Presumption of Absence of Consent in the Cases of Rape

This article critically examines the legal principle of presumption of absence of consent in rape prosecutions under Indian criminal law, with a focus on Section 118 of the Bharatiya Sakshya Adhiniyam, 2023 (corresponding to Section 114A of the Indian Evidence Act, 1872). The study traces the evolution of this doctrine from the pre‑1983 position—where the prosecution was required to prove absence of consent beyond reasonable doubt‑corroborated by independent evidence, as illustrated by the Mathura rape case—to the Criminal Law (Amendment) Act, 1983, which introduced a mandatory yet rebuttable presumption against the accused once sexual intercourse is established and the victim deposes that no consent was given. Drawing on leading High Court and Supreme Court decisions such as State of Rajasthan v. Roshan Khan, Basudev Seal v. State of West Bengal, Sandip Pandurang Kadam v. State of Maharashtra, and Govt of NCT Delhi v. Sant Ram, the article highlights the persistent judicial tendency to treat the victim’s un‑corroborated testimony with suspicion, thereby diluting the mandatory character of the statutory presumption. The article argues that while shifting the evidentiary burden onto the accused in rape cases is necessary to address gender‑based violence and encourage reporting, courts must harmonize this deviation from the traditional presumption of innocence with safeguards against misuse and false accusations. It concludes by recommending targeted amendments and interpretive guidelines to ensure that Section 118 of the Bharatiya Sakshya Adhiniyam genuinely balances victim protection with the fundamental rights of the accused, without undermining the core tenets of criminal justice.