Section 48 BSA: Evidence of Character or Previous Sexual Experience Not Relevant in Certain Cases

Section 48 BSA prohibits using a victim’s character or previous sexual experience to determine consent in specified sexual offence prosecutions.

Introduction

Section 48 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) protects victims in specified sexual offence prosecutions from having their consent assessed on the basis of their character or previous sexual experience.

The provision addresses a fundamental evidentiary principle: a person’s previous sexual experience does not establish that the person consented to a particular sexual act. Consent must be assessed in relation to the incident in question, not inferred from assumptions about a victim’s past.

For example, if a person is prosecuted for rape and the victim has had previous consensual sexual relationships, that history cannot be used to determine whether the victim consented to the act alleged in the prosecution.

Section 48 carries forward the rule previously contained in Section 53A of the Indian Evidence Act, 1872, with updated references to offences under the Bharatiya Nyaya Sanhita, 2023 (BNS).

Bare Act: Section 48 of the Bharatiya Sakshya Adhiniyam, 2023

48. Evidence of character or previous sexual experience not relevant in certain cases.—

In a prosecution for an offence under section 64, section 65, section 66, section 67, section 68, section 69, section 70, section 71, section 74, section 75, section 76, section 77 or section 78 of the Bharatiya Nyaya Sanhita, 2023 or for attempt to commit any such offence, where the question of consent is in issue, evidence of the character of the victim or of such person’s previous sexual experience with any person shall not be relevant on the issue of such consent or the quality of consent.

Meaning of Section 48 BSA

Section 48 makes a particular category of evidence irrelevant when consent is in issue in prosecutions for the offences listed in the provision.

The section has three essential components:

1. Specified offences: The prosecution must concern an offence listed in Section 48 BSA or an attempt to commit such an offence.
2. Consent must be in issue: The provision applies where the question of consent arises in the prosecution.
3. Character and sexual history are irrelevant to consent: Evidence of the victim’s character or previous sexual experience cannot be used to determine whether consent existed or the quality of that consent.

The provision prevents a court from treating previous sexual experience as proof that a victim consented to the incident under consideration.

It does not mean that all evidence concerning the victim is inadmissible. Evidence relevant to the alleged incident may still be considered, subject to the applicable rules of evidence and criminal procedure.

Offences Covered Under Section 48 BSA

Section 48 applies to prosecutions involving the following BNS provisions, where consent is in issue, and to attempts to commit the specified offences.

BNS provision	Subject of the provision
Section 64	Rape
Section 65	Punishment for rape in certain cases
Section 66	Punishment for causing death or resulting in a persistent vegetative state of the victim
Section 67	Sexual intercourse by husband upon wife during separation
Section 68	Sexual intercourse by a person in authority
Section 69	Sexual intercourse by employing deceitful means, etc.
Section 70	Gang rape
Section 71	Punishment for repeat offenders
Section 74	Assault or criminal force to woman with intent to outrage her modesty
Section 75	Sexual harassment
Section 76	Assault or use of criminal force to woman with intent to disrobe
Section 77	Voyeurism
Section 78	Stalking

Important: The section expressly identifies the offences to which it applies. It should not be described as automatically governing every offence involving sexual conduct. Its specific requirement that consent be in issue must also be respected.

Why Is Previous Sexual Experience Irrelevant to Consent?

The basic principle is that consent is specific to the person, act and circumstances in question. Previous consent to one act does not amount to consent to another act.

For example, a person may have previously consented to sexual activity with the accused or another person. That history does not establish consent to the act alleged in the present prosecution.

Similarly, a victim’s reputation, lifestyle or perceived sexual character cannot substitute for evidence about whether consent existed in the particular circumstances.

Section 48 therefore prevents an improper inference from past sexual experience to present consent.

What Is Meant by “Character of the Victim”?

The expression refers to evidence concerning the victim’s character that might otherwise be offered to suggest that the victim was more likely to have consented.

For example, a party cannot rely on a victim’s alleged reputation for sexual activity to argue that consent must have existed during the incident under investigation.

The provision excludes such evidence for the purpose of deciding consent or the quality of consent in the specified prosecutions.

This does not prevent the court from considering admissible evidence directly relevant to the incident, including evidence concerning the parties’ actions and communications, subject to the governing law.

Also Read: What Is Previous Good Character Under Section 47 BSA?

What Is Meant by “Previous Sexual Experience”?

Previous sexual experience refers to sexual activity involving the victim before the incident being prosecuted, whether with the accused or another person.

