Examining The Curious Case Of Section 64, Code Of Criminal Procedure, 1973 (Part-II)

A glimpse of the practical nuances of Section 64

 In this section, we shall try to map the practical consequences that Section 64 in its present form entails. The section essentially fails to account for the following situations: 

1. When the person summoned resides with only female family members and/or a transgender person.

2. When the only family member present at any given time of the tender of summons is a female, the possibility of such a situation is particularly high in light of the stark gender gap in the workforce between the males and the females, i.e., only 22% of Indian women are at work, which entails the majority of the remaining women being at home. This gets bolstered by the traditional mindset prevailing in Indian society, which dictates and ascribes distinct gender roles to males and females, viz., that females are supposed to be the homemakers and take care of the homely affairs while males go out and work. 

3. When the only person during any given time of tender of summons is a transgender person.

The section would essentially be of no avail in all the aforementioned situations since it restricts the service of summons to only ‘male’ family members. The sequitur in such situations would hence be that the course of action as laid down in Section 65 would have to be followed. The section inter alia states that when the service of summons cannot be effected as per the procedure laid down under Section 64, the serving officer shall affix a duplicate copy of the summons in some conspicuous part of the house of the person summoned. This service is subject to further inquiry by the Court, which might order for a fresh delivery of summons in case the service done is found insufficient. In the wake of this, it may be pertinent to note that firstly, the same is much-less efficacious a mode of service of summons than section 64, which could have been easily resorted to but for the specification of ‘male’ to be the gender of the recipient of the summons, and secondly, it can also potentially cause a delay in the proceedings especially in case a fresh service of summons is ordered. The latter scenario might also trigger a domino effect in directly jeopardising the accused person’s right to a speedy trial guaranteed to him under Article 21 of the Constitution apart from delaying the proceedings, which are going to cause hardships to all other relevant stakeholders as well. In any event, this delay in the proceedings is only going to exacerbate the overall scheme of things in the already dilatory Indian judicial system which is terribly clogged with huge pendency of cases.

Analysing the Judicial Understanding of Section 64

Some of the aforesaid observations with respect to the section’s exclusionary effect towards female family members also came to be noted in the case of G. Kavitha v. Union of India, where a judicial review of Section 64 was sought before the Madras High Court. The court, however, despite acceding to the said observations, read the word ‘male’ as not putting any bar on the female family members from receiving the summons, and thereby did not declare the impugned portion of the section as unconstitutional.

We humbly disagree with the Court’s decision in this respect. We submit that given the current scenario, it would be counterintuitive to adopt an interpretation including ‘female’ into ‘male’ or to say that the section doesn’t place a specific bar upon the females from receiving the summons, owing to the fact that the specific insertion of the word ‘male’ rather tends to point towards a conscious omission of any other sex or gender from the purview of the section, for reasons, arguably stemming from the patriarchal notions, though not clearly known. Furthermore, the court’s interpretation, apart from being erroneous, also appears to be grounded on patriarchal values and orthodoxy. To borrow from Sanjay Kumar v. State of Bihar & Anr. and Vikram Kumar v. State of Bihar, the Patna High Court has also interpreted Section 64 as excluding the female members for the purpose of service of the summons. Hence, the Court in the G. Kavitha case, by leaving it to the stakeholders to decide as to the section after trivialising the concerned issue as being ‘minor and unsubstantial’, seems to have effectively disregarded the fact that the same is a grave infringement of fundamental rights of entire classes of citizens. Furthermore, the interpretation adopted in the G. Kavitha case ought to lose tenability in the present time as it would still exclude the family members who are transgender persons.

An International Perspective

After having discussed the constitutional perspective and practical implications entailed by section 64, it would be relevant to delve into the laws of foreign jurisdictions to analyse their standpoint with respect to the competency of family members of sexes or genders other than males to receive the summons.

