Sunday, 27 August 2017

What is distinction between legal fiction and presumption?

There is a clear distinction in law between a legal fiction and presumption9. "A distinction commonly taken between the fiction and the legal presumption runs something as follows: A fiction assumes something which is known to be false; a presumption (whether conclusive or rebuttable) assumes something which may possibly be true. This distinction is regarded as being reinforced, as it were, in the case of the rebuttable presumption because such a presumption assumes a fact which probably is true."10 "Presumptions are closely related to legal fictions ... but they operate differently"11. "Fictions always conflict with reality, whereas presumptions may prove to be true"12. Legal fictions create an artificial state of affairs by a mandate of the legislature.

... an assumption of fact deliberately, lawfully and irrebuttably made contrary to the facts proven or probable ....... with the object of bringing a particular legal Rule into operation ... the assumption being permitted by law ...

They compel everybody concerned including the courts to believe the existence of an artificial state of facts contrary to the real state of facts. When a fiction is created by law, it is not open to anybody to plead or argue that the artificial state of facts created by law is not true, barring the only possible course if at all available is to question the constitutionality of the fiction. It is settled law that only sovereign legislative bodies can create legal fictions but not a subordinate law making body.

33. Whereas presumptions are Rules of evidence for determining the existence or otherwise of certain facts in issue in a litigation. "Presumptions13 were inferences which the judges were directed to draw from certain states of facts in certain cases, and these presumptions were allowed a certain amount of weight in the scale of proof; such a presumption and such evidence amounted to full proof, such another to half full, and so on."14 Nothing is brought to our notice to say that a non-sovereign law making body cannot make a Rule of evidence containing a presumption. In our opinion, Agricultural Market Committee is not an authority for the proposition that a presumption cannot be created by subordinate legislation.

Civil Appeal No. 7823, 7825 and 7824 of 2014

Decided On: 24.03.2017

Bhuwalka Steel Industries Ltd. and Ors.
Union of India (UOI) and Ors.

Hon'ble Judges/Coram:
Jasti Chelameswar and Abhay Manohar Sapre, JJ.

Citation:(2017) 5 SCC598
Read full judgment: Click here
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