“No Means No”: Section 149 BSA and the Evidentiary Dignity of the Prosecutrix

By Onam Sourabh & Avinash Verma, Students at the National University of Study and Research in Law, Ranchi

Pink, the 2016 Bollywood courtroom drama that transcended beyond the boundary of a cinema to reflect an elementary yet intense subject: ‘No means no’. Amitabh Bachchan takes on a whole lot of conventional wisdom to declare that clothes or lifestyle or sex partners do not indicate consent. What played out on the big screen was a realisation of a legal state our courts had been articulating for long and finally one which finds legislative sanctity under Section 149, Bharatiya Sakshya Adhiniyam, 2023 (BSA). This provision prohibits cross-examination with regard to the character of the general immoral or a prior sexual experience of the victim in prosecutions for sexual offences for proving consent.

The in-built anchor is constitutional (protection of the dignity, privacy and autonomy of the prosecutrix under Articles 14 and 21) but it also reinforces the integrity of the fact-finding process by ensuring that a trial remains focused on facts of the particular incident rather than be derailed via character assassination or to start passing a moral judgment.

From Colonial Evidence Rules to Victim-Centric Safeguards

Section 120 BSA (formerly Section 114-A of the Evidence Act), which stipulates that once sexual intercourse is proved and the prosecutrix testifies to absence of consent, the court shall presume non-consent. This statutory presumption shifts the evidentiary burden to the accused a deliberate policy choice recognising the unique evidentiary challenges in prosecuting sexual crimes, where often the only direct evidence is the testimony of the victim herself.

The principle underlying Section 149 had been taking shape in judicial pronouncements. In State of Punjab v. Gurmit Singh (1996) 2 SCC 384, the Supreme Court famously declared: “Even if the prosecutrix… has been promiscuous in her sexual behaviour earlier, she has a right to refuse… because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone” (para 16).

 Likewise, in State (NCT of Delhi) v. Pankaj Chaudhary (2019) 11 SCC 575, the Court observed: “Even if the allegations of the accused that the prosecutrix is of immoral character are taken to be correct, the same does not give any right to the accused persons to commit rape on her against her consent” (para 27). And in State of Maharashtra v. Madhukar Narayan Mardikar (1991) 1 SCC 57, the Court went further, stating: “Even a woman of easy virtue is entitled to privacy… and is equally entitled to the protection of the law” (para 12). These pronouncements dismantle the “implied consent” myth and firmly anchor the legal standard in the prosecutrix’s autonomy, underscoring that her past cannot diminish her present rights.

The Presumption of Absence of Consent

Section 120 BSA reinforces this protection with a presumption that, once the prosecutrix testifies to the absence of consent and sexual intercourse is proved, the court shall presume non-consent. In Yedla Srinivasa Rao v. State of A.P. (2006) 11 SCC 615, the Court clarified: “…where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states… that she did not consent, the court shall presume that she did not consent” (para 15). Similarly, in Anurag Soni v. State of Chhattisgarh (2019) 13 SCC 1, the Court held that such a presumption leaves no scope for drawing inferences of consent from surrounding circumstances or prior intimacy unless the accused can produce compelling and credible rebuttal evidence. 

In Maksud Sheikh Gaffur Sheikh v. State of Maharashtra, 2025 SCC OnLine Bom 2151, the Bombay High Court reaffirmed the fundamental principle that sexual consent must be explicit, informed, and contemporaneous, and that its absence renders sexual intercourse an offence under §375 IPC. The Bench, speaking through Nitin B. Suryawanshi and M.W. Chandwani, JJ., emphasised that rape is not merely a sexual offence but an act of aggression violating the victim’s bodily integrity, mental autonomy, and privacy. The Court categorically rejected any presumption of consent based on a woman’s past sexual history, invoking §53A of the Indian Evidence Act to exclude character evidence as irrelevant to the question of consent. Significantly, it clarified that prior intimacy does not confer perpetual licence for sexual access, and that a refusal a “No” is conclusive in law. The judgment further underlined that even within prior or ongoing relationships, consent must be specific to each act and may be withdrawn at any time, thereby reinforcing the autonomy and dignity of the prosecutrix. 

In Rajkumar v. State of Karnataka, 2024 SCC OnLine SC 257, the Supreme Court, per Aniruddha Bose and Sanjay Kumar, JJ., reaffirmed that consent in sexual relationships is not a static or once-for-all grant, but must be present at every stage of the relationship. While acknowledging the precedent in Shambhu Kharwar v. State of Uttar Pradesh (2022 SCC OnLine SC 1032) that a genuinely consensual relationship does not attract the offence of rape, the Court clarified that the consensual nature of an initial phase does not immunise later acts from scrutiny if one partner withdraws consent. The Bench stressed that the moment one party expresses unwillingness to continue, the relationship loses its consensual character, and any sexual act thereafter would be assessed in light of §375 IPC. By distinguishing between past consent and continuing consent, the judgment reinforced the principle that sexual autonomy is ongoing, dynamic, and revocable.

