The evidence of 'character' in the court of 'law'

"The business of the court is to try the case and not the man, and a very bad man may have a very righteous cause." ~ Wigmore

In common parlance "character" is a subjective and a socially dynamic term. It refers to traits which may be phycological or moral. What may constitute for a good character to me may not constitute for my friend, or what is inclusive of good character in the western countries may not suit the social cultures of India.

So, if character is such a dynamic term, how do we include it in our law? Does character of a person really matter while deciding upon their liability. Unlike the term "character" law cannot be subjective and it should operate on set parameters. So, what are the parameters to bring up character as 'evidence' in the Court of Law. These are some of the issues that this article attempts to address.

The article analyses the evidentiary value of character in civil as well as criminal cases by studying the precedents set by Indian Courts in various cases. Further, the article delves into rape trials and how with the evolving society, character of the prosecutrix cannot add any substantive evidentiary value to the case.

The article also attempts to interpret the bare judicial texts and analyse whether it aligns with the stance of courts in several related cases. In the course, it also aims to point out the fallacies in the law and how it fails to keep up with the changing dynamics of the society.

Character in the Legal Arena
According to Cambridge dictionary character is the combination of qualities in a person or place that makes them different from others. Though our Indian Legal System does not specifically define the term 'character' but it is indicative of the reputation or general estimate of character. A person's character in some way stimulates or prompts his behaviour when he commits a crime or files a lawsuit.

However, this presumption that a person's character will always take precedence is somewhat in opposition to how justice is delivered both in India and elsewhere. In India, criminal cases must be proven beyond a reasonable doubt, whereas civil cases must meet the standard of the balance of probabilities.

If a person's character were given priority in such a system, then any individual with a terrible character would be treated as a criminal first, which would undermine our entire justice delivery system. Therefore, it is crucial to examine how and to what degree our legal system, as embodied in the Indian Evidence Act of 1872[i], has valued evidence pertaining to a person's character.

The Indian Evidence Act discusses when a person's character becomes significant and may be included as evidence in a proceeding under sections 52 to 55. The term "character" according to Section 55 of the Indian Evidence Act[ii] include both repute and disposition of a person. It is generally accepted that a person's reputation is the impression that they leave on other people, whereas their disposition is who they are and what their fundamental traits are.

Evidentiary Value of Character in Civil and Criminal Cases

First, it is important to note that the Indian Evidence Act distinguishes between two categories of characters: those with good character and those with bad character. According to Section 52 of the Evidence Act [iii], character evidence is irrelevant in civil cases.

There are two exceptions to this rule: first, evidence of character is significant where the character of the party is a fact in issue, and second, the character of the person who should be compensated for the amount of damage is relevant (Section 55). For instance, if a divorce is requested due to the cruelty of the husband, evidence pertaining to the husband's character will be pertinent because the cruelty of the husband is a fact that is in question.

The Court explained the application of sections 52 and 54 of the Indian Evidence Act in the case of Bharpur Singh v Parshotam Das [iv]. This lawsuit was brought to defend against a recovery action based on a promissory note. The Court noted that this part pertains to a scenario where character evidence is pertinent in a civil matter when determining the applicability of Section 52. In civil trials, character evidence is typically immaterial and cannot establish the likelihood or improbability of any activity. Evidence of character is pertinent only if the character of a fact is at issue.

According to Section 54[v], prior bad character can only be significant as a counterargument to evidence of good character or when the character is a questionable fact. In contrast, the accused's prior good reputation is important in criminal cases (section 53), but their prior bad character is not (section 54). Although bad character isn't specifically defined under Indian law, it essentially means whatever the society interprets it to entail.

According to Section 54's Explanation 2, any prior conviction-related evidence is relevant in criminal prosecutions as proof of poor character. According to Section 71 of the Indian Penal Code, anyone who has previously been convicted should receive a sentence that is lengthier than what is typically given.

Case Laws:
Evidence showing the accused's bad character is significant in two situations: first, to contradict the prosecution's evidence of the accused's good character; and second, where the character of the party is an independent fact in dispute. In the case of B. Vasanthi v. Bakthavatchalu [vi], the court took into account evidence on the characters of both the plaintiff and the defendant to determine the custody of the children in their best interests as they were the fact in issue.

