19 Jan 2022 7:51 AM GMT
It has often been stated by activists, policy makers and judges alike that rape trials victimise the rape survivor by subjecting her to a series of harrowing experiences, from the medico-legal examination to harassment by the police, disturbing cross-examinations and in several cases, the questioning of her character by lawyers, judges and the public. To make the process...
It has often been stated by activists, policy makers and judges alike that rape trials victimise the rape survivor by subjecting her to a series of harrowing experiences, from the medico-legal examination to harassment by the police, disturbing cross-examinations and in several cases, the questioning of her character by lawyers, judges and the public. To make the process of rape trials less painful for the survivor, amendments to criminal law statutes and the Indian Evidence Act have been made over several decades, beginning in 1983 in the aftermath of the Mathura gang-rape case. The Amendment Act of 2013 is the most recent attempt made by the legislature towards this end, prompted by the Delhi gang-rape case. Some of the reforms brought about as part of these 'rape shield legislations' include mandating in camera trials, and reforming the evidentiary rules to make evidence adduced with respect to the character of the victim, or her sexual history, irrelevant.
The following essay shall discuss the relevance, admissibility and probative value of character evidence of the Prosecutrix in a Rape Trial. In order to gain a better understanding of the current position, the author shall trace the historical development of the provisions of the Evidence Act relating to Character evidence. The author shall also discuss important Supreme Court cases on this issue.
The character of the Prosecutrix was used for two purposes, First, when consent was in question, the past sexual history of the Prosecutrix was used to suggest that she must have consented to sexual intercourse with the accused as she generally consents to it with other men as well. In effect, this use suggests that women habituated to sexual intercourse are likely to consent to sexual intercourse. Such a submission was made under the S.155 (4) of the Evidence Act, which provided that when a man is prosecuted for rape or an attempt to ravish, it may be shown that the Prosecutrix was of generally immoral character.
Secondly, character evidence was also used during cross-examination to suggest that a woman habituated to sexual intercourse is of immoral character and thus, will not have any moral inhibitions to lying. It must be kept in mind that the rape survivor is serves both as the Prosecutrix and Witness in her own trial. Under S 146(3) of the Evidence Act, which deals with questions which may be put to a witness in the course of cross examination, it is permissible to ask any question which tends to shake the credit of the witness, by injuring his character. This second use of character evidence threatens to discredit the entire testimony of the Prosecutrix.
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These provisions were used extensively by the accused to suggest that the act was consensual and to demonstrate that the Prosecutrix was a woman of loose morals and unchaste and hence her version is to be discredited. The use of these provisions to cast light on the past sexual history of the victim continued unchecked until the year 1980, when the Law Commission of India in its 84th Report recommended amendments to make evidence regarding the character and past sexual history of the Prosecutrix irrelevant in rape trials. The Commission noted that there was absolutely no justification to retain the provisions with respect to past sexual relations with other persons and stated that "even when a harlot or a prostitute is raped, her consent at the time of commission of the crime must be proved by concrete evidence." In other words, even if the prosecutrix is of easy virtue/unchaste woman that itself cannot be a determinative factor and the court is separately required to adjudicate whether the accused committed rape on the victim on the occasion complained of.
The commission further noted that evidence regarding past sexual history and character cannot be adduced in cases where consent is not in issue. Even though the legislature failed to immediately act on these suggestion, these principles slowly began to be recognised by the courts. In one such case in 1990, State of Haryana v Rem Chand the court clarified that "the character or reputation of the victim had no relevance or bearing either on the matter of adjudging the guilt of the accused or punishment imposed under S.376 of the Indian Penal Code." These recommendations were acted upon by the legislature as late as in 2003 when S.155 (4); the provision allowing the use of character evidence to imply consent, was repealed. The court also recognised this principle and in State of U.P. v Pappu Yunus and Anr, the court eloquently explained the rationale behind this principle. The court said that "even if it is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot in law give license to any person to rape her. Even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone." Thereafter, in a number of cases the court declined entertaining any argument on behalf of the accused based on the contention that the victim of rape herself was an unchaste woman, and a woman of easy virtue based upon the principle that unless the character of the prosecutrix itself is in issue, her character is not a relevant factor to be taken into consideration at all.
In addition, such a line of questioning was expressly barred by inserting a proviso to S.146 Evidence Act, stating that 'the general character of the Prosecutrix as a witness, cannot be questioned during cross-examination.' The justification behind this proviso was that merely because a woman is of easy virtue, her evidence cannot be discarded on that ground alone rather it is to be cautiously appreciated. 
