The Right to a fair trial and the Indian Evidence Act

Synopsis: Acquittals in rape cases are often based on stereotypes about rape survivors and their past sexual history. But that has to change if India wants to ensure the Right to a fair trial.


During the recent judgement by the Goa session’s court in Tarun Tejpal case the court referred to the survivor’s sexual history in graphic detail. Further, the judgement held the following things,

  • The court denied accepting the victim as a sterling witness. It was stated that the survivor did not fit into the court’s preconceived ideas of a rape survivor’s behaviour.
  • This disregards the women’s struggles that forced changes in law, in case of law, and in approaches to victims of rape.
Can the court go into the details of a survivor’s sexual history?

No. Doing so would be a form of discrimination by the court.

  • It violates Article 14’s guarantee of equality before the law and the equal protection of laws.
  • Article 15 of the constitution also forbids the state from discriminating against citizens based on stereotypes related to their sex and gender

There have been many cases wherein the Supreme Court of India has warned against stereotyping rape survivors. This is because it not only violates their fundamental rights but also leads to divergent results in sentencing.

Was the sexual history of a survivor admissible in court in the past?


  • Under Section 155(4) of the Indian Evidence Act, a rape survivor’s past sexual history used to be acceptable. The rape accused could state that the rape survivor was of immoral character and claim that she consented to the sexual acts.
    • Past sexual history was used to suggest that the survivor was immoral and thus not a trustworthy witness.
    • This section was removed in 2003 after recommendations in the Law Commission of India’s 172nd report
Significant cases which led to amendments in the Indian Evidence Act: 
  • In Aparna Bhat & Ors. vs State of Madhya Pradesh case, the Supreme Court warned of the dangers of typecasting rape survivors.
    • Rape myths: It mentioned the prevalent rape myths which include fixed notions of chastity, resistance to rape, having visible physical injuries, behaving a certain way, reporting the offence immediately etc.
    • If the survivor had agreed to similar acts in the past should be irrelevant. The SC directed courts not to doubt a woman’s testament just because she was sexually active.
  • In the Mathura rape case (Tukaram vs Maharashtra, 1979), the Supreme Court released two policemen accused of raping a 14-year-old Adivasi girl in a police station. Stating that she was sexually active and considered her proof as “a tissue of lies”(Not considered her as a witness). 
    • This verdict led to the introduction of Section 114-A of the Evidence Act. It applied in serious rape cases where the accused was a police officer or member of the armed forces. 
  • In 1996, in the Punjab v Gurmit Singh case, the SC warned courts against making remarks about the rape survivor’s character. It stated that a woman who was sexually active could still refuse to consent. 
  • In 2013, the JS Verma Committee, created after the Delhi 2012 rape case, suggested that a past relationship between the accused and the victim should be inapt while deciding whether the victim consented. 
  • The Criminal Law (Amendment) Act, 2013 united many of such judgements and recommendations into legal law. 
    • Section 53A of the Evidence Act stops courts from depending on evidence of the character of the victim. Such as her prior sexual experience with any person to decide questions of consent in sexual assault cases. 
    • The 2013 Act also amended Section 146 so that a rape survivor cannot be asked questions about her immoral character or prior sexual experience to prove consent.
    • The 2013 amendment also introduced a fixed minimum sentence of seven years imprisonment for rape (This is increased in 2018 to 10 years) and 10 years for serious rape. 
How the 2013 amendment impacted the conviction rates in rape cases?

Studies show that conviction rates fell after the 2013 amendment. In a review of 1,635 rape judgements passed by Delhi trial courts between 2013 and 2018, the conviction rate fell from 16.11% under the old law to 5.72% under the new law. This is due to the following reasons. Such as,

  • Survivors were doubted because of varying statements at several stages of the trial,
  • Failure to reveal details of the incident to anybody,
  • Delay in registering the complaint.

The rape stereotypes and dependence on past sexual history are damaging for rape survivors and the criminal justice system. The right to a fair trial under Article 21 states that cases should be decided on facts. Acquittals based on stereotypes impair the faith of the public in the criminal justice system.

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