Burden of proof and onus of proof

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Burden of Proof and Onus of Proof-

TANMOY MUKHERJI INSTITUTE OF JURIDICAL SCIENCE

Dr.Tanmoy Mukherji

Advocate

Burden of Proof and Onus of Proof-

Tanmoy Mukherji

Advocate

The expressions "Burden of Proof" and "Onus of Proof" are sometimes loosely used interchangeably, but legally they have an important distinction.

❖The Supreme Court has repeatedly explained that the burden of proof is the ultimate legal responsibility of proving of fact, whereas the onus of proof is the evidential responsibility at a particular stage and can shift as evidence develops.

Distinction between Burden of Proof and Onus of Proof-

Basis	Burden of Proof	Onus of Proof
Meaning	Legal obligation to establish a fact or proposition.	Evidential obligation to produce sufficient evidence at a particular stage.
Character	Ultimate/legal burden.	Evidential/provisional burden.
On whom?	Ordinarily on the party asserting the material fact.	On the party who must presently answered or rebut the evidence.
Does it shift?	Ultimate burden ordinarily does not shift.	Can shift repeatedly.
When determined?	Primarily from law, pleadings and nature of the issue.	From the state of evidence at each stage.
Main question on the issue	Who must ultimately prove this fact?	Who must produce/rebut evidence now?
Failure	Party bearing the burden may ultimately lose on that issue.	Failure to discharge onus may allow the court to accept the opposing evidential position.
Nature	Comparatively permanent.	Temporary and shifting.
Relevant stage	Throughout adjudication	Changes during presentation and e-valuation of evidence.
Practical expression	'Burden of persuasion'.	Evidential burden/ 'onus probandi'.