Indecent, Scandalous and Insulting Questions under Sections 154 and 155 of the Bharatiya Sakshya Adhiniyam, 2023

Two consecutive sections restrain cross-examination, and the difference between them is a single word. The court may forbid an indecent or scandalous question; it shall forbid one intended to insult or annoy. The first is a discretion with an express exception preserving material questions; the second admits no exception at all, because no question is ever material as an insult. The distinction is small on the page and decisive in the courtroom.

1. The Two Provisions

Section 154 corresponds to Section 151 of the Indian Evidence Act and Section 155 to Section 152, both carried forward unchanged.

2. May and Shall — The Controlling Difference

The exception in Section 154 is the key to it. A question may be thoroughly indecent and still be one the court must allow, because the fact it goes to is in issue. In a prosecution for a sexual offence, in a matrimonial cause founded on adultery or cruelty, in a suit about legitimacy, questions about intimate matters are unavoidable — and the section expressly withholds the power to forbid them where they relate to the facts in issue.

What the section does reach is the indecent question that bears only obliquely on the case. The words are 'although such questions or inquiries may have some bearing on the questions before the Court' — so a question with some relevance may still be forbidden, provided it does not relate to the facts in issue themselves.

3. Section 155 — Two Distinct Limbs

Section 155 catches two different things, and they require different assessments.

3.1 Questions intended to insult or annoy

The test here is purpose. A question whose object is to humiliate the witness rather than to elicit anything is forbidden, and the court judges the intention from the question, its context, and the manner in which the examination has been conducted.

The word 'appears to it' leaves the assessment to the court, and an examiner who protests that he intended no insult is not the judge of the matter.

3.2 Questions proper in themselves but needlessly offensive in form

The second limb is the more useful and the more often overlooked. It catches a question that is perfectly proper in substance but has been put in a way that is needlessly offensive.

Here the answer is not to disallow the enquiry but to require it to be rephrased. The examiner is entitled to the information; he is not entitled to obtain it in a manner calculated to degrade the witness. A court applying this limb ordinarily says so — the question is disallowed in that form, and may be put again properly.

4. The Court's Duty

Both sections are addressed to the court, and this distinguishes them from Section 152, which is addressed to the advocate.

Three consequences follow.

No objection is required. The court may act of its own motion, and Section 155 requires it to. A court that allows a witness to be insulted because nobody objected has not discharged the duty the section imposes.

The duty extends to the judge's own questions. The second proviso to Section 168 provides that the judge shall not ask any question which it would be improper for any other person to ask under Section 152 or Section 153 — and the restraint applies equally in substance to the conduct the present sections address. A court exercising its very wide power to question is not thereby licensed to be offensive.

The duty is most acute with vulnerable witnesses. A child, a person with a disability, an aged witness and the victim of a sexual offence are all the more exposed to the conduct these sections forbid, and the court's control is correspondingly more important.

5. The Victim of a Sexual Offence

The field in which these sections matter most, and in which the Adhiniyam supplies additional and stronger protection.

The scheme works at four levels and they should be distinguished when an objection is taken. Section 48 makes the material irrelevant; the proviso to Section 149 makes the question impermissible; Sections 154 and 155 give the court control over the manner of questioning generally; and the omission from Section 158 removes the route by which credit could be attacked on the same footing.

Lillu alias Rajesh v. State of Haryana, (2013) 14 SCC 643 completes the protection on the medical side, holding the two-finger test impermissible as violative of the survivor's right to privacy and dignity, and holding that a finding that she is habituated to sexual intercourse is of no consequence.

6. Where the Sections Fit

Six provisions control cross-examination, and it is worth seeing the whole set in order because an objection is usually available under more than one.

A single objectionable question will frequently engage several of them at once. An imputation put without material, on a remote matter, in an offensive form, is objectionable under Section 151 (the witness need not answer), Section 152 (no reasonable grounds), and Section 155 (offensive form) — and a well-framed objection says so.

7. Taking and Meeting the Objection

7.1 Objecting

1. Object before the answer. The purpose is to prevent the question reaching the witness.
2. Identify the section. Under Section 155 the court is bound to forbid, which is a stronger submission than a request to exercise a discretion.
3. Where the complaint is the form rather than the substance, say so, and ask that the question be rephrased rather than disallowed.
4. Where the question is indecent, address the exception. The court cannot forbid it if it relates to a fact in issue, so the objection must show that it does not.
5. Add Sections 151 and 152 where they apply, since a single question is often objectionable on several grounds.

7.2 Meeting the objection

1. Under Section 154, bring the question within the exception — show that it relates to a fact in issue or to a matter necessary to determine whether a fact in issue existed.
2. Under Section 155, rephrase. Materiality is no answer to an objection to form, and an examiner who insists on the form rather than the substance invites an adverse view.
3. Be ready to state your grounds if Section 152 is raised alongside.
4. Never put character or previous sexual experience to a victim on the issue of consent; the proviso to Section 149 forbids the question outright and Section 48 makes the material irrelevant.

8. The Position Stated Shortly

1. Section 154 gives a discretion to forbid indecent or scandalous questions; Section 155 makes it mandatory to forbid insulting ones.
2. Section 154 carries an exception — the power does not extend to questions relating to facts in issue, or to matters necessary to determine whether they existed.
3. Section 155 carries no exception, because no question is ever material as an insult.
4. Section 155 has two limbs — questions intended to insult or annoy, and questions proper in substance but needlessly offensive in form.
5. The answer to the second limb is rephrasing, not disallowance of the enquiry.
6. Both sections are addressed to the Court, which may act without any objection, and must under Section 155.
7. Because of the consolidation at Section 146, these are Sections 154 and 155, not 151 and 152 as under the earlier Act.
8. For the victim of a sexual offence, four provisions operate together — Section 48, the proviso to Section 149, Sections 154 and 155, and the omission from Section 158.

9. Related Topics and Provisions