ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Some Thoughts on Section 64 of CrPC

Does ‘He’ Include ‘She’?

Section 64 of the Code of Criminal Procedure 1973 which deals with the serving of summons when the person concernced cannot be found, speaks of leaving the summons with “some adult male member of his family residing with him.” This provision is violative of Articles 14, 15 and 21 of the Constitution and the word “male” being unconstitutional, deserves to be struck down.

“The General Clauses Act says ‘He’ (masculine) includes ‘She’ (females). I doubt that. Linguistically, only S-H-E can include H-E and not the other way round,” says Usha Tandon in an introductory class on “gender justice and feminist jurisprudence.”

The inconsistency of how the rule originated and was applied in the past is the best evidence of how law itself functioned to reinforce structures of patriarchy. While for the purposes of taxing statutes and criminal matters, “he” included “she,” the same was not true for voting rights. When convicted for “illegally voting” in the 1872 presidential election, this was Susan B Anthony’s famous argument:

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