‘Pardanashin Woman is not religious but legal concept’; Delhi High Court upholds police authority and women’s dignity beyond veil

Delhi High Court

Delhi High Court: A petition was filed by the petitioner stemming from the grievance that at around 3 am, certain police officials, forcibly took the petitioner, who is a ‘Purdahnashin Muslim Woman’ from her residence without her Purdah/Veil and paraded her to the Police Station, illegally detained her at P.S. Chandni Mahal, subjected her to inhuman and degrading treatment including physical assault, violated her dignity, during the night in flagrant violation of Section 46(4) & 60(A) CrPC, thereby causing brazen infraction of her Fundamental Rights as guaranteed under Article 21 as well as International Human Rights as Guaranteed under Article 3, 5 & 7 of the United Nations Universal Declaration of Human Rights‘ (UDHR). Swarana Kanta Sharma, J., held that a woman’s dignity is inherent and extends beyond cultural practices like the veil and upheld the principles of equality and non-discrimination, and that every individual, regardless of religious beliefs, deserves respect and protection of their fundamental rights, thus ensuring a more inclusive and just society. The Court directed the police to undergo sensitization programs aimed at fostering greater awareness and understanding of the diverse cultural practices and religious beliefs observed by women, including those who wear the pardah.

The case involved an incident where a quarrel took place in Delhi, resulting in the assault of Mohd. Tahir and his nephew, Mohd. Anas, allegedly by Mohd. Rehan, Mohd. Irfan, Mohd. Gayasuddin, and others. Subsequently, Mohd. Anas was further attacked in the hospital. The police intervened, leading to a conflict with the petitioner, the sister of the accused. The petitioner alleged mistreatment by the police, including being forcibly taken to the police station without being allowed to wear her veil, while the police claimed that their actions were justified. The court ordered the preservation of CCTV footage and directed the concerned authority to investigate the matter, with a final judgment reserved regarding one aspect of the petitioner’s plea.

Counsel for petitioner argued that the petitioner, a pardanashin Muslim woman, has the fundamental right to wear pardah, the Islamic dress code for women, a right protected under Article 25 ensuring freedom of religion. Moreover, Article 21 guarantees personal liberty, including the right to live with dignity and make choices aligned with individual autonomy. The counsel emphasized Article 29, which protects minority interests, reinforcing the right to preserve distinctive cultural practices, potentially including religious attire. The argument contended that the petitioner’s right to wear pardah does not obstruct police duties or infringe on others’ rights. It does not fall within reasonable restrictions imposed by the Constitution, as it doesn’t affect public order, morality, health, or other provisions.

The counsel urged sensitizing the Delhi Police on respecting and understanding women who observe pardah, suggesting training initiatives covering cultural awareness, legal safeguards, effective communication, and building trust. The counsel highlighted that pardah practices exist across various religions, from Sikhism to Hinduism, and are deeply rooted in Indian culture and history. The petitioner’s counsel criticizes the Delhi Police for insensitivity towards religious and social practices of women observing pardah, arguing a violation of Article 21. They stressed on the importance of recognizing and respecting these practices in a multicultural society like India.

Counsel for State contended that the petitioner’s claims are false and fabricated, asserting that law enforcement agencies followed due process. He argued that there’s no need for additional sensitization procedures for police officers, as existing safeguards protect the dignity of all individuals, including the accused. Regarding the petitioner’s assertion of being a pardanashin woman, the ASC highlights that she was observed standing on her balcony without wearing any veil, contradicting her claim. It was argued against the petitioner’s request for police sensitization, stating that there’s no such concept as pardah or pardanashin in most religions, and therefore, such relief should not be granted.

The report of the Amicus Curiae presented additional perspectives, highlighting the ongoing global debate surrounding the privacy of pardanashin women and the necessity for identifiability in law enforcement. While acknowledging the cultural and religious significance of veiling, the Amicus Curiae suggested that veiling may obstruct efficient investigation by providing anonymity in public spaces. Citing legal precedents, the Amicus Curiae argued that veiling may not constitute an essential religious practice, particularly in Hinduism. It was also contended that the right to privacy under Article 21 does not necessarily include the right to remain unrecognized or anonymous. However, it was emphasized that pardanashin women should be treated with dignity and decency by law enforcement agencies, with appropriate measures taken to ensure respectful interaction, such as the presence of female officers during searches.

