When Protection Becomes Prejudice: A Constitutional Critique of Victim-Centric Sexual Offence Reform in India

This article examines India’s new victim-focused reforms under the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BSA). While the author acknowledge the intention to recognize victims’ dignity and remedy past injustices, the author contend that these reforms in the aggregate create a procedural imbalance in favor of victims against the accused—particularly because of Section 69 BNS, the limited defence procedures in the encoded BNSS, and the limiting definitions of evidentiary use in BSA. The author discuss how doctrines such as the concept of a “sterling witness” and selective use of forensic evidence reinforce this imbalance. To remedy this imbalance, the author propose a “Constitutional Counterweight” doctrine, borrowing from UK and Canadian jurisprudence, that allows judges as stewards of balance under the procedural reconstruction so that the rights of the accused under Articles 14 and 21 of the Constitution are never diluted in the pursuit of justice for the victim.