The Supreme Court ruled in Habeeb Mohammad v. State of Hyderabad[vii] that an accused person's character might influence whether or not they are guilty or innocent during a criminal trial. It can either serve to clear him of any suspicions or to increase his mistrust. When it comes to punishment, the accused is permitted to demonstrate their overall good character.

In the Empire Conspiracy Case [viii], the Court provided an answer to the query regarding the significance of an accused person's character in a criminal proceeding. It was noted that Section 53 makes reference to the good character of the accused being important in criminal trials.

The overall repute and general disposition in criminal proceedings are relevant, according to Section 55 of the Act. The Court further clarified the distinction between disposition and repute. It was noted that disposition refers to a person's "innate traits," whereas reputation refers to a person's "general behavior with the public." Despite having a poor disposition, a man may have a good reputation. The ability to conceal one's true characteristics and the opportunity for the witness to watch the accused both affect the value of the evidence.

The court cited Wigmore's thesis, which held that while evidence can be used to sway the jury in favor of the accused in a questionable case, it cannot overcome evidence that establishes the accused's guilt. Although weak evidence, proof of good character can be utilized in criminal prosecutions.

Rape trials and the insignificance of character evidence

It has frequently been claimed by activists, policy makers, and judges alike that trials in rape cases victimise the survivor of rape by putting her through a series of traumatic experiences, including the medico-legal examination, the police harassment, disturbing cross-examinations, and in some instances, the questioning of her character by attorneys, judges, and the general public. Amendments to criminal law statutes and the Indian Evidence Act have been enacted over several decades to lessen the trauma of rape proceedings for the survivor, starting in 1983 after the very tragic Mathura gang-rape case[ix].

The legislature's most recent effort in this direction, driven by the Delhi gang-rape case[x], is the Amendment Act of 2013[xi]. In camera trials are a requirement under these "rape shield legislations," and the evidentiary rules have also been changed to render evidence relating to the victim's character or sexual past irrelevant.

According to the Evidence Act, evidence can be presented in any process about the existence or absence of each fact in issue as well as any other fact that has been determined to be relevant by the law. Since the issue of consent is a crucial element in the trial proceedings, the character evidence of the prosecutrix was frequently used in rape prosecutions. The Prosecutrix's character was utilised for two different objectives.

First, when consent was in question, the Prosecutrix's past sexual history was used to imply that since she usually consents to sex with other men as well, she must have consented to sex with the accused. In essence, this application implies that women who have had repeated sexual encounters are more likely to give their consent.

Such a claim was made in accordance with S.155(4) of the Evidence Act, which stated that in cases when a man is accused of rape or an attempted rape, it may be demonstrated that the Prosecutrix has a history of morally dubious behaviour. Second, during cross-examination, character evidence was also presented to argue that a woman who has been accustomed to sexual activity has an immoral character and will therefore lack moral restraints against lying.

Not to forget, the rape victim is both the prosecutor and a witness in her own case. Any question that tries to damage the witness' reputation by undermining his credibility may be asked under Sec 146(3) of the Evidence Act, which governs the questions that may be asked from a witness during cross examination. The Prosecutrix's entire testimony could be called into question by this second instance of character evidence. The accused often made significant use of these clauses to imply that the act was consensual and to show that the prosecutrix was an immoral, unchaste woman, making her version of events invalid.

Until 1980, when the Law Commission of India in its 84th Report advocated amendments to render evidence regarding the character and prior sexual history of the Prosecutrix irrelevant in rape prosecutions, the use of these laws to shed light on the victim's past sexual history prolonged unchecked. The Commission though came out very strongly that "even when a harlot or a prostitute is raped, her agreement at the time of commission of the crime must be established by actual evidence," noting that there was "absolutely no basis to preserve the provisions with respect to past sexual relations with other persons."

As a result, the court must separately decide whether the accused committed rape on the victim on the occasion that was allegedly complained of, regardless if the prosecutrix is an easy virtue or an unchaste lady in the eyes of society. The panel further stated that in situations when permission is not in question, testimony regarding character or past sexual behaviour cannot be used.

Although the legislature did not act right away on these recommendations, the courts gradually started to accept these principles. State of Haryana v. Prem Chand[xii] one of these cases from 1990, stated explicitly that "the character or reputation of the victim had no relevance or influence either on the question of adjudging the guilt of the accused or sentence given under Sec 376 of the Indian Penal Code[xiii]."

