The Delhi High Court in its 64-page landmark judgment, while giving a detailed response with explanations to a Muslim Purdanashin Woman’s plea, has said that in police investigations, there cannot be any room for anonymity, as identification is essential for ensuring justice and maintaining security.

While substantiating the same, a Bench of Justice Swarana Kanta Sharma observed, “…Allowing anonymity under the guise of religious practice or personal choice could open the door to abuse and hinder the investigation process. Therefore, it is important that law enforcement agencies have the authority to identify individuals when necessary, in order to maintain public order, regardless of veiling practices and also regardless of the fact that whether these practices would be covered under Article 25 the Constitution or not. This would ensure transparency, accountability, and fair treatment of all individuals involved in the investigative process”.

The Bench further said that the directions issued by any Court must be rooted in legal principles, rather than being influenced by religious considerations and that judgments should recognizing that criminality transcends any specific religious affiliation as it concerns the welfare of society as a whole.

Additionally, the Bench noted, “As far as the reference of the learned counsel for the petitioner to Mata Sita (माता सीता), in context of Ramayana (रामायण), is concerned, this Court observes that neither in the Ramayana nor in any of the ancient or modern temples of Hindus, Mata Sita has been projected or shown to be wearing a veil or a ghoonghat or pardah...The religious texts of Hindus are not mere books, but as Hinduism itself, are a way of life which prescribe a way of life to those who believe in it to follow it, in its spirit. Further, by following their dharma (धमम) i.e. duty in different roles and relationships in the society, continue their journey to attain the goal of Moksha (मोक्ष) i.e. being one with the supreme power that the Hindus believe in. Even this goal is an individual choice, however, practising the dharma prescribed for every role in one‘s life is desirable”.

The Bench further held that there was no concept of any ‘veil‘ or covering the face even in Sikh customs and traditions, to negate the argument of prevalence of pardah system among Sikh women. In Christianity, Judaism, Jainism, the Court said that the references were unsubstantiated by any religious text, authentic proof or writing.

However, the Bench did not delve into Islam, as to whether or not ‘hijab’ is an essential religious practice under Article 25 of the Constitution of India, since it is a matter sub-judice before the Apex Court.

It is pertinent to note that the petitioner was trying to bring home a point that even in dharma in the context of Hinduism, was to follow the practice of veil, ghunghat, pardah for a Hindu woman, and is a matter of dignity, mandate of religion and is intertwined with issue of right to practice religion and religious practices.

However, vehemently rejecting the parallel drawn by the petitioner, the Court distinguished between ‘religion‘ and ‘dharma‘ in Hinduism, and said that “Hinduism is Sanatan”.

Advocate M. Sufian Siddiqui appeared for the petitioner and ASC for the State Rupali Bandhopadya appeared for the State and Advocate Manisha Agrawal Narain appeared as an Amicus Curiae.

The petitioner's (Purdanashin Muslim woman) grievance in the matter was against the police officers, about their alleged insensitivity in protecting the pardanashin women and not giving them enough time to wear the pardah as per their religion.

The petition, therefore, sought a direction to sensitize the Delhi Police apropos the sacrosanct religious, social customs and practices observed by all the women who observe Purdah either as a religious belief or as a part of their personal choice belonging to any religion, which are Guaranteed under Article 21 of the Constitution as their Fundamental Rights.

With respect to all the other prayers in the writ petition except the prayer for issuance of general guidelines to police, including the prayer for grant of compensation to the petitioner for alleged acts of police officers, the Court had by an earlier order in January 2024 directed that writ petition will be treated as a representation on behalf of the petitioner by concerned DCP (Vigilance) and a decision be taken within two months.

Therefore, in the Judgment, the Court is only dealing with the issue of issuance of general directions to the police to sensitise the police force apropos the sacrosanct religious, social customs and practices observed by all the women who observe pardah either as a religious belief or as a part of their personal choice belonging to any religion, while keeping in mind the submissions made before in this Court that many women in different parts of the country and the world are Pardanashin.

The Bench, accordingly, recorded the following findings:

-concept of pardanashin woman is essentially a legal concept, not in context of any religious practice, but in respect of capacity to enter into a contract.

-concept of pardanashin women in Indian law essentially revolves around seclusion of a woman. There is less relevancy of this concept in the modern era especially in the big cities considering the background and the lifestyle of modern women.

-through references made in the judgment to Ramayana and Mata Sita, and Brihadaranyaka Upanishad, the Court pointed out the fact that neither the Hindu women practised any pardah nor was it mandatory for them. In Hindus, there is no mandatory provision to wear veil or ghoonghat, or Hindu women being pardanashin by virtue of their religion. The same is the scenario in case of Sikh women. In India, however, everyone can make their individual choices.

-the law enforcement agencies and their investigations cannot be driven by religious practices but have to be community and safety driven.

-Article 25 of the Constitution has to surrender in favour of the safety of the country and the community, irrespective of the gender of the accused, and is also subject to reasonable restrictions such as maintaining public order.

-Faith based directions cannot be issued by the High 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 Bench further responding to the prayer sought for, observed, “There is no gainsaying that all the police officers, while carrying out investigation in a criminal case, are bound by the laws governing the procedure for search, arrest, etc. which already encompass the safeguards for ensuring dignity of women. In other words, the powers of police are already subject to several reasonable restrictions imposed vide statutory laws as well as judicial precedents, which also include safeguards for ensuring dignity of all women. No other directions, including faith based directives, are called for in this regard”.

Consequentially, the Bench directed a copy of the judgment to be forwarded to Director (Academics), Delhi Police Academy, for the purpose of training and sensitisation of all concerned.

Appearance:

Petitioner: Advocates M. Sufian Siddiqui, Rakesh Bhugra, Niyazuddin & Alya Veronica

Respondent: ASC for the State Rupali Bandhopadya, Amicus Curiae Manisha Agrawal Narain

Cause Title: Reshma v. The Commissioner Of Police

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Justice Swarna Kanta SharmaDelhi High Court

Agatha Shukla