'BNSS Removed Discriminatory Provision' : Supreme Court Closes Challenge To CrPC Section Which Says Only Male Family Members Can Accept Summons

The Supreme Court on Tuesday(July 9) closed a petition challenging a gender discriminatory provision in the Code of Criminal Procedure 1973 taking note of the fact that the statute's replacement, the Bharatiya Nagarik Suraksha Sanhita(BNSS) 2023, has removed the provision.

The petition challenged Section 64 of the Code of Criminal Procedure on the ground that the said section discriminated against women by treating female members of a family incapable of accepting summons on behalf of the person summoned.

 It may be noted that Section 64 reads as follows:

"Where the person summoned cannot, by the exercise of due diligence, be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him..."

The corresponding provision in the BNSS, Section 66, does not use the term "male", enabling any adult family member to receive the summons. Attorney General for India R Venkataramani informed the bench comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Manoj Misra about the changed provision.

"The Parliament while enacting BNSS has incorporated provisions which redress the greivance," the bench noted in the order while closing the petition as In infructuous.

A bench of Chief Justice DY Chandrachud and Justice Hima Kohli had issued notice in the petition in November 2022. 

As per the petition, while the Civil Procedure Code, enacted in 1908, required the summons to be served on any adult member of the defendant's family regardless of their gender, the CrPC, which was enacted after 65 years of CPC was "anarchic and dogmatic". It states that–

"Cr.P.C. does not consider an adult female member of the family capable and competent to receive summons."

As per the petition, the exclusion of female family members to receive summons on behalf of the summoned person violates the women's right to equality guaranteed to them under Articles 14 and 15 of the Constitution of India, the right to know guaranteed to them under Article 19(1)(a) of the Constitution of India, and right to dignity guaranteed to them under Article 21 of the Constitution of India. 

Additionally, the petition states that the provision fails to account for the following situations:

A. When the person summoned resides only with the female family members or;

B. When the only person available at the time of service of summons is a female.

It stated that the possibility of such situations is particularly high in light of the stark gender gap in the workforce between the males and the females, i.e., only 22% of the Indian women are at work, which entails that the remaining 78% of women are at home.

CASE TITLE: Kush Kalra v. UoI And Anr. WP(C) No. 958/2022

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