For much of legal history, cross-examination of a woman complaining of sexual assault was allowed to range across her prior sexual history — as if what had happened to her earlier could somehow answer the question of what happened this time. That reasoning has been decisively rejected. Section 48 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) makes it a rule of evidence: in the enumerated sexual-offence prosecutions under the Bharatiya Nyaya Sanhita, 2023 (BNS), the victim's character or previous sexual experience is not relevant on the issue of consent or the quality of consent.
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.
What the section does
Section 48 is a rule of exclusion. Once a prosecution falls within the listed BNS offences and the issue of consent arises, one category of evidence is simply not to be received on the consent question: the victim's character, and their previous sexual experience with any person. It does not matter how relevant the material might appear in the abstract; the section forecloses the enquiry as a matter of law.
The listed BNS offences correspond to the sexual-offence provisions the BSA is designed to work with. They cover rape and its aggravated forms, gang rape, rape by persons in positions of trust or authority, custodial and marital-context sexual violence, sexual harassment, assault or use of criminal force on a woman with intent to disrobe, voyeurism, stalking, and related offences — the modern statutory replacements for the sexual-offence provisions of the Indian Penal Code, 1860.
What Section 48 replaces
Section 48 corresponds to Section 53A of the Indian Evidence Act, 1872 (IEA) — a provision inserted after long legislative and judicial engagement with the problem of prejudicial character evidence in rape trials. The BPRD BSA-to-IEA correspondence table records "No change" in substance; the BSA reproduces the rule and simply updates the offence references from the repealed IPC to the corresponding BNS sections. That renumbering is the operative difference between the two texts.
| Aspect | Section 53A, IEA | Section 48, BSA |
|---|---|---|
| Core exclusion | Victim's character or previous sexual experience irrelevant on consent | Identical |
| Listed offences | IPC sexual-offence sections | BNS sections 64–71 and 74–78 (rape and related), plus attempts |
| Extends to attempts? | Yes | Yes — "or for attempt to commit any such offence" |
Why this exclusion exists
The provision codifies a modern understanding of sexual autonomy. Consent is fact-specific: whether a person consented to a particular sexual act with a particular person on a particular occasion. It cannot be inferred from their sexual history with others or from a general assessment of their "character." Allowing such material into a rape trial has two vices — it distracts the jury or judge from the actual question, and it deters victims from prosecuting by exposing them to intrusive and humiliating cross-examination. Section 48 removes both harms in one line.
What Section 48 does not do
The section is deliberately targeted, and it is worth being clear about its limits. It does not prohibit all evidence about the victim; it excludes evidence of character and previous sexual experience, and only on the issue of consent or the quality of consent. Evidence about the incident itself — what the victim said and did on the occasion in question, contradictions in prior statements, or evidence going to identification or to whether the incident occurred at all — is not touched by Section 48 and remains admissible under the ordinary relevancy rules. The section closes one specific avenue of enquiry, not the trial as a whole.
Nor does the section restrict character evidence about the accused, whose position is dealt with separately in Sections 47 and 49. The character-cluster in Chapter II works as a set: Section 47 admits an accused's good character, Section 49 lets the prosecution reply with bad character, and Section 48 keeps the victim's character out of the consent question entirely.
How the change from IPC to BNS references works
The one substantive update the BSA has made is to align the section's offence list with the BNS. Where Section 53A IEA listed IPC provisions, Section 48 BSA lists BNS Sections 64, 65, 66, 67, 68, 69, 70, 71, 74, 75, 76, 77 and 78 — the modern numbering for rape, aggravated forms of rape, rape by persons in authority or custodial context, gang rape, repeat offenders, and assault or criminal force on a woman intending to outrage modesty and disrobe, along with voyeurism and stalking. Prosecutors and defence counsel now looking up the equivalent provision post-BSA should cite Section 48 and the BNS section numbers, not Section 53A or the IPC.
Continuity with the wider procedural protections
Section 48 does not stand alone. It is part of a wider architecture that includes the in-camera trial procedures for such offences under the Bharatiya Nagarik Suraksha Sanhita, 2023, restrictions on publishing identifying information about the victim, and provisions requiring sensitive recording of statements. Section 48's role in that architecture is specific to evidence: no matter how a trial is conducted, this section prevents any use of character or sexual history to build an argument for consent. A defence that satisfies the procedural rules but still tries to route round Section 48 by cross-examining on prior relationships or reputation will run straight into the section's bar.
Key Takeaways
- Rule of exclusion: in the listed BNS sexual-offence prosecutions, the victim's character or previous sexual experience is not relevant on consent or the quality of consent.
- Rehousing of Section 53A IEA: the substantive rule is unchanged; the offence references have been converted from IPC to BNS.
- Attempts included: the section applies to attempts to commit any listed offence.
- Narrowly targeted: other evidence about the incident, identification, or contradictions remains admissible.
- Part of the character cluster: works with Sections 46–47, 49 and 50 to fix when character matters in civil and criminal proceedings.
Conclusion
Section 48 stands for a proposition that ought never to have needed statutory expression, and yet historically did: whether a person consented to a specific sexual act is not to be resolved by inspecting their sexual history or their general character. By carrying Section 53A of the 1872 Act into the BSA and mapping its offence list onto the BNS, the recodification preserves a hard-won protection and integrates it into the new criminal-law architecture. Its message to the courtroom is exact: consent is fact-specific, and character is not evidence of it.