In RIT Foundation v. Union of India, the Delhi High Court engaged in a profound constitutional and human rights analysis of marital rape, holding that non-consensual sex within marriage is as violative of dignity, bodily integrity, and personal liberty as sexual assault outside it. The Court underscored that under Article 21 of the Constitution, the offence of rape is defined by the absence of consent, not by the identity of the perpetrator, and that the marital relationship cannot be a shield for forced sexual intercourse. Observing that modern marriage is a relationship of equals, the Court rejected any notion that a wife gives irrevocable consent to sexual relations by virtue of marriage, affirming her right to withdraw consent at any time. 

In State of Maharashtra v. Madhukar N. Mardikar, the Supreme Court categorically held that a woman’s sexual history or perceived “unchastity” does not diminish her right to bodily integrity, autonomy, and legal protection. The Court observed that “the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes,” emphasising that even a woman of “easy virtue” has an inviolable right to refuse sexual contact and to be shielded by the law when her autonomy is threatened. This principle, grounded in the dignity and equality guarantees under Articles 14 and 21 of the Constitution, has been reinforced legislatively by the insertion of a proviso to §146(3) of the Indian Evidence Act, 1872 via the Indian Evidence (Amendment) Act, 2002. The amendment prohibits the cross-examination of a rape victim on her past sexual history, recognising that such inquiries inflict unnecessary emotional trauma, distract from the issue of consent, and perpetuate harmful stereotypes. By disallowing character assassination in sexual offence trials, the combined effect of the Mardikar ruling and the statutory reform aligns the jurisprudence with a rights-based approach that evaluates consent in the present moment, free from prejudicial reliance on a complainant’s sexual past.

The Sole Testimony of the Prosecutrix

In Vishnu alias Undrya v. State of Maharashtra (2006) 1 SCC 283 and State v. N.K. (2000) 5 SCC 30, the Supreme Court reaffirmed that corroboration is not a legal necessity where the testimony inspires confidence. As Gurmit Singh reiterated: “If the evidence of the victim does not suffer from any basic infirmity… there is no reason to insist on corroboration except from medical evidence, where… it can be expected to be forthcoming.” This approach aligns perfectly with Section 149’s purpose: ensuring that the victim’s testimony is judged on its intrinsic worth, untainted by prejudice rooted in her past.

As read together Sections 149 and 120 BSA, with the other allied provisions dealing with examination of witnesses emerged a coherent evidentiary regime outlining space for the dignity of a prosecutrix while permitting such possible defences as may be available within the four corners of law to an accused. 

Yet the cinematic directive to Pink and the statutory dictum of Section 149 are not too far from each other, in effect reinforcing that a woman’s “no” is enough by itself regardless of her past behaviour or her purported chasteness. The court is in the business of establishing facts and applying law, not judging someone’s worth on the moral scale based on their testimonies.

That, by itself strengthens the prosecution as well as generates confidence in the ability of justice system to enforce the rights of victims without vitiating the principles that ensure a fair trial in a criminal case. In the process it takes a firm stride toward a legal culture where justice follows individual dignity over societal prejudice. Thus, both in cinema and in statute, the message converges: a woman’s “no” stands independent of her past, and the justice system must ensure that trials for sexual offences remain arenas of fact-finding not moral adjudication of the victim’s life choices.

References- 

1. Bharatiya Sakshya Adhiniyam, No. 46 of 2023, §§ 120, 137, 138, 146, 149, 155 (India).
2. Indian Evidence Act, No. 1 of 1872, §§ 114-A, 146, 155 (India) (repealed).
3. State of Punjab v. Gurmit Singh, (1996) 2 S.C.C. 384 (India).
4. State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 S.C.C. 575 (India).
5. State of Maharashtra v. Madhukar Narayan Mardikar, (1991) 1 S.C.C. 57 (India).
6. Yedla Srinivasa Rao v. State of A.P., (2006) 11 S.C.C. 615 (India).
7. Anurag Soni v. State of Chhattisgarh, (2019) 13 S.C.C. 1 (India).
8. Vishnu alias Undrya v. State of Maharashtra, (2006) 1 S.C.C. 283 (India).
9. State v. N.K., (2000) 5 S.C.C. 30 (India).
10. Collector of Madura v. Mootoo Ramalinga Sathupathy (Ramnad Case), (1869) 12 Moore’s Ind. App. 397 (P.C.).
11. Maksud Sheikh Gaffur Sheikh v. State of Maharashtra, 2025 SCC OnLine Bom 2151.
12. Rajkumar v. State of Karnataka, 2024 SCC OnLine SC 257.
13. RIT Foundation v. Union of India, 2023 SCC OnLine Del 1083, aff’d in part, appeal pending, Supreme Court of India.