Under Section 48, such experience is not relevant to deciding whether the victim consented to the particular act in issue or the quality of that consent.

Example 1: Previous Relationship With the Accused

A is accused of committing rape against B. A and B had previously been in a consensual relationship.

The fact that B previously consented to sexual activity with A cannot, by itself, establish that B consented to the incident alleged in the prosecution.

Example 2: Previous Relationships With Other Persons

C is prosecuted for a specified sexual offence against D. The defence seeks to rely on D’s previous consensual relationships with other persons to suggest that D consented to the alleged act.

Where Section 48 applies and consent is in issue, D’s previous sexual experience cannot be used to determine consent or the quality of consent.

Example 3: Evidence Directly Relating to the Incident

E is prosecuted for a specified sexual offence against F. The court considers communications between E and F relating directly to the incident.

Section 48 does not automatically exclude such communications merely because they concern sexual activity. Their relevance and admissibility must be assessed under the applicable law. The prohibition concerns evidence of the victim’s character or previous sexual experience when used to determine consent or its quality.

Section 48 BSA and the Concept of Consent

Section 48 is an evidentiary provision. It determines the relevance of certain categories of evidence; it does not independently define consent for every offence listed in the section.

The substantive requirements for consent must be considered under the applicable provisions of the BNS and other relevant law.

The following principles are important:

• Consent to a previous sexual act does not establish consent to a later act.
• Consent to sexual activity with one person does not establish consent to sexual activity with another.
• A person’s sexual history does not, by itself, establish consent to the incident being prosecuted.
• Consent must be evaluated in the context of the act and circumstances in question.
• The prosecution must prove the applicable elements of the alleged offence according to the law.

The precise legal significance of consent may differ depending on the offence charged. Section 48 does not replace the substantive statutory requirements.

Important Judgments Relating to Section 48 BSA

Section 48 BSA corresponds to Section 53A of the Indian Evidence Act, 1872. The following judgments explain the principles underlying the exclusion of character and previous sexual experience when assessing consent.

1. Lillu @ Rajesh v. State of Haryana

Citation: (2013) 14 SCC 643

Court: Supreme Court of India

The Supreme Court considered issues concerning the medical examination of a rape victim and the use of the so-called two-finger test. The Court emphasised the importance of protecting the victim’s dignity and recognised that previous sexual experience cannot be used to infer consent to the act under investigation.

The judgment discussed Section 53A of the former Evidence Act and explained that previous sexual experience is irrelevant to the issue of consent or the quality of consent.

Legal principle: A victim’s previous sexual experience does not establish consent to the sexual act alleged in the prosecution. The victim’s dignity and bodily integrity must be respected.

This decision interpreted the former Evidence Act. It remains important for understanding the principle carried forward into Section 48 BSA.

2. State of Uttar Pradesh v. Munshi

Citation: AIR 2009 SC 370

Court: Supreme Court of India

Also Read: Section 3 – Evidence may be given of facts in issue and relevant facts – BSA 2023

The Supreme Court explained that previous sexual experience cannot determine whether rape occurred on the occasion in question. The central issue is whether the accused committed the alleged offence, not whether the victim had previously engaged in sexual intercourse.

The judgment illustrates why a victim’s past sexual experience cannot serve as a substitute for examining the evidence concerning the particular incident.

Legal principle: Previous sexual experience does not give another person permission to engage in sexual activity without the consent required by law.

3. Aparna Bhat v. State of Madhya Pradesh

Citation: (2021) 3 SCC 247

Court: Supreme Court of India

The Supreme Court addressed gender stereotypes in judicial decision-making in cases involving sexual offences and set out directions concerning inappropriate conditions and reasoning in such cases.

The Court cautioned against approaches that reinforce stereotypes about women and sexual violence. Although the decision was not a direct interpretation of Section 48 BSA, its reasoning is relevant to understanding why judicial decisions must not rely on assumptions about a victim’s character or sexual history.

Legal principle: Courts must avoid gender stereotypes and must not impose conditions or draw conclusions based on assumptions about a victim’s behaviour, morality or sexual history.

Difference Between Section 47 and Section 48 BSA

Basis	Section 47 BSA	Section 48 BSA
Subject	Previous good character of the accused	Character and previous sexual experience of the victim in specified prosecutions
General rule	Good character of the accused is relevant in criminal proceedings	Specified evidence is irrelevant to consent or its quality when the statutory conditions are met
Purpose	Allows consideration of the accused’s good character	Prevents improper inferences about consent from the victim’s character or sexual history
Scope	Criminal proceedings generally	Listed offences and attempts, where consent is in issue

The provisions serve different purposes and should not be confused. Section 47 concerns the accused’s good character, whereas Section 48 protects the assessment of consent from specified forms of character and sexual-history evidence.

