Character Evidence under Sections 46 to 50 of the Bharatiya Sakshya Adhiniyam, 2023: Good Character, Bad Character, Previous Conviction and Damages

Evidence about what kind of person somebody is has an obvious appeal and an obvious danger. It appeals because character does bear on conduct; it is dangerous because a tribunal invited to reason from character to guilt is being invited to convict a man for who he is rather than for what he did. Sections 46 to 50 resolve the tension by an asymmetry that is deliberate and is the key to the whole group: an accused may prove his good character, and the prosecution may not prove his bad character until he does.

1. The Scheme

Five sections close Part II of the Adhiniyam, and they correspond to Sections 52 to 55 of the Indian Evidence Act, with Section 48 corresponding to Section 53A, which was inserted by the Criminal Law (Amendment) Act, 2013.

2. What 'Character' Means

The Explanation appended to the last of these sections defines the term for the whole group, and it does two things — it widens the concept and then narrows the manner of proving it.

Reputation is what a person is thought to be by those among whom he lives. Disposition is what he actually is. The two are not the same — a man of bad disposition may enjoy an excellent reputation, and the reverse is equally possible — and the Explanation brings both within the term.

The limitation that follows is more important than the definition. Evidence may be given only of general reputation and general disposition, and not of particular acts. A witness may say that the accused is known in his locality as an honest man; he may not recount the occasions on which the accused returned money he could have kept. A witness for the prosecution, where bad character has become relevant, may say that the accused is reputed to be violent; he may not describe the assaults.

3. Section 46 — Character in Civil Cases

The rule in civil litigation is exclusion. A defendant sued for fraud may not prove that he is an honest man, and the plaintiff may not prove that he is a rogue. The question is what happened on the occasion in issue, and character evidence would distract the court from it while adding very little.

The exception is narrow but real: character is not excluded so far as it appears from facts otherwise relevant. Where a fact is relevant on some independent ground and happens to disclose character, it is not excluded because of that disclosure. A course of dealing relevant under Section 11, previous conduct relevant under Section 6, or a series of similar occurrences relevant under Section 13 may all reveal a great deal about a party's character, and none of them becomes inadmissible for that reason.

The distinction is between evidence tendered to prove character and evidence tendered for another purpose that incidentally discloses it. Section 46 excludes the first and leaves the second alone.

4. Section 47 — Previous Good Character of an Accused

The provision is unqualified. An accused may always prove his good character, whatever the offence charged, and whether or not it has been attacked. He does not need the court's leave and no condition attaches.

Two reasons are given for the rule, and both are sound. The first is that good character genuinely bears on probability: a man of established honesty is less likely to have committed a dishonest act than a man without such a record. The second is fairness — the prosecution has the resources of the State, and permitting the accused to place his standing before the court costs little and may matter a great deal in a marginal case.

What good character is worth varies. In a case turning on documents and forensic findings it will not displace the evidence, and courts have consistently said that character cannot outweigh proof. Where the case is finely balanced, or turns on the credibility of a single witness, or where the offence alleged is out of keeping with everything known about the accused, it can be a real consideration in his favour.

5. Section 49 — Previous Bad Character of an Accused

The general rule is exclusion, and the reason is the danger the whole group exists to guard against. Evidence that an accused has behaved badly before invites the tribunal to reason that he is the sort of person who offends and therefore probably offended this time. That reasoning is unreliable and prejudicial, and a conviction founded on it is a conviction for character rather than for conduct.

5.1 The exception — evidence in reply

The exclusion lasts only until the accused puts his own character in issue. Once he leads evidence of good character under Section 47, the prosecution may rebut it, and the rebuttal is not confined to contradicting the particular assertion. The whole subject is opened.

The rationale is fairness rather than probative value. An accused who invites the court to act on his reputation cannot object when the court is told what his reputation actually is. What makes the evidence admissible is not that it has suddenly become reliable but that the accused has himself made character an issue.

5.2 Explanation 1 — where bad character is a fact in issue

Section 49 does not apply where the bad character of a person is itself a fact in issue. The provision addresses character offered as circumstantial evidence of conduct; where character is the very thing to be proved, no question of exclusion arises.

The situations in which this occurs are limited but real. Proceedings for security for good behaviour under the criminal procedure legislation turn on the character of the person proceeded against. A defence of justification in defamation, where the imputation was one of bad character, makes that character a fact in issue. And certain offences are defined by reference to a person's habitual conduct, in which case the habit is an ingredient.

5.3 Explanation 2 — previous conviction

A previous conviction is relevant as evidence of bad character. This is the exception to the general-reputation rule noted earlier: a conviction is a particular act, and it may nevertheless be proved.

It is important to see how narrow this is. Explanation 2 does not make previous convictions generally admissible. It provides that where bad character has become relevant — that is, where the accused has led evidence of good character — a previous conviction may be proved as evidence of it. A conviction is not admissible merely because it exists.

