Section 48 BSA 2023: Evidence of Character or Previous Sexual Experience Not Relevant in Certain Cases

Section 48 of the Bharatiya Sakshya Adhiniyam, 2023 protects the integrity of the consent inquiry in specified sexual-offence prosecutions. Where consent is in issue, the victim's character or previous sexual experience cannot be treated as relevant evidence to prove consent or the quality of consent.

Section 48 - Statutory rule: 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 an attempt to commit any such offence, where consent is in issue, evidence of the victim's character or previous sexual experience with any person is not relevant to the issue of consent or the quality of consent.

What Section 48 Means

Section 48 is a specific rule of relevance. It prevents a party from arguing that a victim was more likely to have consented merely because of the victim's character, reputation, lifestyle, or previous sexual experience. The court must determine consent from legally relevant facts connected with the alleged occurrence, rather than from stereotypes or assumptions based on past sexual history.

The provision applies when the prosecution concerns one of the BNS sections expressly listed in Section 48, or an attempt to commit one of those offences, and the question of consent is actually in issue.

Essential Ingredients of Section 48

There must be a prosecution for one of the specified offences under the Bharatiya Nyaya Sanhita, 2023, or an attempt to commit such an offence.
The question of consent must be in issue.
Evidence concerning the victim's character is not relevant to prove consent.
Evidence concerning the victim's previous sexual experience with any person is not relevant to prove consent.
The exclusion also applies to arguments about the "quality of consent".

BNS Provisions Referred to in Section 48

Section 48 expressly refers to Sections 64 to 71 and Sections 74 to 78 of the Bharatiya Nyaya Sanhita, 2023. These provisions deal with punishments and offences relating to rape and specified offences against women, including sexual harassment, assault with intent to disrobe, voyeurism and stalking.

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

Why Previous Sexual Experience Is Not Relevant to Consent

Consent is transaction-specific. A person's previous sexual relationship, past conduct, reputation or experience does not by itself establish consent to the act that is the subject of the prosecution. Section 48 therefore directs attention to the circumstances of the alleged incident and excludes reasoning based on sexual history when consent or the quality of consent is being decided.

Meaning of "Quality of Consent"

The wording of Section 48 goes beyond the bare question whether consent existed. It also excludes the victim's character and previous sexual experience from being used to assess the "quality of consent". In practical terms, the court should not treat prior sexual conduct as making present consent more probable, more credible or more complete.

Important: Section 48 is a rule about relevance of specified character and sexual-history evidence. It does not mean that every fact relating to interactions between the parties is automatically inadmissible. Admissibility depends on the purpose for which the evidence is offered and the other provisions of the Bharatiya Sakshya Adhiniyam, 2023.

Section 48 and the Earlier Indian Evidence Act

The Bharatiya Sakshya Adhiniyam, 2023 came into force on 1 July 2024. Section 48 substantially carries forward the evidentiary principle that appeared in Section 53A of the Indian Evidence Act, 1872, while updating the cross-references to the Bharatiya Nyaya Sanhita, 2023.

Related Character-Evidence Provisions

Section 48 forms part of the group of provisions dealing with when character is relevant. The immediately surrounding provisions should be read together where appropriate:

Official Government Sources

Frequently Asked Questions

What does Section 48 of the BSA provide?

It provides that in prosecutions for the specified BNS offences, or attempts to commit them, when consent is in issue, evidence of the victim's character or previous sexual experience with any person is not relevant to consent or the quality of consent.

Can previous sexual experience be used to prove consent?

Not for the purpose prohibited by Section 48. Previous sexual experience with any person cannot be treated as relevant evidence on the issue of consent or the quality of consent in the prosecutions covered by the section.

When did the Bharatiya Sakshya Adhiniyam, 2023 come into force?

The Bharatiya Sakshya Adhiniyam, 2023 came into force on 1 July 2024.