Introduction

In the realm of legal proceedings, proving every single fact with direct evidence can be an exhaustive and sometimes impossible task. To ensure the efficient delivery of justice, the law employs “Presumptions.” Under the Bharatiya Sakshya Adhiniyam (BSA), which has modernized the framework previously governed by the Indian Evidence Act, 1872, presumptions are categorized based on the level of certainty and the degree of discretion granted to the judge.

The concepts of “May Presume” and “Shall Presume” represent the two primary pillars of rebuttable presumptions, dictating when a court can choose to accept a fact and when it is compelled to do so by statute. Understanding these definitions is crucial for any legal practitioner, as they dictate the shift in the “Burden of Proof” during a trial.

1. May Presume: Discretionary Presumption

Defined under Section 2(1)(m) of the BSA, this category grants the court the power of choice. It is often referred to as a Presumption of Fact.

• The Rule: The court may either regard a fact as proved until it is disproved or, if it feels the circumstances are unclear, it may call for independent proof of that fact.
• Source: These are generally based on logic, common sense, and the natural course of human events.
• Example (Section 119): If a person is found in possession of a stolen luxury watch two hours after a robbery, the court may presume they are the thief. However, if that person is a known jeweler, the court might exercise its discretion to ask for more evidence before making that assumption.

Relevant Case Law

In Chanderaswar v. State, the court established that “May Presume” is a permissive condition. The court is not bound to believe the existence of a fact; it is a matter of judicial suspicion that can be confirmed or dismissed based on the judge’s prudence.

2. Shall Presume: Mandatory Presumption

Defined under Section 2(1)(n) of the BSA, this category is a command from the legislature to the judiciary. It is a Presumption of Law.

• The Rule: The court must regard the fact as proved. It has no choice but to accept it unless and until the opposing party provides evidence to “rebut” or disprove it.
• Source: These are created by statute to protect social interests or address specific crimes where evidence is hard to obtain.
• Example (Section 118): In cases involving the suicide of a married woman within seven years of marriage, if it is shown she was subjected to cruelty by her husband, the court shall presume that the husband abetted the suicide. The burden then falls entirely on the husband to prove his innocence.

Relevant Case Law

In State of Madras v. Vaidyanatha Iyer, the Supreme Court held that in “Shall Presume” scenarios, the court cannot wait for the prosecution to prove the fact further; it must immediately assume the fact is true and ask the defense to disprove it.

Comparative Analysis: The Shift in Burden

Feature	May Presume (Section 2(1)(m))	Shall Presume (Section 2(1)(n))
Court’s Power	Discretionary (Option to presume)	Mandatory (Required to presume)
Type	Presumption of Fact	Presumption of Law
Initial Proof	The court can demand proof upfront.	The court cannot demand proof; it is assumed.
Rebuttability	Easily rebutted by showing contrary facts.	Rebuttable, but requires strong evidence from the opponent.
Common Sections	Sec 92 (Old docs), Sec 119 (Stolen goods)	Sec 81 (Certified copies), Sec 118 (Abetment)

Conclusion

The distinction between “May Presume” and “Shall Presume” under the BSA represents the balance between judicial intuition and legislative intent. “May Presume” allows the court to act as a rational observer of human behavior, using its discretion to bridge gaps in evidence. Conversely, “Shall Presume” acts as a powerful legal tool used by the state to ensure that in specific, sensitive circumstances—such as marital cruelty or official documentation—the law leans in favor of a specific conclusion unless proven otherwise.