEGALITY OF PRESUMPTION......................................................................................11
a. Whether legality of presumption is justified? If so,...........................................................12
b. Whether presumption is constitutional? If so,....................................................................12
c. Whether Presumption can be legally effective? If so,........................................................13
d. What constitutes “effective legality”?................................................................................13
e. Pros and Cons of “effective legality”.................................................................................14
V. CONCLUSION......................................................................................................................14
BIBLIOGRAPHY..........................................................................................................................16

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 I. INTRODUCTION

The term “presumption” may be defined to be an inference affirmative or disaffirmative of the

truth or falsehood of a doubtful fact or proposition, drawn by a process of probable reasoning
from something proved or taken for granted. Presumptions are broad and can be classified into
two major heads, Firstly, natural and secondly, artificial.

Law of presumption seeks to answer a plethora of question. In this endeavor certain

questions drawn for an answer. Understanding the key concepts is done by a set of question to
draw the framework of law. What is the stand of proof and how is it relevant over presumptions?
What is the degree of presumption when there is a situation of proof of fact without evidence?
What is presumption of facts? What are presumptions of intention? What presumptions are
relevant over law? What are rebuttal presumptions? What are evidential presumptions? What are
conclusive presumptions? What is the effect of presumption of guilty knowledge? What is the
validity of presumption relating to documents? These questions are mooted upon to over
different jurisdiction to derive a conclusion over an analysis.

Accordingly, the legality of the presumption is questioned and compared to settle the
difference in various jurisdictions of civil and common law countries. An analogy is vexed to be
drawn from pros and cons of presumption being accepted in certain cases over the judicial
jurisdiction of civil and common law countries. Further, a brief outline is also drawn out in
regard with the constitutionally of presumption under the India jurisdiction. In this regard a
number of case laws are counted upon. Thus this paper finally addresses three basic questions,
firstly, whether law of presumption is absolute? If so, secondly, whether law of presumption is
universal? If so, thirdly whether effective legality can be achieved for the law of presumption in
India?

RESEARCH OBJECTIVES
The objective is to analyze effective legality within presumption. Further, to delve into the pros
and cons in its application under the various jurisdictions in comparison with Indian evidentiary
jurisprudence.

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 RESEARCH QUESTIONS
 Whether legality of presumption is justified? If so,
 Whether presumption is constitutional? If so,
 Whether Presumption can be legally effective? If so,
 What constitutes “effective legality”?
 What are the Pros and Cons of “effective legality” within presumption?

HYPOTHESIS
Raman who is in possession of stolen goods soon after theft is presumed to be a thief or part of a
robbery. Further, the court may presume that the evidence submitted against him could be and is
not produced, would if produced, be unfavorable to Raj who withholds it. If Raman had refused
to answer a question which he is not compelled to answer by law, the answer, if given, would be
unfavorable to him is yet another presumption by the Court of the existence of certain facts. The
legality, constitutionality and effectiveness shall be adjudged by this hypothesis.

RESEARCH METHODOLOGY
Research methodology is to analyse the effective legality of presumptions with the help of
secondary sources to prove the hypothesis.

II. KEYWORDS
It is important for the thesis to understand the elements which synthesis the concept of
presumption. For that purpose certain key concepts are recommended to be noted.

 BURDEN OF PROOF
Burden of proof has two distinct meaning. [1] The burden of establishing a case. [2] The burden
of introducing evidence. The initial burden of proving the case is on the plaintiff. The initial
burden is also coined as “onus probandi”. Once the plaintiff discharges onus and a prima facie
case is made shifting the burden to the defendant to prove circumstances. The rule of burden of
proof is closely related to the presumptions available on the point. They are presumptions
binding on the court. But the party, against whom these presumptions lie, can adduce evidence to

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the contrary, failing which the point will be decided against him. The burden of proof lies on the
party against whom such a presumption lies.1

 DEGREE OF ASSISTANCE
 Standard of Proof

According to Phipson on Evidence, “standard of proof” is used to describe the degree to which
the proof must be established. The criminal jurisprudence no doubt requires a high standard of
proof for imposing punishment on an accused, but it is equally important that on hypothetical
grounds and surmises prosecution evidence of a sterling character should not be brushed aside
and disbelieved to give undue benefit of doubt to the accused.2

 Presumptive evidence

Presumptive or prima facie evidence is the evidence which is declared to be sufficient evidence
of a fact, unless and until an opponent adduce contradictory evidence, in which case the tribunal
of fact must weigh all the evidence tendered by all parties, in order to decide whether the fact has
been proved.3