Section 48 BSA and Section 53A of the Indian Evidence Act, 1872

Basis	Section 48 BSA	Section 53A, Indian Evidence Act
Subject	Character or previous sexual experience not relevant in certain cases	Same subject
Statutory references	Specified offences under the BNS	Specified offences under the Indian Penal Code
Core principle	Character and previous sexual experience are irrelevant to consent or its quality in the covered prosecutions	Substantially the same principle
Current legal framework	BSA, in force from 1 July 2024	Former Evidence Act, subject to applicable savings provisions

The BSA carries forward the central rule while updating the references to the offences under the new criminal law framework.

For proceedings affected by the transition between the former and new laws, the applicable commencement and savings provisions should be examined rather than assuming that the same statute governs every case.

Related Provisions

• Section 47 BSA: In criminal cases, previous good character is relevant.
• Section 49 BSA: Previous bad character is generally irrelevant, except in reply, subject to the statutory provisions.
• Section 64 BNS: Rape.
• Section 69 BNS: Sexual intercourse by employing deceitful means, etc.
• Section 70 BNS: Gang rape.
• Section 74 BNS: Assault or criminal force to a woman with intent to outrage her modesty.

These provisions address different aspects of character evidence and sexual offences. Section 48 is specifically concerned with the relevance of the victim’s character or previous sexual experience when consent is in issue in the listed prosecutions.

Important Points for Law Students and Judiciary Exams

• Section 48 BSA corresponds to Section 53A of the Indian Evidence Act, 1872.
• The provision applies to specified BNS offences and attempts to commit them.
• Consent must be in issue for the rule to apply.
• Evidence of the victim’s character or previous sexual experience is not relevant to consent or the quality of consent in the covered prosecutions.
• Previous consensual sexual activity does not establish consent to the incident being prosecuted.
• The section is an evidentiary rule; it does not independently define consent for every offence.
• Lillu @ Rajesh v. State of Haryana, (2013) 14 SCC 643, is an important authority on the underlying principle.
• Aparna Bhat v. State of Madhya Pradesh, (2021) 3 SCC 247, is relevant to the broader prohibition against gender stereotypes in judicial decision-making.
• Section 48 must be distinguished from Section 47, which concerns the accused’s previous good character.

Frequently Asked Questions (FAQs)

1. What is Section 48 of the BSA?

Section 48 provides that, in prosecutions for specified BNS offences or attempts where consent is in issue, evidence of the victim’s character or previous sexual experience is not relevant to determining consent or the quality of consent.

2. Which section of the Indian Evidence Act corresponds to Section 48 BSA?

Section 48 BSA corresponds to Section 53A of the Indian Evidence Act, 1872.

3. Can previous sexual relationships be used to prove consent?

No. Where Section 48 applies, previous sexual experience cannot be used to determine whether the victim consented to the incident being prosecuted or the quality of that consent.

4. Does Section 48 apply to every sexual offence?

No. The provision lists specified BNS offences and attempts to commit them. It applies where consent is in issue and should not be extended automatically to every offence involving sexual conduct.

5. Does Section 48 prevent the court from considering all evidence about the victim?

No. It excludes the specified character and previous sexual-experience evidence for determining consent or its quality. Other evidence directly relevant to the alleged incident may still be considered, subject to the applicable law.

6. Which case is important for understanding Section 48 BSA?

Lillu @ Rajesh v. State of Haryana, (2013) 14 SCC 643, is an important Supreme Court decision explaining why a victim’s previous sexual experience cannot be used to infer consent to the incident under investigation.

7. Why is previous sexual experience irrelevant to consent?

Consent is specific to the act and circumstances in question. Previous consent to sexual activity does not establish consent to a different act or a later incident.

Conclusion

Section 48 of the Bharatiya Sakshya Adhiniyam, 2023 prevents courts from using a victim’s character or previous sexual experience to determine consent or its quality in specified sexual offence prosecutions. It ensures that consent is assessed in relation to the incident in question rather than through stereotypes or assumptions about the victim’s past.

For examinations, remember the central rule: where Section 48 applies and consent is in issue, the victim’s character and previous sexual experience are not relevant to deciding consent or the quality of consent.