Even as late as 2003, when S.155(4)�the clause enabling the use of character evidence to indicate consent�was deleted, the legislature took action on these proposals. The court agreed with this premise and eloquently articulated its justification in State of U.P. v. Pappu Yunus [xiv]. The judge ruled that "Even if it were assumed that the victim had previously lost her virginity, this did not and cannot, in legal terms, grant anyone the right to rape her.

Even if the victim in a particular case engaged in promiscuous sexual behaviour in the past, she has the freedom to refuse to engage in sexual activity with anybody or anyone since she is not a susceptible target for sexual assault." The court then refused to hear arguments on behalf of the accused based on the claim that the rape victim was an unchaste woman and a woman of easy virtue on the grounds that the prosecutrix's character was not a relevant factor to be taken into account in any case unless the prosecutrix's character was in question.

The insertion of a proviso to the Sec 146 Evidence Act, which states that "the general character of the Prosecutrix as a witness, cannot be questioned during cross-examination," also clearly forbade this line of questioning. This caveat was justified by the idea that a woman's testimony shouldn't be disregarded just because she possesses easy virtue; rather, it should be cautiously valued.

Despite these legal changes, character evidence was nevertheless frequently used, in part due to poor drafting since the stated prohibition on using character evidence only applied to situations when the Prosecutrix's character as a witness under cross-examination was in doubt. In other words, notwithstanding the deletion of S.155's sub-section (4), it was not expressly forbidden to use character evidence to demonstrate consent.

As a result, the accused continued to present character evidence in a number of cases to demonstrate that the victim had a sexually immoral character and would have no reluctance in consenting to such a conduct.

Following the Nirbhaya Rape Case in 2013[xv], a shield was proposed to be added to the Evidence Act that would completely prohibit character testimony. Due to the insertion of Section 53A[xvi], character evidence is no longer relevant when discussing consent or the level of consent. A change was made to Section 146[xvii] however, at the same time, stating that "issues as to the general immoral character of the victim cannot be placed into question...when consent is in issue."

Conclusion
The main issue with this modification is that, while the previous proviso outright prohibited such queries, the protection provided by the new proviso is overly limited and only covers cross-examination regarding permission. As previously stated, the current state of evidence law leaves opens the prospect of prosecutrix's entire testimony being called into question if it turns out that she has an "immoral character" and is a habitual liar.

After the narrow but a thorough study on the relevancy of character as evidence in criminal as well as civil cases along with the exceptions, it can be safely concluded that character acts as weak piece of evidence before the court of law even in the cases where it is admissible, owing to its subjective nature.

When it comes to criminal cases, though character is admissible as evidence in certain cases, it is high time for a country like India which believes in the rehabilitative theory, that, the courts must ensure that one's past or one's general reputation must not become a deciding factor for snatching away their fundamental rights and tagging them as criminals.

In light of the above discussion regarding evidentiary value of character in rape trials, it may be said that the prosecutrix of a rape trial's character testimony is largely immaterial insofar as the issue of her consent to the act is concerned. Furthermore, when the prosecutrix testifies as a witness, no inquiries into her moral character or past sexual experiences are permitted during cross-examination; however, the language of Sec 146 as it is currently written leaves open the possibility of using such information to refute the witness' testimony.

Like media trial is condemned, the practice of judging a person lifelong from their past should also be condemned. As the character rule is only founded on a distrust of juries and the argument that different crimes shouldn't be separated based on how simple or challenging, they are to prosecute, it can never be justified.

End-Notes:

1. The Indian Evidence Act of 1872, 'the act'.
2. Section 55 of the Act.
3. Section 52 of the Act.
4. 2015 SCC OnLine P&H 18270.
5. Section 54 of the Act.
6. 1993 AIR Mad 322.
7. 1954 AIR 51.
8. 1957 AIR 747.
9. 1979 AIR 185.
10. 2017 6 SCC 1.
11. The Criminal Law (Amendment) Act, 2013.
12. 1990 AIR 538.
13. Section 376 of The Indian Penal Code.
14. 2004 Supp (6) SCR 585.
15. 2017 6 SCC 1.
16. Section 53A of the Act.
17. Section 149 of the Act.