With the advent of time, the position of women in society has gone through a drastic change. Although the journey involved a lot of sacrifices and struggles. From being inaudible in their own houses to choosing their career paths, from just being a liability who was supposed to be gotten ridden off by being married to running the whole house independently. From being suppressed gender of society to raise her voice for her rights we have witnessed an ocean of changes in the status of women in society, and the amendment to the laws and precedents convey the same. Besides all this chain of changes, one cannot deny the battles female fights every day served by the patriarchal mindset and the cultural warriors who hold the history of dominating her will under the shadow of preserving the culture and honour. Time and again she has proved her capabilities but ironically, she could never experience the trust and freedom she longs for, she is still considered incapable of taking the right decisions without male approval.
One such controversial provision in the Criminal Procedure Code, 1973 gained attention in November 2022 when Kush Kalra filed a PIL in the Supreme Court in reference to Section 64 of the Criminal Procedure Code 1973 (Cr.P.C.), the same deals with “service when person summoned cannot be found.” The court agreed to examine the legal question, and CJI Chandrachud proceeded by taking the assistance of the attorney general and a few other advocates on the same. The section says “Where the person summoned cannot, by the exercise of due diligence, be found, the summons may be served by leaving one of the duplicated for him with some adult male member of his family residing with him, and the person with whom the summons is so left shall if so, required by the serving officer, sign a receipt therefore on the back of the other duplicate.”
In her plea Kush Kalra stated that the section is violative of constitutional provisions which ensure equality through Articles 14 and 15, dignity under Article 21, and right to know under Article 19(1)(a). Here the equality within its ambit includes both the power conferred and the liability imposed.
This is not the first time that this provision came to notice, In Madras High Court a petition was filed titled G. Kavitha v. Union of India, challenging the discrimination against women under Section 64 of Cr.P.C wherein Ministry of Law and Justice, Union of India was impleaded as Respondent. Therein, the Ministry of Law and Justice, Union of India, supported the nonservice of summons on females to protect their privacy. The Ministry also justified non-service of summons on females keeping in mind pardanashin.
LOOPHOLES IN PROVISIONS
- Delay in justice
The load on the court is well known in such cases causing further delay in the trial in the light of the discriminatory language of the provision jeopardizes one’s right to a speedy trial, as in the absence of an adult male member in the house the summoning would not be provided this would further result in an unwanted delay and the justice hereafter delivered. Further considering the position of women who were kept at a bay under such criminal provisions while the same was enacted has changed a lot those were the times when she was neither educated nor capable enough to bear the court proceedings specifically the criminal ones as the Civil Procedure Code, 1908 there are no such discriminatory provisions when issuing of summons comes into the picture, the sociological structure was built such it was against the honour of a woman. Therefore, provisions must be updated with the change in times.
- Only Female member is present in the house
With time more women are stepping out of the house and playing active roles in supporting their families still, in a country like India having such a diverse culture most women are still limited to housing either on their choice or handcuffed under the shadow of cultural and sociological expectations, this is a vital reason of her availability or presence in the house in such situations when a summon is issued against the male member of the family and the same is not delivered just because of the absence of an adult male seems to be absurd and unjust and somewhere pricks the dignity of the women who will not be considered capable besides all the empowerments agendas society and governments play with her.
- The person summoned resides only with the female family members
If the person against whom summon is issued is the only male member in the family and the rest are females in the family for instance if a man resides with his wife and widowed mother in such case as the provision provides summon cannot be provided to his wife and mother in his absence. The man is the sole earner of the family and leaves home every day for work in such case summon would be unnecessarily delayed and now he will be trapped in the vices of the slow legal system of the country. All this delay is unwanted and vague and is a result of some decades-old mind-set which was not noticed even when thrown light upon.
There can be numerous such possibilities and stories where the common man of the nation falls prey to such provisions and with little or no legal knowledge runs in a circle where the only constant outcome is delayed justice. Issues like this and many more should be looked upon and amendments should be made India urgently needs such changes when its justice delivery already lags and such provisions are worsening the same. Hopefully, this particular PIL will bring some changes for the good and court would take steps to consider other such provisions as the laws need to be changed with the change in time and it is important for the law to be dynamic and evolving.
Author(s) Name: Medha Mishra (Banaras Hindu University)