 REBUTTABLE PRESUMPTIONS OF LAW

Section 4 of refers them by the expression “shall presume”. It says, “Whenever it is directed by
the Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it
is disproved.” Unlike presumptions of fact here the judges has no discretion but to act upon the
presumptions until contrary is proved by the party against whom the presumption lies. In all
criminal trials where the court proceeds with the trial, it starts with the presumption that the
accused is innocent. This presumption has to be rebutted by the prosecution by bringing contrary
evidence. Sections 79 to 85 and 105 refer to such presumptions.4

1
See., Indian Evidence Act, (1 of 1872), § 101 ; See also., Ratanlal & Dhirajlal, The Modern law of Evidence, (25 th
ed.,) Lexis Nexis (2013) [Note: For further general understanding of the subject]
2
See., Adrian Keane & Paul McKeown, The Modern Law of Evidence, (9th ed.) Oxford (2012)
3
See., Adrian Keane & Paul McKeown, The Modern Law of Evidence, (9th ed.) Oxford (2012)
4
See., Indian Evidence Act, (1 of 1872), § 4 ; See also., Ratanlal & Dhirajlal, The Modern law of Evidence, (25 th
ed.,) Lexis Nexis (2013) [Note: For further general understanding of the subject]

7
  IRREBUTTABLE PRESUMPTIONS OF LAW
Section 4 refers to them by the expression “Conclusive proof”. It says, “When one fact is
declared by the Act to be conclusive proof of another the court shall no proof of the one fact,
regard the other as proved, and shall not allow evidence to be given for the purpose of disproving
it”. They are inferences which the law makes so peremptorily that it will not allow them to be
overturned by contrary proof, however strong. The best example is Section 82 of IPC which says
nothing is an offence which is done by a child under 7 years of age. Sections 41, 112 and 113 of
the Act refer to such presumptions. However it is doubtful whether the presumption of
legitimacy under 112, will come under this, in so far as the section allows evidence of non-access
to rebut it. There is practically no difference between a conclusive presumption of law and a rule
of substantive law, for example the conclusive presumption that child under 7 years of age
cannot commit crime is nothing more than a rule of substantive law that a person of such age is
incapable of crime.5

 PRESUMPTIONS OF FACT
They are inferences which are naturally and logically drawn from the experience and observation
of course of nature, the constitution of human mind, the springs of human action, the usage and
habits of society etc. Section 4 refers them by the expression “may presume”. It says “whenever
it is provided by the Act that the court may presume a fact, it may either regard such fact as
proved, unless and until it is disproved, or may call for proof of it.” Section 114 gives 9 typical
illustrations of such permissive presumptions. But it is not a complete list of such presumptions.
These presumptions are not at all binding on the judges. They only provide some guild lines for
the judges to act upon. They have got wide discretion either to go by these presumptions, or
reject them and call for confirmatory evidence.6

III. LAW OF PRESUMPTION

Presumption is objective terminology. It has wide connotation. Its bandwidth frames in itself a
rule of law under evidentiary jurisprudence. Therefore, it is important to understand what
presumption is. Law of presumption has a definite classification and application. Therefore, it is
5
See., Indian Evidence Act, (1 of 1872), § 4 ; See also., Ratanlal & Dhirajlal, The Modern law of Evidence, (25 th
ed.,) Lexis Nexis (2013) [Note: For further general understanding of the subject]
6
See., See., Indian Evidence Act, (1 of 1872), § 4 ; See also., Ratanlal & Dhirajlal, The Modern law of Evidence,
(25th ed.,) Lexis Nexis (2013) [Note: For further general understanding of the subject]

8
also important to understand rule of presumption in various jurisdictions like the common law
and civil law.

i. Meaning, Nature, Scope, Application & Classification

Civil law jurisdiction

The presumption is a prima facie proof of the fact presumed, and unless the fact thus established,
prima facie, by the legal presumption of its truth is disproved, it must stand as proved. 7 Unless an
established presumption is rebutted, it creates a mandatory inference or a legally required rule of
reasoning.8 A presumption is a rule of law requiring the fact finder to reach a particular
conclusion in the absence of evidence to the contrary; the effect of a presumption is to force the
party against whom it operates to produce evidence to negate the presumption. 9 Presumption
does not shift burden of proof.10 A presumption in a civil case imposes the burden of production
on the party against whom it is directed, but does not shift the burden of persuasion. 11 Thus, a
civil presumption places the burden of going forward with the evidence on the party against
whom it operates.12

