BSA Section 105: Burden of Proof (2026)

Explainer · Evidence Law · BSA

Updated for 2026 · Claw Editorial

Section 105 of the Bharatiya Sakshya Adhiniyam (BSA), the new evidence law in force since 1 July 2024, fixes on whom the burden of proof lies. In plain words, the burden is on the party who would lose if neither side led any evidence at all. It carries forward Section 102 of the old Indian Evidence Act. If you are looking up "Section 105" expecting the general burden of proof rule, note that the numbers sit close together: the general rule is Section 104 of the BSA, while Section 105 answers the next question, which side carries the burden. This explainer sets out what Section 105 says, how it works with the sections around it, and how it maps to the old law. Last verified October 2026.

01The point Section 105 answers

Every contested case has a basic question at the start: if nobody led any evidence, who would lose? That party is the one who has to prove its case. Section 105 of the BSA answers exactly that. It does not create a punishment or an offence; it is a rule of evidence that tells the court where the burden sits.

This matters because the general rule, that whoever wants the court to believe a fact must prove it, is in Section 104. Section 105 goes one step further and names the side that carries the overall burden in the proceeding.

02What Section 105 says

Section 105 of the BSA provides 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.

So in a money suit, if the plaintiff led no evidence and the defendant led no evidence, the plaintiff would lose, because there would be nothing to support the claim. The burden therefore lies on the plaintiff. The same test is applied in criminal and other proceedings to find the party that carries the burden.

03How the test works in practice

The Section 105 test is often called the test of "who fails on silence". To apply it, the court imagines an empty record and asks who loses. A few plain examples:

• A person suing to recover a loan would fail if no evidence were given, so the burden to prove the loan lies on that person.
• A party claiming a special exception or right, which the law does not presume, carries the burden on that point, because without proof the claim fails.
• In a criminal case the prosecution would fail if nothing were proved, so the burden to prove guilt beyond reasonable doubt lies on the prosecution.

The burden under Section 105 is the overall, fixed burden in the case. It is different from the lighter burden of leading evidence that keeps shifting between the parties as the trial goes on, which is often called the onus.

04Section 104, 105 and 106 together

These three sections work as a set and are easy to mix up. It helps to read them together.

For the general rule in Section 104, see burden of proof under BSA Section 104. Section 105 builds on it by naming the side that carries the burden overall, and Section 106 then lets the court place the burden for a specific fact on one party.

05Old to new: Evidence Act 102 to BSA 105

Section 102 of the Indian Evidence Act is now Section 105 of the BSA. The wording and the illustrations are carried over, so the rule itself is unchanged.

Because the text is carried over, judgments decided under Section 102 of the Evidence Act continue to guide how Section 105 of the BSA is read.

06What changed

The substance did not change. The test of who fails on silence is carried over from the old Section 102, together with its illustrations. The change is the section number and the modern drafting.

One practical note: this is an evidence provision, so it has no punishment and no cognizable, bailable or triable status of its own. Those attributes belong to the offence or claim being tried. Section 105 simply tells the court which side must prove the case.

07Where Claw fits

Claw is an all-in-one legaltech platform for Indian advocates, law firms, and corporate legal teams, combining AI-based case search, an AI legal assistant (Legal GPT), case management, and compliance automation across all Indian courts and tribunals.

Where the burden of proof lies often decides a case, so how courts have applied the test on your kind of facts matters. Claw lets you search more than 30 crore judgments on the burden of proof, under Section 105 of the BSA or the old Section 102, by party or advocate, with results in under 5 seconds. Reported authority runs from Supreme Court rulings of 1950 and High Court rulings of 1990 to the latest orders. Claw also lets you follow a live matter, with its orders and hearings, by party or advocate name across 9,102 courts, benches and forums.

Claw does not use the documents you upload to train its AI models. Create a free Claw account to see how Section 105 of the BSA, and Section 102 of the old Act, have been applied to fix the burden of proof, and to track a pending matter. To search the wider body of law, see case search across Indian courts.

08Sources and further reading

• India Code (official text of the BSA, 2023): indiacode.nic.in
• PRS Legislative Research (BSA overview and comparison): prsindia.org
• Section 102 IEA vs Section 105 BSA (ApniLaw): apnilaw.com
• Claw: clawlaw.in

This explainer is general information, not legal advice. The law changes through amendments and judgments, so check the current text and take advice from counsel before you act.

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