Gender Justice and Criminal Procedure: Rethinking the Ban on Women’s Arrest After Sunset
Jatinder Kaur[1]
Dr. Dev Parbhakar[2]
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.
By comparing gender-neutral protective measures of such countries as ‘the United Kingdom, United States, and South Africa,’ and by giving examples of the universal effectiveness of protections like the D.K. Basu guidelines, the paper argues that the legitimate way to gender justice is not the existence of identity-based exemptions, but rather the availability of robust, rights-based, and universally applicable procedural safeguards. The paper closes with concrete proposals for legislative changes that would place the emphasis on protection by risk rather than by gender, thus, ensuring equal treatment, investigative efficacy, and institutional accountability.
KEYWORDS
Gender Justice; Criminal Procedure; Feminist Jurisprudence; Protective Paternalism; Equality before Law; Women’s Rights; Constitutional Morality; CEDAW;; Arrest of Women; Gender-Neutral Reforms.