Bursting Bubble Theory of presumption is to force the opponent of the presumption to

rebut it by producing enough evidence to avoid a directed verdict; the theory does not shift the
burden of persuasion, only the burden of production. 13 Federal Rules of Evidence contemplates
that, presumption imposes upon the party against whom it is directed the burden of going
forward with evidence to rebut or meet the presumption, but does not shift to such party the
burden of proof, in the sense of the risk of non-persuasion, which remains throughout the trial on
7
See., Braswell v. Tindall, 200 Tenn. 629, 694 S. W. 2d 685 (1956) See also., “Presumption”, Corpus Juris
Secundum, A contemporary statement of American Law, 31A Thomson Reuters/West (2008)
8
See., Adamson v. May Co., 8 Ohio App. 3d 266 456 N. E. 2d 1212 (8 th Dist. Cuyahoga County 1982) See also.,
“Presumption”, Corpus Juris Secundum, A contemporary statement of American Law, 31A Thomson Reuters/West
(2008)
9
See., Joplin v. Borusheski, 244 S. W. 3d 607 (Tex. App. Dallas 2008) See also., “Presumption”, Corpus Juris
Secundum, A contemporary statement of American Law, 31A Thomson Reuters/West (2008)
10
See., In re Dressler, 194 B. R. 290 (Bankr. D. R. I. 1996) See also., “Presumption”, Corpus Juris Secundum, A
contemporary statement of American Law, 31A Thomson Reuters/West (2008)
11
See., McCann v. Newman Irrevocable Trust, 458 F. 3d 281, 70 Fed. R. Evid. Serv, 1044 (3d Cir. 2006) See also.,
“Presumption”, Corpus Juris Secundum, A contemporary statement of American Law, 31A Thomson Reuters/West
(2008)
12
See., In re A. M., 358 Ill. App. 3d 247, 294 Ill. Dec. 698, 831 N. E. 2d 648 (3d Dist. 2005) See also.,
“Presumption”, Corpus Juris Secundum, A contemporary statement of American Law, 31A Thomson Reuters/West
(2008)
13
See., Schultz v. Ford Motor Co., 857 N. E. 2d 977 (Ind. 2006) See also., “Presumption”, Corpus Juris Secundum,
A contemporary statement of American Law, 31A Thomson Reuters/West (2008)

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the party on whom it was originally set. 14 In the case of a conflict between two ordinary
presumptions, if the facts giving rise to one of them will be sufficient to destroy the other, then
both presumptions can logically be discarded and the issue will turn simply on the facts
themselves, freed of the presumptions.15

Where the plaintiff, in his action to recover money allegedly lent, invoked the
presumption that no one is presumed to give, and the defendant invoked the presumptions that
the mere delivery of money is presumed to be payment of an antecedent debt or a gift, neither
presumption will prevail and the general rules of evidence will apply. 16 Uniform rules of
evidence contemplates that if presumptions are inconsistent, the presumption applies that is
founded upon weightier considerations of policy are of equal weight, neither presumption
applies. An “inconsistent presumption” means that the presumed of one presumption is
inconsistent with the presumed fact of another presumption.

Common law jurisdiction

In accordance with the common law maxim Ie omnia praesumuntur rite esse acta (everything
has been done according to due form), lawful origin will be presumed. 17 Presumptions of law are
rules substantive law rather than rules of evidence under the common law. The general rule that
the prosecution must prove the guilt of the defendant of the offence charged is frequently
expressed in terms of presumption of innocence.18 The presumption of innocence is seen to be
guaranteed under the Convention for the Protection of Human Rights commonly referred to as
the European Convention on Human Rights (‘ECHR’) and is incorporated into the English law
by means of Human Rights Act 1998. The rule that the defendant bears the burden of
establishing a defence of insanity is sometimes termed the “presumption of sanity”19, but in such

