The contemporary status of rape shield laws in India
| Author | Nikunj Kulshreshtha |
| DOI | http://doi.org/10.1177/13657127221139506 |
| Published date | 01 January 2023 |
| Date | 01 January 2023 |
| Subject Matter | Articles |
The contemporary status of rape
shield laws in India
Nikunj Kulshreshtha
Jindal Global Law School, OP Jindal Global University, Sonipat, India
Abstract
This article critically analyses the current status of rape shield laws in India. The article begins
by assessing the effectiveness of these laws by examining the statutory provisions and judicial
precedents in India using a doctrinal methodology. The article would then assess the status of
rape shield laws and their jurisprudence in England and Wales, and Canada for a comparative
assessment and to draw valuable lessons for the Indian jurisdiction. It would also help address
growing concerns about the possible overreach of these laws on the defendant’s right to a fair
trial. Finally, the article will conclude with possible solutions for effectively implementing these
laws in India while balancing the interests of the accused and the complainants.
Keywords
law of evidence, legal realism in India, Indian rape shield law, prior sexual history, right to a fair
trial
Introduction
At the outset, it is essential to note that the rape law in India recognises only men as perpetrators and
women as victims. Rape shield laws are meant to prevent lawyers from cross-examining complainants
1
concerning their previous sexual history (PSH). Defence lawyers often reference the complainant’s PSH
to impeach her credibility as a witness or to convince the court of the likelihood of her consenting to the
act. Multiple studies conducted time and again in Indian courts have established this as a fact (Baxi, 2014;
Maheshwari, 2014; Vishwanath, 2020). In the aftermath of the horrific gang rape and murder of a physio-
therapy student in a bus in December 2012, the government reformed various sexual violence laws.
2
The Indian Evidence Act (IEA), prior to 2013, had two generic sections—ss. 151 and 152 of the
Evidence Act, 1872—which forbade indecent and irrelevant questions during cross-examinations to
Corresponding author:
Nikunj Kulshreshtha, Jindal Global Law School, OP Jindal Global University, Sonipat, 131001, India.
E-mail: nkulshreshtha@jgu.edu.in
1. The words ‘complainant’,‘victim’,‘survivor’and ‘prosecutrix’are used interchangeably for a rape victim throughout this article.
2. The Criminal Law (Amendment) Act, 2013 (India).
Article
The International Journal of
Evidence & Proof
2023, Vol. 27(1) 3–25
© The Author(s) 2022
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DOI: 10.1177/13657127221139506
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prevent attempts to harass and intimidate witnesses. These were ss. 151 and 152 of the Evidence Act,
1872. Section 151 states that the court may forbid indecent or scandalous questions even if they have
some significance unless they are pertinent to the issue at hand. Section 152 states that the court may
forbid any question that is insulting and offensive to the witness. However, the Criminal Law
Amendment Act, 2013, introduced a new s. 53A which states that in prosecution for sexual offences
against women, evidence of her character or previous sexual experience with any person would not be
relevant for deciding the issue of consent or its quality.
3
The amendment also enhanced the wording
of s. 146 of the IEA, 1872, which unequivocally prevented reference to PSH for determining the question
of consent during cross-examinations.
Notwithstanding the above, literature continues to assert that these changes have not caused any sig-
nificant effect on the functioning of courts concerning sensitivity towards rape victims, nor have they
actively prevented humiliating cross-examinations by counsels for the accused (Partners for Law in
Development, 2015; Shetty, 2020). A study conducted by Partners for Law in Development (PLD)
4
between 2014 to 2015 noted that cross-examinations are known to be the most hostile stage of the
victim’s experience in the trial process. The defence counsel routinely poses sexually explicit questions,
aiming to insinuate consent of the complainant by proving that there was a lack of resistance, whereas the
law on this issue is firmly settled that such questions are irrelevant (PLD, 2015: 10, 59, 63). This article
seeks to demonstrate the current status of these laws in India and address concerns regarding the potential
overreach of these laws on the defendant’s right to a fair trial. There is a lack of original doctrinal analysis
on rape shield laws in India. This article attempts to address this gap in the scholarly literature by con-
tributing to the development of evidentiary jurisprudence of these laws. This would be done by analysing
the jurisprudence of appellate courts via judicial precedents on rape shield provisions from their enact-
ment in 2013 till 2021. However, the author acknowledges the limitation of this study, wherein it
does not assess the decisions of original courts. It will only assess appellate courts’reported decisions,
such as State High Courts and the Supreme Court of India, which refer to ss. 53A, 146 of the IEA,
1872. This is because trial court judgments are not reported in India and, therefore, are not easily access-
ible. Further, referring to precedents of appellate courts helps one understand the developing trends con-
cerning the interpretation and development of the law by an influential section of the judiciary in India. In
this sense, this article makes an original contribution to the study and implementation of rape shield laws
in India.
The article has been divided into three parts. The first part assesses the reported decisions of State High
Courts and the Supreme Court of India on statutory rape shield laws in India. The second part critically
analyses the status of jurisprudence on rape shield laws in England and Wales, and Canada. This is being
done to engage in a comparative assessment to draw valuable lessons for the Indian jurisdiction consider-
ing that these jurisdictions framed these laws almost two decades ago and have had experience dealing
with its issues. England and Wales and Canada have been specially selected because the Indian legal
system has adopted several features from these jurisdictions.
5
Further, both these jurisdictions give
primacy to the laws enacted by the federal government vis-à-vis the provincial ones, which is similar
to India, unlike jurisdictions such as the USA. Also, there is a growing amount of literature in these jur-
isdictions on how these laws may undermine an accused’s right to a fair trial through overreach.
Therefore, such a comparative assessment could assist in determining a balanced approach to these
3. Ibid.
4. PLD is a legal resource group based in India, pursuing the realisation of social justice and equality for women using the tools of
empirical research, activism and policy analysis.
5. The Indian Constitution has adopted the features of parliamentary government, rule of law, and legislative procedure amongst
others from the English legal system. Similarly, vesting residual powers with the centre, central powers to appoint the governor,
and advisory jurisdiction of the Supreme Court have been adopted from the Canadian legal system. Moreover, judicial precedents
from both these jurisdictions are regularly cited in the decisions of constitutional courts in India.
4The International Journal of Evidence & Proof 27(1)
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