Bharatiya Sakshya Adhiniyam, 2023
Section 149
Questions lawful in cross-examination
When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend—
(a) to test his veracity; or
(b) to discover who he is and what is his position in life; or
(c) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him to a penalty or forfeiture: Provided that in a prosecution for an offence under section 64, section 65, section 66, section 67, section 68, section 69, section 70 or section 71 of the Bharatiya Nyaya Sanhita, 2023 or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the cross-examination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.
Why this exists
Cross-examination has long been allowed wide latitude in Indian evidence law so that courts can properly judge whether a witness is honest and reliable, even if that means uncomfortable or self-incriminating questions. But this broad power was historically misused in sexual assault trials, where defence lawyers would attack a victim's past sexual conduct or 'character' to suggest she must have consented — a practice widely criticised as re-traumatizing victims and irrelevant to the facts of the specific incident. Following sustained advocacy and court criticism (notably after the 2012 Delhi gang-rape case), Parliament added a proviso barring such character or sexual-history evidence in rape-shield fashion, a protection carried forward from the Indian Evidence Act, 1872 (Section 146) into the Bharatiya Sakshya Adhiniyam, 2023.
How courts read it
Even before the express proviso was added to the Evidence Act, the Supreme Court in State of Punjab v. Gurmit Singh (1996) held that a rape victim's 'loose moral character' is irrelevant to whether she consented to the specific act charged, and cautioned trial courts against character-assassination of victims. Sakshi v. Union of India (2004) further pushed for victim-sensitive procedures. These judicial trends fed into the 2013 Criminal Law (Amendment) Act, which inserted the rape-shield proviso into Section 146 of the old Evidence Act — the same text now carried into Section 149 of the BSA, 2023 — cementing that consent cannot be inferred from a victim's past sexual conduct or general character.
Common misconceptions
- Myth: Lawyers can ask a witness absolutely anything in cross-examination, no limits.
Fact: The law does allow broad questioning to test honesty or character, but it specifically bans questions about a sexual assault victim's past sexual history or general immoral character when consent is the issue. - Myth: A witness can refuse to answer character-related questions because the answer might incriminate them.
Fact: The provision explicitly says such questions can still be asked even if the answer might incriminate the witness or expose them to penalty — except where the special rape-shield proviso applies. - Myth: This protection applies to all crimes.
Fact: The rape-shield proviso is limited to specific offences listed under the Bharatiya Nyaya Sanhita, 2023 (sections 64 to 71) and their attempts, where consent is in question.