14
See., In re G-I Holdings, Inc., 385 F. 3d 313, 65 Fed. R. Evid. Serv. 470 (3d Cir. 2004) (Constructing federal rules
of evidence 301) See also., “Presumption”, Corpus Juris Secundum, A contemporary statement of American Law,
31A Thomson Reuters/West (2008)
15
See., Turro v. Turro, 38 N. J. Super. 535, 120 A. 2d 52 (App. Div. 1956) See also., “Presumption”, Corpus Juris
Secundum, A contemporary statement of American Law, 31A Thomson Reuters/West (2008)
16
See., Moody v. Gossen, 125 So. 2d 264 (La. Ct. App. 3d. Cir 1960) See also., “Presumption”, Corpus Juris
Secundum, A contemporary statement of American Law, 31A Thomson Reuters/West (2008)
17
See., International Electronics Ltd. v. Weigh Data Ltd (1980) FSR 423 See also., Halsbury’s Laws of England,
Criminal Procedure, 28, Lexis Nexis, (2008)
18
See., Woolmington v. DPP AC (1935) 462, 25 Cr. App Rep 72 (HL) See also., Halsbury’s Laws of England,
Criminal Procedure, 28, Lexis Nexis, (2008)
19
See., M’ Naghten’s Case (1843)10 Cl. & Fin 200 at 210 (HL) See also., Halsbury’s Laws of England, Criminal
Procedure, 28, Lexis Nexis, (2008)

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cases the language of presumption is merely a convenient way of describing the allocation of the
persuasive burden of proof.

Irrebuttable presumption of law which is peculiar to criminal cases arises in the case of
various offences under the Sexual Offences Act 2003 where the defendant proved to have
intentionally deceived the complainant as to the nature or purpose of the relevant act or to have
intentionally induced the complainant to consent to the relevant act by impersonating another
person known to the complainant20. Various presumptions that affect (or used to affect) the
criminal liability of children have been the subject of statutory provision. 21Rebuttable
presumption is one which leads to a decision on a particular issue in favour of the party who
establishes it or relies upon it, unless it is rebutted. Rebuttable presumption of law may be
created by statute, or may exist at common law, and may cast either a persuasive or an evidential
burden on the party seeking to rebut the presumption, except that it is a rule of common law that
the defendant cannot be required to discharge a persuasive burden of proof. 22 Presumption of fact
involves nothing more than the drawing of a reasonable inference from circumstantial evidence. 23
Where frequently recurring fact situations have led to the emergence of a rule as to how the jury
should be directed in such circumstances, the term ‘presumption of fact’ is then used to describe
the rule.24

IV. LEGALITY OF PRESUMPTION

Presumption cannot be quantified to understand how much lawfulness persists within it. Quality
of lawfulness can only be justified or sanctioned. Presumption is very abstract in its nature and
adjudged to be normative in character. Presumption components a supposition, opinion or belief,
presumption is what may be doubted of, yet it shall be accounted truth if the contrary not proved.
Presumption is legal fiction. From the inherent deficiency of being a legal fiction, yet another

20
See., Sexual Offences Act 2003
21
See., Children and Young Persons Act, 1933 (It is conclusively presumed that no child under the age of ten years
can be guilty of any criminal offence (doli incapax)
22
See., Woolmington v. DPP (1935) AC 462, 25 Cr. App Rep 72 (HL) ¶ 465 See also., Halsbury’s Laws of
England, Criminal Procedure, 28, Lexis Nexis, (2008)
23
See., R v. Lumley LR (1869)1 CCR 196 See also., Halsbury’s Laws of England, Criminal Procedure, 28, Lexis
Nexis, (2008)
24
See., Schama, R v. Abramovitch (1914) 84 LJKB 396 at 398 See also., Halsbury’s Laws of England, Criminal
Procedure, 28, Lexis Nexis, (2008)

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clause which affect legality of presumption would be “until and unless the contrary clause”. The
legality within a presumption is established the point when contrary is failed to be established.25

a. Whether legality of presumption is justified? If so,

The primary assumption to justify the legality of presumption would be to assume that contrary
has failed in its course to be proved. Lawfulness of presumption can be adjudged through
inferences Presumption can be understood as a primary assumption over a fact. Presumption is
not a final conclusion. Presumption is an initial pre-requisite for an intelligent reasoning.
Therefore, initial suppositions are very important to prove a thesis. It is comprehensive either
affirmative or disaffirmative26. Presumption is always drawn from facts and also indicates
shifting of burden of proof. Presumptions may be looked upon as the bats of law, flitting in the
twilight, but disappearing in the sunshine of facts. 27 Presumptions are devices by use of which
the courts are enabled and entitled to pronounce on an issue notwithstanding that there is no
evidence or insufficient evidence.28 Presumption is not in itself evidence. It is a rule concerning
evidence. The rules concerning presumption are deduced from enlightened human knowledge
and experience and are drawn from the connection relation and co-incidence of the fact and
circumstance.29

