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Author: APRAJITA VASHISHTA, 3rd year B.A.LL.B.(hons)student at NMIMS.
” A woman cannot be herself in the society of the present day, which is an exclusively masculine society, with laws framed by men and with a judicial system that judges feminine conduct from a masculine point of view.”
— Justice S. Ravindra Bhat, Aparna Bhat v. State of Madhya Pradesh (2021)
This statement clearly reveals how the Indian justice system continues to mirror deeply ingrained gendered presumptions, shaping an utterly awful courtroom experience for survivors of sexual violence. The victim’s behaviour, relationships, lifestyles and perceived “character” have routinely been placed under the microscope, allowing patriarchal prejudice as a basis for evidentiary evaluation. Acknowledging the distorting impact of such practices, the Supreme Court, in December 2025, in the matter which was heard as a Suo-moto cognisance case after an order which the Allahabad High Court passed in March, where it held that mere ‘grabbing of breasts’ and ‘pulling down’ the strings of the pyjama to ‘bring down’ the lower garment were insufficient facts in establishing the intent of rape by the accused. While passing a stay order for the same, the division bench consisting of the Honourable Chief Justice of India Surya Kant and Justice Joymalya Bagchi unequivocally initiated steps towards framing guidelines to curb the use of stereotypical and prejudicial language in sexual-offence proceedings. This intervention rests on the notion that judicial language is never neutral. The words employed by a judge shape credibility, influence outcomes, and must therefore conform to constitutional mandates of dignity, equality, and non-discrimination.
Provisions under the Bharatiya Sakshya Adhiniyam, 2023 (BSA), significantly reinforce this judicial direction. The statute explicitly excludes[i] the survivor’s prior sexual history where consent is disputed in prosecutions under Sections 64–79 of the Bharatiya Nyaya Sanhita, 2023 (BNS). It further introduces a statutory presumption of absence of consent under Section 120[ii] BSA in cases falling within Section 64(2) BNS, once sexual intercourse is established and the survivor asserts lack of consent. This presumption curtails judicial reliance on outdated notions relating to delayed reporting, emotional responses, or perceived absence of resistance. Additionally, the BSA also prohibits[iii] inquiries into a survivor’s so-called moral character or past sexual conduct in cases under Sections 64–71 BNS. When read alongside Sections 148 to 151, the statute mandates courts to actively prevent questioning that is unwanted, embarrassing, or disproportionate. Notably, Section 151(2)[iv] empowers judges to withdraw queries made into the remote personal matters, such as past pregnancies or relationships, that bear no legitimate relevance to credibility. Collectively, these provisions represent a significant step towards a more protective evidentiary environment for survivors.
Even judicial questioning under Section 168[v] BSA, though statutorily permitted, must be exercised with constitutional restraint. Justice Birkett’s caution remains particularly relevant:
“Witnesses subjected to prolonged, sarcastic, or hostile questioning by the presiding judge may become frightened or confused, creating the perception that the scales of justice are no longer evenly held.”
When interpreted through a constitutional lens, Section 168 requires that judicial clarification must not devolve into judicial intimidation. The Supreme Court’s forthcoming guidelines are expected to institutionalise this balance by clearly delineating the limits of judicial intervention during examination.
Heightened safeguards apply where the survivor is a child. Under the POCSO Act, 2012, Section 33(6)[vi] expressly prohibits aggressive questioning or character assassination of the child, which shall not be permitted by the Special Court and mandates that proceedings be conducted in a manner that prioritises the child’s psychological safety. The trial process must not become a source of additional trauma.
Judicial precedent has long echoed these statutory protections. In State of Punjab v. Gurmit Singh (1996)[vii], the Supreme Court cautioned that:
“A victim of rape… may be too ashamed or nervous to speak, and her silence may be wrongly taken as a contradiction.”
This judgment was among the earliest to emphasise trauma-sensitive adjudication. The Supreme Court, even in the past, has held a strong stance against insensitive remarks and orders made during trial. For example, in 2021,[viii] the SC reprimanded the Madhya Pradesh High Court’s direction requiring the complainant to tie a ‘Rakhi’ to the accused, holding that symbolic gestures trivialising sexual violence violate dignity and cannot be conditions for bail. Likewise, in (2022)[ix], the Supreme Court reiterated the two-finger test as unconstitutional, and upheld that past sexual history cannot be slyly introduced to imply the presence of consent. These rulings collectively reaffirm that dignity cannot be compromised in the name of judicial process.
