It is a matter of common knowledge that the dispensation of justice cannot be done without the presence of the accused, victim, and all those persons who knowingly or unknowingly witnessed the circumstances leading to the crime. Until the British codified the law in our country, these people were brought to the King’s court by his sepoys. This process of calling accused persons, victims and witnesses to the court of law is an indispensable part of the justice delivery mechanism. To ensure fair process and smooth conduct of the justice delivery system at all stages, provisions pertaining to the criminal justice administration have been codified. After the codification of law, there is a change in the legal paradigm, i.e., a proper procedure has been laid down which has to be followed when any individual is sought to be produced before the court. These people are now called by a written, signed document issued by the court, which is known as a summons.
Sections 61 to 69 of the Code of Criminal Procedure (‘Cr.P.C.’), 1973, provide for summons. Essentially, a summon is a written notice issued by the court to a police officer or any officer of the Court issuing it or other public servants, to be served to the accused person or any other person to be summoned.
Section 62 of the Cr.P.C. mandates a police officer to personally serve the summons to the person summoned when the circumstances permit it. However, it is not necessary that the person summoned be present at the time of the service of the summons. To account for such situations, Section 64 recognizes leaving a duplicate copy of the summons with some adult male member of the said person’s family as a valid and sufficient service of summons. Furthermore, the explanation appended to the section excludes a servant from the definition of a family member.
Expounding upon the application of this section, in Hemendra Nath Chowdhury v. Archana Chowdhury, the Calcutta High Court inter alia observed that proper efforts must first be made by the serving officer to find the person summoned before taking the route of this section.
In this article, we attempt to argue the unconstitutionality of the said section to the extent that it restricts the service of summons only to the adult ‘male’ members of the family of the person summoned. We argue that this classification created by the section runs afoul of the provisions of Part III of the Constitution. Furthermore, we explore the practical challenges that Section 64 entails. To this end, we begin from apprising the historical perspective by tracing the origin of the section, and also look at and analyse the relevant laws of different countries so as to provide a comparative perspective to the discussion at hand.
The historical origins of Section 64 can be found in Section 70 of the former Criminal Procedure Code, the 1898 Cr.P.C, which provided for service of summons to an adult ‘male’ family member of the person summoned in case of their absence. While the exact intention behind the enactment of the said provision remains difficult to ascertain, it is highly likely that the same lies in the social circumstances prevailing back then. It has also come to be noted by the Madras High Court in G. Kavitha v. Union of India. Further, at the time of enactment of the current Cr.P.C, the only change that ensued was the addition of the requirement of common residence of the concerned family member with the person summoned along with an explanation explicitly removing a servant from the definition of a family member, the latter, upon the recommendation of the 37th Law Commission Report, 1967. The constitutional conundrum of the exclusion being caused by the section to family members of other sexes or genders and other such concerns were however left unaddressed.
It is in this sense that the relevant report seems to have been incomprehensive in its analysis for not realising the said issue to be worthy enough of attention by the stakeholders and for failing to realise that the same was(is) inconsistent with the constitutional mandates of equality. Sadly, even the subsequent law commission reports and the Criminal Law Amendments that have taken place, have also failed to recognize the same, leaving the section unchanged even after many decades, which makes a discussion on the section’s unconstitutionality all the more pertinent.
Examining the constitutionality of Section 64
This part of the article shall try to analyse Section 64 from the lens of the fundamental rights enshrined under Part III of the Constitution.
(I) With respect to female family members
The fundamental rights, particularly, Articles 14 and 15 of the Constitution, inter alia mandate general equality before the law and prohibit any kind of discrimination on the ground of sex, among other bases, respectively. The underlying principle behind these equality provisions has largely been understood as implying equal treatment under similar circumstances in terms of both the powers conferred and liabilities imposed by the Constitutional Courts of the country. This being said, the State cannot be deemed to be divested from the power to classify the persons for legitimate purposes. It has been laid down in a catena of judgments that the State has the power to classify the persons, provided the basis for the same is valid and not arbitrary. Thus, in any case of enactment of a distinctive law, for instance, the state would be required to prove that the classification made is reasonable and has a reasonable nexus with the underlying object of the law, which itself should not be illegal. In the present context, it is argued that the restriction of service of summons to the ‘male’ members of the family, excluding a female family member, is a form of discrimination meted out to the female members since they are not considered to be equal and competent recipients of the summons, unlike their male counterparts, while both of them may be of similarly circumstance.
Here, it would be relevant to point out that the larger purpose behind the enactment of the section is to facilitate the criminal justice system in not causing any unreasonable delay in the criminal proceedings, which might otherwise be caused if a personal service to the person summoned is mandated in all circumstances whatsoever. Furthermore, the section is premised on the fact that the notice of the service of summons might be conveyed later on to the person summoned. Thus, given the purpose, the explicit insertion of the word ‘male’ in the section, thereby excluding the female family members, doesn’t have any reasonable nexus with the object of the section; therefore, the same is blatantly violative of Articles 14 and 15. It may be relevant here to note that the judicial history of India records the courts invalidating provisions pertaining to various landlord-tenant related matters, tax legislations, personal law matters, contractual matters, and many more, that sought to create unreasonable classifications between various classes of persons in the application of the concerned laws, on such bases.
Furthermore, limiting the service of summons to only ‘male’ family members is an affront to the female family members who might be there during the time of tender of the summons, as it effectively treats them as incompetent for the relevant purpose of receiving the summons on behalf of the person summoned, which offends their right to live with dignity, implicit under Article 21. In Munn v. Illinois, also quoted in many Indian cases, the Court inter alia defined life as meaning more than mere animal existence. The court has further held that the inhibition against deprivation of ‘life’ extends to all those faculties by which life is enjoyed, which would necessarily include an inhibition against any kind of deprivation of the ‘right to dignity’ as well. The said right is being inhibited in the present scenario by disabling the female family members from receiving the summons.
The constitutionality of the said section has also come to be challenged in the Jharkhand High Court on grounds of excluding female members from the purview of the section, in the petition titled Rajiv Pandey and Ravikant Sharma v. Union of India and State of Jharkhand. However, it may be relevant to note here that even if the Court declares the relevant portion of the section as unconstitutional, the effect of its judgment would be limited to the State of Jharkhand only on account of the Court’s limited territorial jurisdiction. The section in its present form would however continue to be in force in all the other states, regardless of the judgment. Although it should not be retained in its current form in any part of the territory of India on ground of its unconstitutionality, as has been argued above.
(II) With respect to third gender family member
It is noteworthy that the explicit insertion of the word ‘male’ is exclusionary to the third gender family members as well, who might be there during the time of service of the summons, and bars them from receiving the summons on behalf of the person summoned. This is a form of unreasonable discrimination that is being meted out, irrelevant to the object behind the section, and is violative of Articles 14 and 15 of the Constitution. Furthermore, much like their female counterparts, this unnecessary restraint on receiving of the summons goes on to violate their right to be treated in a dignified manner as well, implicit under Article 21, in light of the grounds mentioned above. This contention becomes all the more relevant to be specifically taken care of, in light of the recent shift in our constitutional jurisprudence towards affirming their rights. The landmark judgment of NALSA v. Union of India recognised the third gender and inter alia their fundamental rights under the Constitution, thereby making them exercisable and enforceable, just like they are for their male and female counterparts.
This article is authored by Vinayak Sharma and Yavnika Jain, law students at Delhi Metropolitan Education, Guru Gobind Singh Indraprastha University, Delhi.
Part II of this article can be accessed here