6. Section 48 — Previous Sexual Experience of a Victim

The provision was introduced into the Indian Evidence Act as Section 53A by the Criminal Law (Amendment) Act, 2013, following the report of the Justice J.S. Verma Committee, and is carried forward as Section 48. It is a specific and absolute exclusion, and it operates alongside two other provisions to the same end.

The first is the proviso to Section 149, which bars cross-examination of a prosecutrix as to her general immoral character or previous sexual experience with any person for the purpose of proving consent or the quality of consent. Section 48 excludes the evidence; the proviso to Section 149 closes the route by which it would otherwise be extracted.

The second is the line of decisions on medical examination. The two-finger test and inferences drawn from it have been held to violate the dignity and privacy of a survivor, and a finding that a woman is habituated to sexual intercourse is of no consequence whatever, since her sexual history is wholly immaterial to whether she consented on the occasion in question.

The three provisions together produce a complete exclusion. The evidence is irrelevant under Section 48, it cannot be extracted under the proviso to Section 149, and the medical route to it has been closed. The reasoning behind all three is the same: what a complainant has done on other occasions and with other persons says nothing whatever about whether she consented on this occasion, and admitting it serves only to humiliate her and to distract the court.

7. Section 50 — Character Affecting Damages

Section 50 is an exception to Section 46 and must be read with it. Section 46 excludes character offered to show that conduct was probable; Section 50 admits character where it bears on quantum. The two are not in conflict because they address different stages of the case.

The classic application is defamation. Damages for injury to reputation depend on what the reputation was worth. A plaintiff whose reputation was already bad in the respect complained of has lost less than one of unblemished standing, and evidence of his general reputation is therefore relevant to the amount he should receive. It remains irrelevant to whether the words were published or whether they were defamatory.

The provision also operates in other claims where character bears on quantum — where aggravated damages are sought and the conduct of the parties is in issue, or where the plaintiff's own conduct affects what he ought to recover. In each case the character evidence enters at the assessment stage and not at the stage of liability, which is why Section 50 sits naturally alongside Section 10, the provision making relevant any fact enabling the court to determine the amount of damages.

8. The Asymmetry

The deliberate imbalance between Sections 47 and 49 is the most striking feature of the group, and it is worth setting out why it exists.

An accused may always prove good character. The prosecution may prove bad character only in reply. The two are not treated alike, and the reason is not that good character is more probative than bad — if anything the reverse is true, since a bad record is a better predictor of offending than a good one is of innocence.

The reason is the asymmetry of consequences. Evidence of good character, if wrongly acted upon, produces an acquittal of a guilty man. Evidence of bad character, if wrongly acted upon, produces the conviction of an innocent one. The law accepts the first risk and refuses the second, and the presumption of innocence is what makes that choice coherent.

It follows that the group is not a set of rules about the probative value of character at all. It is a set of rules about prejudice, and the question in every case is not whether character evidence tells the court something but whether it invites the tribunal to reason in a way the law forbids.

9. Character and the Credit of a Witness

One distinction must be kept in view, because these sections are frequently invoked where they have no application at all. Sections 46 to 50 deal with character as evidence bearing on conduct or damages. They say nothing about character as bearing on the credibility of a witness, which is governed by an entirely different group of provisions.

The credit of a witness may be impeached under Section 158 — by the evidence of persons who testify that he is unworthy of credit, by proof of bribery, or by proof of former statements inconsistent with his evidence. Cross-examination directed at credit is governed by Sections 149 to 153, which permit questions shaking credit even where the answers would incriminate the witness, subject to the court's control and to the proviso protecting a prosecutrix.

The practical point is that an accused who gives evidence in his own defence becomes a witness, and his credibility may be attacked under those provisions. That attack is not the same as proving bad character under Section 49, and the two should not be conflated — though in practice the line between attacking a man's credit and attacking his character is thinner than the statute suggests, and courts control the exercise accordingly.

10. The Position Stated Shortly

1. Character includes reputation and disposition, but evidence may be given only of general reputation and disposition, not of particular acts, except as Section 49 provides.
2. In civil cases character is irrelevant to whether conduct was probable, except so far as it appears from facts otherwise relevant.
3. An accused may always prove good character, unconditionally, under Section 47.
4. Bad character is irrelevant until the accused puts his character in issue, after which the whole subject is open.
5. Explanation 1 to Section 49 preserves the position where bad character is itself a fact in issue, as in proceedings for security for good behaviour or a plea of justification in defamation.
6. Explanation 2 makes a previous conviction relevant as evidence of bad character, but only where bad character has already become relevant. Three other routes exist and should not be confused with it.
7. Section 48 absolutely excludes the character and previous sexual experience of a victim on the question of consent, and works with the proviso to Section 149 and the prohibition on the two-finger test.
8. Section 50 admits character on quantum of damages, which is why it does not conflict with Section 46.
9. The asymmetry between good and bad character is deliberate, and rests on the different consequences of error in the two directions.

11. Related Topics and Provisions