​KembaraXtra-Indian Evidencne Law - Bharatiya Sakshya Adhiniyam 2023-Previous Bad Evidence of Character or Previous Sexual Experience Not Relevant in Certain Cases [Section 48]
Statutory Provision
Section 48 of the Bharatiya Sakshya Adhiniyam, 2023 provides that in prosecutions relating to certain sexual offences under the Bharatiya Nyaya Sanhita, 2023, evidence regarding the character of the victim or the victim’s previous sexual experience with any person is not relevant when the question of consent or the quality of consent is in issue.

This provision applies in prosecutions for offences under Sections 64 to 71 and Sections 74 to 78 of the Bharatiya Nyaya Sanhita, 2023, as well as for attempts to commit such offences.
The section clearly states that in such cases, evidence concerning:

• the character of the victim, or
• the previous sexual experience of the victim with any person,

cannot be used to determine whether the victim consented to the act or to assess the nature or validity of such consent.

Purpose and Object of Section 48
The purpose of this provision is to protect victims of sexual offences from being subjected to character assassination during trial. Historically, defence strategies in rape trials often attempted to show that the victim had an immoral character or past sexual history in order to argue that she was more likely to have consented.

Section 48 eliminates this approach by declaring that past sexual behaviour or reputation has no relevance to the question of consent in the present case.

This ensures that the trial focuses on the facts of the incident itself, rather than the personal life or moral reputation of the victim.

Scope of the Provision
The rule applies in cases involving:

• Sexual offences such as rape and related crimes under Sections 64–71 of the Bharatiya Nyaya Sanhita, 2023.
• Offences involving criminal force or assault against women under Sections 74–78 of the BNS.
• Attempts to commit any of these offences.

Where the issue of consent arises, neither the character of the victim nor evidence of previous sexual acts can be introduced to question the legitimacy of the victim’s refusal or consent.

Effect of the Provision
The effect of Section 48 is that:

1. Evidence relating to the victim’s sexual history is inadmissible for determining consent.
2. Courts must decide the issue of consent based solely on the facts and circumstances of the particular incident.
3. The defence cannot argue that a victim’s past sexual behaviour implies consent in the present case.

Development of the Rule
The strengthening of this principle in Indian law was influenced by judicial and legislative developments following the 2012 Delhi gang rape incident (commonly known as the Nirbhaya case). Reforms were introduced to ensure greater protection for victims of sexual offences and to prevent humiliating or irrelevant questioning regarding their personal lives during trial.
As a result, character evidence of the victim is no longer relevant when assessing consent or the quality of consent in sexual offence cases.

Conclusion
Section 48 reflects an important shift in evidentiary principles by emphasizing victim dignity and fairness in trial proceedings. By excluding evidence of a victim’s character or prior sexual conduct, the law ensures that judgments in sexual offence cases are based on objective evidence of the alleged act, rather than on prejudicial assumptions about the victim’s morality.