The relevant provision of the criminal procedural law of Nepal, viz., Section 61(3) of the National Criminal Procedure (Code) Act, 2017 inter alia provides that the summons can be served to any joint family member above the age of eighteen years when the person summoned cannot be found. Thus, it is clear that, as per the said law, the gender of the recipient of summons is not regarded as any relevant criteria. Similarly, Section 38.1 of The Civil and Criminal Procedure Code of Bhutan, 2001, also provides that where the person summoned cannot be found by due diligence, the summons can be served by leaving a copy with some adult member of that person’s family. Even the Iraqian criminal law, the Criminal Procedure Code of 1971, which is older than its Indian counterpart, does not distinguish between the gender of the recipient of a summons as far as the service of it in the absence of the person summoned is concerned.

In a similar manner, the relevant laws of some commonwealth nations, such as SingaporeSouth Africa, and New Zealand, also do not distinguish between genders in providing for the course of action to be followed in case of the absence of the person summoned at the time of tender of summons.

Largely similar appears to be the legal landscape of developed countries such as, the United Kingdom, wherein Rule 4.3(1)(a) of the Criminal Procedure Rules, 2015, postulates that summons may be served on any individual or corporation. The legislators in India should have taken a leaf from the United Kingdom’s book as the origin of our legal system traces back to the United Kingdom. It is very strange to know that our lawmakers prefer to remain ignorant of the law in the United Kingdom on this aspect. Further, the Canadian law on this point proves to be gender-neutral as,  Section 509 (2) of the Criminal Code (R.S.C., 1985, c. C-46) allows a person of at least sixteen years of age with whom the serving officer can leave a summons. The Russian law on this point too is a progressive law as Article 188 (2) of the Criminal Procedural Code of the Russian Federation No. 174-FZ of December 18, 2001 allows summons for the purpose of interrogation, to be served to any adult family member, thereby providing no differential treatment between the family members of different sexes. The Indian criminal-justice system has perilously failed on this count as it has allowed the continuation of this anomaly till date.

Thus, even that from an international comparative perspective, the competency of family members of sexes other than males to receive summons, as contemplated under the Cr.P.C., appears to be quite retrograde. This is apart from it being flawed from a constitutional prism. It is unfortunate that we adopted the approach of the 1898 Cr.P.C. on this matter at the time of enactment of the new Cr.P.C. in 1973, despite the existent Constitution and the relatively-progressed narratives of gender equality. Even more perturbing is the fact that the subsequent Criminal Law Amendments and the Law Commission Reports have also failed to draw relevant attention from the stakeholders. As to why this provision has constantly hoodwinked the legislators, would be a difficult question to answer.

Concluding Remarks

From the aforesaid analysis, it is evident that the section is fraught with problems. It has an exclusionary connotation to it, which is antithetical to the Constitution and inconsistent with the narratives of gender equality. Not only that, the retention of the word ‘male’ relegating persons of other sexes to an inferior status, for decades, alludes to a sad state of affairs, and rather also becomes a matter of deliberation for all of us as to our real progress as a society when we have still not been ready to forgo what has roots lying deep in patriarchy. Even more appalling and worrisome in this regard has been the callous attitude of relevant stakeholders who have not given adequate attention to this issue for so long.

Furthermore, as seen above, the section has troubling practical implications as well which have a cascading effect in directly imperilling accused persons’ rights, thereby affecting all stakeholders and the entire justice delivery system at large. Additionally, a glance at the laws of various countries reinforces that it is very superfluous to retain the word ‘male’ in the section, especially when it has no justifiable purpose attached to it. However, realising that the section is deeply grounded on the patriarchal values and orthodoxy which dictated that the adult males had the exclusive right to represent other members of their family to the exclusion of family members of other sexes, it is suggested that an amendment be made in the section deleting the word ‘male’ from it, to address the issues raised in the article.

To view Part I of this article, Click here

This article is authored by Vinayak Sharma and Yavnika Jain, law students at Delhi Metropolitan Education, Guru Gobind Singh Indraprastha University, Delhi. 

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