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Despite these legislative reforms, character continued to be routinely adduced, partly because of shoddy draftsmanship, since the express bar against usage of character evidence was limited only to instances where the character of the Prosecutrix as a witness during cross-examination was in question. In other words even though sub-section (4) of S.155 had been repealed, there was no express prohibition against adducing character evidence to prove consent. Thus, the accused, in a number of cases, continued to adduce character evidence to show that the victim was of a sexually immoral character who would have no inhibition to consent to such an act. In 2013, in the aftermath of the Nirbhaya Rape Case a shield was sought to be introduced in the Evidence Act to bar character evidence altogether. Therefore, S.53A was inserted, which made character evidence irrelevant on the issue of consent or the quality of consent altogether. However, at the same time, an amendment was brought to the Proviso to S.146, providing that 'questions as to the general immoral character of the victim cannot be put to into question… when consent is in issue.' The major discontent with this amendment is that while the earlier proviso barred such questions altogether, the protection extended by the new proviso is too narrow and extends only to cross-examination on the issue of consent. As explained above, evidence law as it stands now leaves the possibility of the entire testimony of Prosecutrix being challenged if she is proven to be a habitual liar, open, because of her 'immoral character.' While the law does permit any question that casts aspersion on the character of the witness so as to discredit his/her testimony, it must be limited to certain specific cases if the fact in issue was concerning the paternity of the child; it should have no relevance in a Rape trial. It was observed even by the 84th Law Commission Report that "it is wrong to assume that a female witness is less likely to tell the truth when she has a generally immoral character." In certain cases, the While every latitude should be given to the accused to test her version through cross-examination, the court must also ensure that cross examination is not made means of harassment or causing humiliation to the victim of the crime.  While the past sexual history of the victim is relevant in certain specific cases, It must not be forgotten that it is the accused who is at trial, not the victim. The Act must make sure that it does not permit the accused to take recourse to Clause (3) of S.146 to ask all sorts of questions which are not necessary to shake the credibility of the witness. While the court will not rely on such an admission, it will lead to unnecessary harassment of the Prosecutrix during the trial. The Indian legislature must adopt relating to character evidence of Prosecutrix in a Rape trial as it exists under English Law. English Law provides that "except with the leave of the court, no evidence may be adduced and no evidence asked in cross-examination by or on behalf of the accused at trial about any sexual behaviour of the complainant."
In view of the above discussion, it can be concluded that character evidence of Prosecutrix of a Rape trial is largely irrelevant as far as the question of her consent to the act is in issue. Also, no questions regarding the moral character of the Prosecutrix or her previous sexual experience are permissible in cross examination when she appears as a witness, but the language of S.146 as it stands currently leaves the possibility of such evidence being used to discredit the testimony of the witness. Ultimately, it is left to the judges presiding over rape trials to ensure that questions relating to the character of the victim, however remote, are not allowed to be posed during the trial and ensure that sentencing is also not influenced by the past sexual history and character of the victim.
 The term "survivor of rape" and "prosecutrix" have been used interchangeably here.
 84th Law Commission of India Report, Rape and Allied Laws: Some questions of Substantive Law, Procedure and Evidence, 36 (1980), available at lawcommissionofindia.nic.in/51-100/report84.pdf , last accessed on 20/08/2016.
 The Indian Evidence Act, 1872. Hereinafter referred to as the 'Evidence Act'.
 Tukaram v. State of Maharashtra, A.I.R 1979 SC 18
 S.5, Indian Evidence Act,1872.
 Saumya Maheshwari, The Language of Evidence in Rape Trial, Socio-Legal Review, available at www.sociolegalreview.com/wp.../12/The-Language-of-Evidence-in-Rape-Trials.pdf, last accessed on 20/08/2016.
 S.155(4) of the Indian Evidence Act. Clause (4) was omitted by Act 4 of 2003.
 Supra 6.
 S.146(3), Indian Evidence Act,1876. "When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend…(3) 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."
 Norton Rose Fulbright & Bangladesh Legal Aid and Services Trust, Character Evidence in Rape Trials: A Comparative Study of Rape Shield Laws and the Admissibility of Character Evidence in Rape Cases, available at www.trust.org/contentAsset/raw-data/7c70a653-6c85-4734-981b.../file , last accessed on 21/08/2016
 Supra 2.
 Supra 2.
 A.I.R. (1990) S.C. 538.
 Clause (4) omitted by Criminal Law (Amendment) Act, 2002 ( 4 of 2003), Sec.3.
 AIR 2005 SC 1248
 See, Narender Kumar v State, (2012) 7 SCC 171.
 Ins. by the Indian Evidence (Amendment) Act, 2002 (4 of 2003), Sec.2. The proviso stood as – " Provided that in a prosecution for rape or attempt to commit rape, it shall not be permissible to put questions in the cross examination of the Prosecutrix as to her general immoral character."
 See, State of Maharashtra and Anr. v. Madhukar Narayan Mardikar , AIR 1991 SC 207
 Inserted by Criminal Law (Amendment), 2013, (13 of 2013), Sec.25.
 Subs. by Criminal Law (Amendment) Act,2013 (13 of 2013), Sec.28.
 The proviso, after substitution, stood as- " Provided that in a prosecution for an offence under S.376, S.376A…..where the question of consent is in 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 quality of consent."
 Supra 6.
 Supra 2.
 State of Punjab v Gurmit Singh, 1996 SCC (Cr) 316 in Woodroffe and Amir Ali, Law of Evidence, 19th ed., (2013) 5284.
 See, S.41–43, Youth Justice and Criminal Evidence Act, 1999.