Fundamental Rights

How the Burden of Proof shifts under Article 32


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Written by: Shivam Kumar Gupta

Generally, in the cases of the fundamental rights infringement, the right of onus falls on the petitioner but there are many categories which arose due to the interpretation of this Article where the onus shifts also.

In Deena v. Union of India,[ AIR 1983 SC 1146 ], it was held that the question as to on whom the burden of proof lies would depend upon the particular fundamental right of the petitioner alleged to have been violated by the impugned provision and the same rule of burden of proof will not apply to all constitutional challenges. As regard the cases arising under Article 14, the question whether there are other persons who are situated similarly as the petitioner and whether the petitioner is subjected to hostile discrimination are questions of fact and, therefore, the burden to establish the existence of these facts rests on the petitioner. To cast the burden of proof in such cases on the State is really to ask it to prove the negative that no other persons are situated similarly as the petitioner and the treatment meted out to the petitioner is not hostile. But, as regards the cases arising under the Article 19 and 21, once the petitioner shows violation of any or both of those Articles, which is not really part of burden of proof or when the violation is apparent, it is for the State to justify the impugned law or action.

“In Habeas Corpus petition, if the petitioner alleges that he is unlawfully detained, the burden to prove that his detention is lawful is on the State to satisfy the court that the detention of the detenu was legal and in conformity not only with the mandatory provisions of the Act, but also strictly in accordance with the Constitutional safeguards embodied in Article 22(1)” in Mohinuddin v. Dt. Magistrate, [AIR 1987 SC 1977].

Read: When does the differentiation become unreasonable under Article 14 ?

“In the case of writ of mandamus, the applicant must show that he has a legal right to compel the opponent to do or refrain from doing something, i.e., there must be in the applicant a right to compel the performance of some duty cast on the opponent” in State of Madhya Pradesh v. V.G.C. Mandawar, [ AIR 1954 SC 493 ]

In the case of writ of quo warranto, the petitioner has to plead with full and detailed particulars explaining why the person is not qualified to the post, who must also be made a party to the proceeding. On prima facie proof adduced by the petitioner, the burden is shifted to the respondent to convince that he is holding the office lawfully and that he is duly qualified to hold the post”, in State of Haryana v. Haryana Co-operative Transport Ltd., [ AIR 1977 SC 237] and University of Mysore v. Govinda Rao, [ AIR 1965 SC 491].


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