b. Whether presumption is constitutional? If so,

Presumption is neither constitutionally recognized but presumption is a very vague and abstract
element inherent in the inner fabric of the Constitution of India. An assumption made failing
proof to the contrary that an enactment is in accordance with the constitution. The presumption is
always in favour of the constitutionality of an enactment and the burden is upon him who attacks
it to show that there has been a clear transgression of the Constitutional principles. 30 Presumption
is not independent. The primary presumption of the court on a case of unreasonable classification
would be that the classification is reasonable in the letter and spirit of article 14 of the
Constitution of India. Likewise, while applying Article 19, it is presumed that the rights are

25
See., Ambalal v. Mangalbhai, A 1978 G 208 See also., P. Ramanatha aiyar’s, Advanced Law Lexicons, 3 3764
(4th ed. 2013) Lexis Nexis Butterworth Wadhwa Nagpur
26
See., Izhar Ahmad Khan v. Union of India AIR 1962 SC 1052
27
See., Stumpf v. Montgomery, 101 OKL 256 Pac 85 (1924)
28
See., Kumar Exports v. Sharma Carpets, 2 SCC 513, 519 ¶ 15 (2009)
29
See., Sodhi Transport Co. v. State of UP AIR SC 1099 (1986)
30
See., P. Ramanatha aiyar’s, Advanced Law Lexicons, 3 3765 (4 th ed.) (2013) Lexis Nexis Butterworth Wadhwa
Nagpur

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subject to reasonable restrictions. Thus, cannot be abridged with beyond the ambit of the
reasonable restrictions. Article 21 presumes that right to life and personal liberty is violated of a
particular individual before the eyes of law, unless proved otherwise. A question how this can
determine the constitutionality of presumption is to be answered affirmatively confirming that
presumption is an illustrative and non-exhaustive abstract term inherent in the constitution since
its inception. The preamble in itself is a result of presumption that it is given by the people to
themselves for their proper governance. Therefore, presumption deems to be constitutional
within the letter and spirit of the Constitution of India.

c. Whether Presumption can be legally effective? If so,

Presumption is a legal fiction. Presumption can be legally effective when unless/until the
contrary clause failed to be proved is settled and the presumption is beyond reasonable doubt.
Effective legality of presumption is subjective. In essence the lawfulness of presumption is
questioned altogether. A normative analysis can only been drawn to determine whether
presumption is legally effective. In order to determine the effective legality of presumption, it is
important to understand the farm work of effective legality. Effective legality of presumption can
be best explained illustratively through Earabhadrappa v. State of Karnataka 31 case where the
question as to what amounts to recent possession sufficient to justify the presumption of guilt
varies according as the stolen article is or is not calculated to pass readily from hand to hand. If
the stolen articles are of the latter kind, the period of one year that elapsed cannot be said to be
too long particularly when the appellant had been absconding during that period.

d. What constitutes “effective legality”?

Effective legality is a corollary of justice. How can law be achieved effectively for the achieving
the end of justice is a primordial question of doubt? When presumption is proved beyond
reasonable doubt, a case is assumed to achieve effective legality. That limits the scope of this
paper in achieving effective legality over presumptions. Legality is intermingled with morality. It
can be understood in joint terms only. Lon L. Fuller explains legality as a substantive aim of law
and a condition of efficacy. A lawless unlimited power expressing itself solely in unpredictable
and pattern less interventions in human affairs could be said to be unjust only in the sense that it
does not act by known rule.32
31
See., Earabhadrappa v. State of Karnataka, 2 SCC 330, 340, 341 (1983)
32
See., Fuller L. Lon, The Morality of Law, 157-58 (1969)

13
 e. Pros and Cons of “effective legality”
Effective legality is an abstract concept. It is very intangible to be argued to be achieved. It can
only be justified to be achieved. Therefore, the basic Con of achieving effective legality over
presumption would be that there is no tangible inference for an effective legal argument over
presumption. Presumption is regarded to be proof of facts without evidence it is a con to
effective legality as there is equaling scope for an otherwise possibility. There is a possibility of
adverse presumptions as well. Presumption has three exceptions, i.e. rebuttable presumptions of
law, judicial notice, and formal admissions, however this constitute a pro to achieve effective
legality. Presumption is always dependent upon fairness of to the accused.33 Further, presumption
is always read along with the time factor. 34 For raising a presumption from the fact of possession
both corpus and animus have to be established. 35 A illustration where there is a possibility of two
validly arguing presumptions then the one most suited to the circumstances of the case should be
drawn which leads from abstractness to vagueness over ensuring effective legality of
presumption. What determines the standard of most suitable to the circumstances is left to fetters
of discretion. Therefore, it is to be implied that, presumption in itself legally effective to a
considerable extent. However, excessive reliance over presumption could curtail the effective
delivery of justice.