The issues for consideration are as follows:

I. Whether the religions mentioned by the petitioner, i.e. Hinduism, Islam, Sikhism, Jainism, Christianity, mandate wearing of pardah, veil, ghoonghat, and any alleged restriction or grant of non-opportunity to wear pardah during any stage of investigation will amount to violation of Article 25 of the Constitution of India?

II. Whether women, who choose to wear veil, ought to be afforded specific safeguards, entailing that law enforcement agencies guarantee sufficient time and privacy for them to properly wear their veils?

III. Whether this Court should issue directions for sensitization of officers of Delhi Police apropos religious, social and customary practices observed by pardanashin women?

The Court noted that the concept of ‘pardanashin woman‘ is essentially a legal concept, not in context of any religious practice, but in respect the capacity to enter a contract. As the concept of pardanashin women in Indian law essentially revolves around seclusion of a woman from the outer world and society at large resulting in their lack of understanding of societal affairs, there is less relevancy of this concept of pardanashin women in the modern era especially in the big cities considering the background and the lifestyle of modern women. Since the Counsel for the petitioner had taken the Court through various religious scriptures to show the prevalence of practise of pardah among Hindus, Sikhs, etc., the discussion made by the Court on Ramayana & Mata Sita, and Brihadaranyaka Upanishad, will point out the fact that neither the Hindu women practised any pardah nor was it mandatory for them. They always were empowered till a particular era, and history will speak for itself regarding its causes when Hindu women were burdened with the weight of a pardah, which though weightless, carried unbearable weight for a woman who wears it, which cannot be explained in words.

The Court further noted that in India, however, everyone can make their individual choices. Further, law enforcement agencies and their investigations cannot be driven by religious practices but must be community and safety driven. The fundamental rights, including those enshrined under Article 25 of the Constitution must surrender in favour of the safety of the country and the community irrespective of the gender of the accused, and in the case of Article 25, the rights are subject to reasonable restrictions such as maintaining public order. Faith-based directions cannot be issued by this Court, for the police officers who carry out investigation in criminal cases, lest it affects their power to investigate as provided to them by law.

The Court acknowledged the petitioner’s request for directions regarding the sensitization of police officials on special procedures for women who wear pardah. However, the Court emphasized that existing legal safeguards and procedures already ensure the dignity of women during police investigations. It reiterated that police officers are bound by statutory laws and judicial precedents that provide safeguards for all women, regardless of religious practices. Furthermore, the Court discussed the importance of correctly interpreting historical and religious texts in legal proceedings. It asserted that courts must refer to scriptures and commentaries without imposing personal faith or morality. The Court clarified the distinction between religion and dharma and rejected the notion that wearing a veil makes a woman pardanashin (secluded). The Court acknowledged the role of lawyers in advocating for social causes and highlighted the synergy between the bar and bench in addressing systemic injustices. The Court emphasized the importance of unbiased treatment and protection of fundamental rights for all individuals, irrespective of their background or beliefs.

Thus, the Court held that wearing a veil does not automatically render a woman pardanashin (secluded), rejecting the notion that religious practices should define a woman’s status. Instead, it emphasized that legal concepts like religion and dharma are distinct and clarified that the court’s role is to uphold the law and the constitution without being influenced by personal beliefs or opinions.

[Reshma v. Commissioner of Police, 2024 SCC OnLine Del 1523, decided on 01-03-2024]

Advocates who appeared in this case :

Mr. M. Sufian Siddiqui, Mr. Rakesh Bhugra, Mr. Niyazuddin & Ms. Alya Veronica, Advocates for petitioner

Ms. Rupali Bandhopadya, ASC for the State.

Ms. Manisha Agrawal Narain, Amicus Curiae

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