In this context, the Supreme Court’s directives must establish a strong and actionable framework. Initially, they should require strict adherence to the protective measures of the BSA, especially Sections 154 and 155, which prohibit indecent, scandalous, or insulting inquiries. Trial courts must be directed to record and report instances where counsel pursue questioning without reasonable grounds, ensuring accountability and oversight.
Next, the guidelines must strengthen the legal mandate for in-camera trials as stated in Section 366 of the Bharatiya Nagarik Suraksha Sanhita, 2023[x], for cases involving rape and sexual offences. Privacy in such proceedings is essential to safeguard the survivor’s dignity while maintaining the integrity of the judicial process.
Third, judicial inquiry ought to be conducted with a principle of restraint rather than a confrontational interrogation. Although judges may pursue clarification pursuant to Section 168 BSA, they mustn’t dominate the proceedings or assume the function of the defence. The guidelines should underscore a commitment towards neutrality, strictness against sarcasm or manifestations of frustration that could potentially intimidate witnesses.
Fifth, the guidelines must end all loopholes that allow indirect introduction of the past sexual history of the victim despite the prohibitions under Sections 48, 120, and 149 BSA. Such as, relationship history, old pregnancies, or previous partners should be deemed irrelevant unless directly connected to the facts in issue, and medical evidence must not be used to suggest “habituation” or promiscuity. Any indirect character attack must be halted immediately.
Sixth, clear guardrails for cross-examination are essential. While adversarial questioning is central to a fair trial, it must not become a vehicle for psychological harm. Courts should intervene where counsel pursue irrelevant personal details, frame questions to shame or embarrass, or rely on stereotypes about “ideal” victim behaviour.
Seventh, the guidelines must reiterate stronger protections for child survivors under the POCSO Act. Child testimony should be facilitated in a manner that ensures safety rather than fear.
Conclusion-
This initiative by the Supreme Court aligns the judicial practices with the principles enshrined in the BSA 2023, BNS 2023, BNSS 2023 and the POCSO Act 2012. The Court reiterates that the quest for truth must not be conducted at the cost of the dignity of survivors. Nevertheless, substantial reform calls for more than mere legal prescriptions; it demands that judges, prosecutors, and defence counsels recognise that dignity, equality, and trauma-informed approaches are core principles rather than optional considerations, forming the foundation of a just trial. A courtroom engaging in an unbiased administration of justice devoid of humiliation is not merely an aspiration; rather, a representation of a constitutional commitment. The realisation of this commitment is essential for transforming the justice system into an environment that survivors can rely upon, rather than a realm they are compelled to withstand. It is devoid of neutrality. The language employed by a judge possesses the capacity to influence credibility evaluations and, as such, must adhere to the constitutional protections afforded.
The above information are the author’s personal views, which are based on precedents of the state of Punjab vs Gurmit Singh (1996), Aparna Bhat vs State of Madhya Pradesh (2021), State of Jharkhand v. Shailendra Kumar Rai (2022) and various provisions of Bhartiya Sakshaya Adhiniyam (2023), Bhartiya Nyaya Sanhita (2023), POCSO Act (2012) and Bhartiya Nagarik Suraksha Sanhita (2023).
[i] Section 48, BSA 2023– Evidence of character of previous sexual experience not relevant in certain cases
[ii] Section 120, BSA 2023- Presumption as to absence of consent in certain prosecutions for rape
[iii] Section 149, BSA 2023-Questions lawful in cross-examination
[iv] Section 151, BSA 2023- Court to decide when question shall be asked and when witness compelled to answer.
[v] Section 168, BSA 2023-Judge’s power to put questions or order production.
[vi] Section 33. POCSO Act 2012– Procedure and powers of the ++–Special Court.
[vii] (1996) 2 SCC 384
[viii] Aparna Bhat v. State of Madhya Pradesh (2021) SCC OnLine SC 230
[ix] State of Jharkhand v. Shailendra Kumar Rai (2022) SC 1441
[x] Section 366, Bhartiya Nagarik Suraksha Sanhita,2023 – Court to be open.
