The law relating to the Burden of Proof and its onus is given under the provisions of the Indian Evidence Act, 1872 (Act) in Chapter VII, Part III of the Act.

Under the Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. Burden of Proof has 3 meanings:

  1. Persuasive Burden - Burden of Proof as a matter of law & pleading the burden of establishing a case.
  2. Evidential Burden - Adducing evidence to establish certain facts.
  3. Admissibility of Evidence.


In a civil case, a plaintiff files a suit and states both, facts and legal grounds. The plaintiff has the burden of proof, which means that the plaintiff must convince the court that the facts are rightfully presented and there are grounds for the case. If the plaintiff cannot convince the court, that the facts and allegations are more likely to be true than not, the defendant is likely to prevail even if he presents no defense at all. Defendants in civil cases often work to poke holes in a plaintiff's case, rather than to affirmatively prove they are not liable.

In case of arbitration, the Arbitration and Conciliation Act, 1996 (Arbitration Act) does not specifically deal with the concept of burden of proof. The rules that are applied in civil cases i.e. the party making a claim must prove it, is generally practiced. This is evident from Section 34 of the Arbitration Act, under which an arbitral award can be challenged in court. The court may set aside the award, provided the party making the application furnishes certain proofs.

The first five grounds have been set forth in Section 34(2)(a) of Arbitration Act. In order to successfully invoke any of these grounds, a party has to plead and prove the existence of one or more of such grounds. That is to say, the party challenging the award must discharge the burden of proof by adducing sufficient credible evidence to show the existence of any one of such grounds.

Section 48 of the Arbitration Act provides for conditions for enforcement of foreign awards. The enforcement of a foreign award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the court certain proofs.


Section 101 of the Act states that, "Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist". When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

In the case of M.S. Reddy v. State Inspector of Police, A.C.B., Nellore1, it was held that the initial burden of proof is on the prosecution. It cannot take advantage of the weaknesses and inconsistencies of the defence. It must base its proof on its own evidence that it has acquired. In another case of Savithri v. Karthyayani Amma2, there were suspicious circumstances regarding the execution of a will along with an allegation of coercion. The court held that the burden of proof was on the party who alleged coercion.

Section 102 of the Act states that the burden of proof in a suit or proceeding lies on that person who would fail, if no evidence at all were given on either side. For example, in a scenario where A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession.

Therefore, the burden of proof is on A. In the case of Special Development Area v. Pooran lal3, there was a complaint that the accused was doing unauthorized construction. It was held by the court that the onus is on the complaining authority to prove that the land belongs to it and the accused was doing unauthorized construction on it.

Section 103 of the Act talks about burden of proof as to particular fact. 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 that fact shall lie on any particular person. In the case of Prakash Chandra v. Managing director, ORTCO4, a man was protesting against the nationalisation of roads. The court said that it was for him to prove that it will not serve the national purpose.

Section 104 of the Act states that the burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence. In the case of Mahboob Sab v. Union of India5, a person died by falling from a moving train. The railways contended that he was not a bona fide passenger because he was without a ticket. The court held that the burden is on the railways to prove that fact.


Presumptions are inferences which are drawn by the court with respect to the existence of certain facts. When certain facts are presumed to be in existence, the party in whose favour, they are presumed to exist need not discharge the burden of proof with respect to it. This is an exception to the general rule that the party which alleges the existence of certain facts has the initial burden of proof, but presumptions do away with this requirement.

Presumptions can be classified into certain categories like presumptions of fact, presumptions of law and mixed presumptions. There are certain presumptions on Documentary Evidence. According to Section 79 of Act, when a certified copy of an original document is produced before the court, law assumes that copy is a genuine copy of an original evidence. Section 85 of the Act provides that the court shall presume that a power of attorney executed before the court is by a genuine authorized person.


In the case of V. Kalyanaswamy Vs. L. Bakthavatsalam6, the hon'ble Supreme Court while dealing with a will, held that while the burden to prove the will and to satisfy the conscience of the court that there are no suspicious circumstances or if there are any, to explain them, is on the propounder of the will, the burden to prove that the will is procured by coercion, undue influence or fraud is on the respondents who have alleged the same.

In another case, the hon'ble Supreme Court in Ultratech Cement Ltd. Vs. State of Rajasthan7, where the question of refund of the amount of subsidy availed in excess of 50% of the payable and deposited tax together with interest was concerned, held that the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification.

Lastly, regarding authentication of electronic documents, the Supreme Court, in Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Ors.8, held that any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be.


Thus, as is evident, the Evidence Act, 1872, deals with the concept of burden of proof in detail and is a well codified law. However, the latest developments with regards to electronic evidence and burden of proof is something that needs more clarity especially where interpretation by courts is concerned.


1. M.S. Reddy v. State Inspector of Police, A.C.B., Nellore, 1993 Cr LJ 558 AP.

2. Savithri v. Karthyayani Amma (AIR 2008 SC 300).

3. Special Development area v. Pooran lal, 1997 (Cr LJ 3484 (MP).

4. Prakash Chandra v. Managing director, ORTCO, (AIR 1980 Ori 122).

5. Mahboob Sab v. Union of India, (AIR 2011 Kar 8).

6. V. Kalyanaswamy (D) Vs. L. Bakthavatsalam (D) by L.Rs. and Ors. (MANU/ SC/0528/2020).

7. Ultratech Cement Ltd. and Ors. Vs. State of Rajasthan and Ors. (MANU/ SC/0530/2020).

8. Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Ors. (MANU/SC/0521/2020).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.