Police Protocols for Women Based on Law, Not Religious or Customary Interpretation of 'Pardanashin': Delhi High Court

New Delhi: The Delhi High Court has clarified that police procedures during criminal investigations involving women, including search and arrest, are governed by existing statutory laws like the Code of Criminal Procedure (CrPC) and are not to be dictated by specific religious practices or interpretations of terms like 'pardanashin'.

Justice Swarana KantaSharma , presiding over a writ petition, rejected a plea seeking special directions for the Delhi Police to sensitise officers regarding women observing 'pardah' (veil) based on religious belief or personal choice, and to grant them additional time and privacy to wear veils during interactions or arrests.

Case Background:

The petition stemmed from an incident on the night of November 5-6, 2023, involving police presence at the petitioner's residence in connection with a serious assault case where her brothers were accused. The petitioner alleged that police officials illegally entered her house, forcibly dragged her out without allowing her time to wear her 'pardah' (veil), and took her to the police station, violating her dignity and fundamental rights under Article 21. The police, however, claimed the petitioner was unveiled in her balcony, denied knowledge of her brothers' whereabouts, and later requested to be taken to the police station due to fear of retaliation. While personal reliefs regarding inquiry into the incident were satisfied or addressed separately, the petitioner insisted on adjudication of the prayer for general directions to sensitise the police force.

Petitioner's Contentions:

The petitioner, identifying herself as a 'pardanashin Muslim woman', argued that wearing 'pardah' is a fundamental right protected under Article 25 (freedom of religion) and Article 21 (right to dignity). The counsel contended that 'pardah' practices, including forms like 'ghoonghat', 'pallu', 'dupatta', 'burqa', and 'hijab', are observed across various religions in India and signify modesty, dignity, and privacy. He argued that police lacked sensitivity towards these practices, violating the dignity of women who observe them. The petitioner sought comprehensive training for police, including cultural awareness, communication strategies, and special provisions for identity verification and witness statements for such women.

State's Response:

The State argued that the petitioner's claims were false and aimed at diverting attention from her brothers' actions. Regarding the prayer for sensitization, the State contended that existing legal safeguards are sufficient to protect the dignity of individuals, including women, during investigations and that introducing extra layers of procedure based on religious practices could hinder effective investigation, search, and arrest. They also disputed the petitioner's assertion that 'pardah' is mandated in most religions mentioned.

Amicus Curiae's Report:

The Court appointed an Amicus Curiae, Smt. Manisha Agrawal Narain, to assist on the sensitization issue. The Amicus's report highlighted the global debate between veiling/privacy and the need for identification for public order and security. It noted that veiling can hinder identification crucial for investigation. The report examined whether veiling is an essential religious practice (ERP) in various religions, noting that this is a key legal test for Article 25 protection. Citing precedents, the report suggested that ancient Hindu texts do not mandate veiling, and while the ERP status of hijab/burqa in Islam is pending before the Supreme Court, the five duties of a Muslim might not necessarily include mandatory veiling. The Amicus concluded that while dignity must be maintained (as provided by existing law), there is no fundamental right to remain unrecognised or anonymous, which could impede investigation.

Court's Analysis and Findings:

Justice Sharma framed the core issues as whether veiling is mandated by the religions mentioned by the petitioner (Hinduism, Islam, Sikh ism, etc.) warranting Article 25 protection, whether women choosing to veil need specific additional safeguards from police, and whether directions for police sensitisation are necessary.

The Court extensively examined the legal concept of 'pardanashin woman', citing judicial precedents dating back to the Privy Council. It clarified that the term, in its legal connotation, refers to women who live in strict seclusion, having imperfect knowledge of the world, primarily in the context of contractual capacity and protecting them from undue influence. This legal concept, the Court noted, is distinct from merely observing 'pardah' or wearing a veil due to religious belief or personal choice in modern times, particularly in urban settings.

Addressing the argument about 'pardah' in various religions, the Court analyzed references to Hindu scriptures ( Ramayana , Brihadaranyaka Upanishad , Sanskrit plays) and deities like Mata Sita, finding no mandate for Hindu women to wear a veil or be 'pardanashin'. It distinguished between 'religion' and 'dharma' in Hinduism, stating that dharma pertains to fulfilling duties in various roles, not necessarily religious mandates like wearing a veil. Similarly, the Court found no concept of mandatory face veiling among Sikh women, noting that covering the head (e.g., with a 'chunni') is customary in sacred spaces but not a veil. Regarding Islam, the Court noted that the issue of hijab/burqa as an essential religious practice is pending before the Supreme Court and therefore, the High Court would not delve into it, but acknowledged that without proof of it being an ERP, it might not qualify for Article 25 protection in that context.

The Court then reviewed the existing legal framework governing police interaction with women, specifically Sections 46(4), 47(2) proviso, and 51(2) of the CrPC. These provisions mandate that arrests of women after sunset and before sunrise require permission and a female officer, searches of women must be by another female with strict regard to decency, and a woman residing in an apartment to be searched who does not appear in public must be given notice to withdraw before entry. The Court held that these provisions already provide sufficient safeguards to ensure the dignity of all women during investigation, irrespective of their religious beliefs or dress code choices.

Rejecting the need for additional directions, the Court reasoned that imposing mandatory protocols for women who wear veils could seriously impede police investigations, especially in urgent situations like apprehending accused persons or recovering evidence. Providing additional time could allow evidence destruction (particularly digital evidence) or facilitate escape, posing risks to public safety and the integrity of the investigation. The Court provided illustrations of how such a requirement could be misused.

The judgment emphasized that fundamental rights under Article 21 and 25, while crucial, are subject to reasonable restrictions, including those necessary for maintaining public order and national security, which effective policing serves. The right to dignity under Article 21 applies universally to all, and there is no fundamental right to anonymity that can obstruct investigation.

Justice Sharma stressed that judicial directives must be "justice driven and not faith driven," rooted in legal principles and impartial. Issuing faith-based directions would exceed constitutional bounds and undermine the rule of law. The Court highlighted the importance of practicality in judgments, ensuring they do not become roadblocks for law enforcement while balancing individual rights with societal needs.

Decision:

The Delhi High Court concluded that the petitioner had not made a case for issuing specific directions for the sensitization of police based on the concept of 'pardanashin' women or women who observe veiling as a religious practice or personal choice. The existing legal framework under the CrPC is sufficient to protect the dignity of all women during investigation. The Court reiterated that the term 'pardanashin' is a legal concept related to contractual capacity due to seclusion, not a description applicable to all women who wear veils.

However, the Court directed that a copy of the judgment be forwarded to the Director (Academics), Delhi Police Academy, for the purpose of training and sensitisation of police officers on the existing legal safeguards concerning the procedure for search, arrest, and interaction with women during investigations, ensuring they are aware of and bound by the statutory provisions and judicial precedents that uphold the dignity of all women.

The petition was disposed of in these terms.