Gender Justice and Criminal Procedure: Rethinking the Ban on Women’s Arrest After Sunset

This paper critically assesses the most debated amendments of the ‘Code of Criminal Procedure, 1973’, namely,’ section 46(4)’ which denies ‘the arrest of women after sunset and before sunrise, and’ its consequent provision ‘of the Bharatiya Nagarik Suraksha Sanhita 2023’ section 43(2), while this provision is designed to save women from violence in the custody and support their dignity; however, along with feminist legal theory, constitutional jurisprudence, and empirical evidence, the provision is critically reviewed as a typical example of protective paternalism undermining gender justice. The paper cites this ban as a gender-discriminative device, which not only supports idealistic biased conceptions and stereotypes but also generates differentials in criminal accountability and invites socioeconomically better-off women to take advantage of it. In addition, this research is showing that the regulation is failing the constitutional requirements of equality (Article 14) and non-discrimination (Article 15), violating India’s international obligations under CEDAW and opposing Supreme Court’s constitutional morality and anti-stereotyping doctrine.