V. CONCLUSION
This research paper puts to test the legality of presumption into question. It endeavored to answer
a set of question to justify the legality of presumption. The presumption was given life from a
legal fiction to understand its nature, scope and application. The standard of proof and its
relevance over presumption was analyzed to understand the various dynamics of presumption.
Presumptions of intentions, understood as it is important to presume a convict innocent over till
his offence is proved beyond reasonable doubt. Basic classifications of such as rebuttable
irrebuttable presumptions were analyzed. Evidential presumption deemed to be the interplay
shifting burden of proof from one side to other and how presumption is affected was understood.
What affect would a conclusive proof have upon presumption was analyzed to understand that it
would be nullified. Further what would be the effect of presumption once the mens rea would be

33
See., Emporer v. Mavji Nanji, 43 Bom LR 629 (1941)
34
See., Tulsiram v. State, AIR SC 1(1954)
35
See., Baladev Khes v. State of Orrissa, Cr LJ 2059 (Ori) (1992)

14
proved? was answered understanding the fact that presumption would become a conclusive
proof. Furthermore, the validity of presumptions over civil matters also adjudged to have a
fictional application.

Legality of presumption was put to test under the civil and common law jurisdictions of
the globe comparing with Indian evidentiary jurisprudence to justify the legality and
constitutionality of presumptions and its application in the practical criminal jurisprudence. This
abstract concept is justified to be effectively legal as its roots are borrowed from the common
law criminal jurisprudence. However, whether the borrowed idea of presumption from the
common law jurisprudence whether absolute was the question sought to be answered. It was
concluded that the ideology is a legal norm not far from legality. The doubtful question of
whether effective legality for presumption is achieved in India? Is yet a question of doubt?
Though argued to be achieved is partial and not absolute. Therefore, suffers many back drops
from the full application of presumption coined in the blend of lawfulness. There is no code for
presumption in India yet suffers a guiding lamp for its interpretation and application in the
modern day evidentiary jurisprudence.

The steps in which presumption is understood as classified by the common law jurists
was determined as the keywords of the paper to understand the frame of legality in which the
presumption is talked about. Legality of presumption is justified in few steps of legal reasoning.
Firstly, it is questioned whether legality of presumption is justified. It is argued that legality is
justified by lawful presumption and comprehensive affirmative or disaffirmative thesis which it
puts forth in every case. Secondly, the constitutionality of presumption is tested upon to deliver it
to be in consensus with Article 14, 19 and 21 of the Constitution of India. It is question whether
presumption transgresses? An answer is sort to be achieved by intelligent reasoning as the pre-
requisite of presumption. Presumption is not in itself evidence. Thirdly, whether legality of
presumption can be more effective? It is submitted that, effectiveness could be achieved as it
would depend on how legal effectiveness is further qualified. For the time being legality means
lawfulness. Presumption is per say argued to be legal. Fourthly, the pros and cons of effective
legality were sought from the presumption perspective. It was concluded to drive that standard of
proof and degree of presumption would determine the absoluteness of presumption. Drawing
summary from the beginning to conclude the answers of all variety of questions dealt upon sort.

15
Law of presumption is absolute. Law of presumption is universal. Effective legality can be
achieved for the law of presumption in India.

BIBLIOGRAPHY
1. Corpus Juris Secundum, A contemporary statement of American Law, 31A Thomson
Reuters/West (2008)
2. Halsbury’s Laws of England, Criminal Procedure, 28, Lexis Nexis, (2008)
3. Ratanlal & Dhirajlal, The Law of Evidence, (25th ed.) Lexis Nexis, (2013)
4. Adrian Keane & Paul McKeown, The Modern Law of Evidence, (9th ed.) Oxford (2012)
5. Fuller L. Lon, The Morality of Law, 157-58 (1969)
6. P. Ramanatha aiyar’s, Advanced Law Lexicons, 3 3765 (4th ed.) (2013) Lexis Nexis
Butterworth Wadhwa Nagpur

16