Bharatiya Sakshya Adhiniyam, 2023
Section 151
Court to decide when question shall be asked and when witness compelled to
(1) If any such question relates to a matter not relevant to the suit or proceeding, except in so far as it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it, and may, if it thinks fit, warn the witness that he is not obliged to answer it.
(2) In exercising its discretion, the Court shall have regard to the following considerations, namely:—
(a) such questions are proper if they are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies;
(b) such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect in a slight degree, the opinion of the Court as to the credibility of the witness on the matter to which he testifies;
(c) such questions are improper if there is a great disproportion between the importance of the imputation made against the witness's character and the importance of his evidence;
(d) the Court may, if it sees fit, draw, from the witness’s refusal to answer, the inference that the answer if given would be unfavourable.
Why this exists
This provision comes from the old Indian Evidence Act, 1872 (Section 148), carried forward into the Bharatiya Sakshya Adhiniyam, 2023. Cross-examining lawyers can ask witnesses embarrassing personal questions to weaken their credibility, but such questions can also be used to harass, humiliate, or intimidate witnesses over irrelevant past conduct. The law balances the need to test a witness's honesty against protecting witnesses from unfair character attacks, by giving judges structured guidelines rather than leaving it entirely to lawyer discretion.
How courts read it
Indian courts, interpreting the identical predecessor provision (Section 148 of the Evidence Act, 1872), have generally held that judges must weigh the probative value of an alleged past misconduct against its prejudicial or humiliating effect. Courts have cautioned against allowing 'fishing' questions meant only to malign a witness's reputation without genuine bearing on their truthfulness in the specific case, especially regarding a woman's chastity or unrelated past conduct, drawing also on principles later reinforced by Section 146 (which restricts questions about a rape victim's character).
Common misconceptions
- Myth: A witness must answer every question asked by a lawyer during cross-examination.
Fact: The judge has discretion to block irrelevant character-attacking questions and can tell the witness they don't have to answer. - Myth: Refusing to answer a question always looks bad for the witness legally.
Fact: The law only says the judge 'may' draw an unfavorable inference from refusal; it's discretionary, not automatic, and depends on the context of the question.