Pardanashin’ women not entitled to special treatment during policing to ensure public order, rules Delhi High Court

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By Our Correspondent

NEW DELHI-– In a significant judgment delving into the functioning of law enforcement agencies for ensuring public order and during their investigations, the Delhi High Court has held that ‘Pardanashin’ (veiled) women are not entitled to any special treatment based on their religious practice or personal choice. The police have the authority to identify individuals who cannot claim anonymity under the guise of their personal laws, the court said.

A Single Judge Bench of the High Court handed down the verdict last week on a writ petition moved by a Muslim woman, who had sought an impartial probe and action against the police personnel who had allegedly stormed into her house and forcibly taken her to a police station without her veil and subjected her to degrading treatment.

The woman claimed that on the intervening night of November 5 and 6, 2023, at around 3 a.m., certain police officials had barged into her house, held an illegal search, paraded her without her veil to the police station and then detained her for 13 hours in flagrant violation of law.

The petitioner’s counsel, M. Sufian Siddiqui, made some powerful arguments while explaining the ‘Purdah’ practices in the court. Siddiqui said that ‘Purdah’ was a cultural and religious tradition followed by many women across different communities transcending religious boundaries in India. Often associated with veiling and seclusion, it signifies a commitment to modesty, dignity, and privacy.

The police force, as the frontline enforcers of law and order, must familiarise themselves with the cultural nuances surrounding ‘Purdah’ to ensure respectful and effective interactions with women adhering to this tradition. It was argued that Indian laws, including constitutional guarantees of freedom of religion and protection of women’s rights, form the foundation for a balanced approach. The police need to be aware of these legal safeguards while discharging their duties. Respecting religious freedom, gender equality, and the right to privacy are crucial elements that should guide police interactions with women observing ‘Purdah’, said the lawyer.

The Bench of Justice Swarana Kanta Sharma held that in a police investigation, there cannot be any scope of anonymity, as identification is essential for maintaining justice and security. The court noted that it was important that law enforcement agencies had 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 (freedom of religion) of the Constitution or not. This would ensure transparency, accountability, and fair treatment of all individuals involved in the investigative process, the court said.

The judge refused to pass any directions to law enforcement agencies to show “greater sensitivity” towards the needs of ‘Pardanashin’ women. She observed that an investigating agency has to follow the principles of impartiality, fairness, and reasonability, and directing them to act in a particular way that may be against the interest of society would be unjust and may leave scope for misuse.

In its 64-page judgment, the court said the fundamental rights, including those enshrined under Article 25 of the Constitution in relation to freedom of religion, are surrendered in favour of the safety of the country and community, irrespective of the gender of the accused.

“It is crucial to recognise that policing is not tailored to serve the interests of any specific religious or any cultural community alone. Rather, this court holds that it has to be essentially guided by the principles of impartiality, fairness, and reasonability.” Issuance of an additional direction to first inquire from a woman as to whether she is a ‘Pardanashin’ woman or she wears any form of veil according to her religious belief or customary practices, and then to grant additional time and notice to wear pardah or veil, in addition to following the safeguards already provided in law, on the ground of exhibiting awareness and sensitivity of the police will be inviting an accused to misuse the directions and utilise the time so gained, at times also on falsehood, to abscond or destroy evidence, said the court.

The court also observed that the concept of ‘Pardanashin’ women in the modern era was “less relevant”, especially in big cities, and it would rather use the phrase “women who observe a particular dress code in accordance with their beliefs and faith”. The court said the ‘Pardanashin’ term could be used in the past in the context of women who were not empowered nor were considered well conversant with worldly affairs.

The Judge observed that among the Hindus, there was no mandatory provision to wear a veil or ghoonghat and the same was the scenario for Sikh women. However, everyone made their individual choices. The court also noted that police officers are bound by the provisions of the Code of Criminal Procedure as well as judicial precedents that already provide for measures for upholding the dignity of women while either arresting or searching them or carrying out any investigation.

“In police investigations, there cannot be any room for anonymity, as identification is essential for ensuring justice and maintaining security. Allowing anonymity under the guise of religious practice or personal choice could open the door to abuse and hinder the investigation process,” the judgment stated.

The court said while the sensitivity towards cultural diversity and equipping police personnel with knowledge, skill and attitudes to deal with females will be of utmost importance, at the same time, directing the police to act in interest of a particular gender in a particular way, which may be opposed to the interest of society at large, will be unjust.

The court disposed of the petition while pointing out that the judgments in such matters should align with legislation and state policies concerning the safety and security of the country or community. Impartiality distinguishes judges and their judgments, ensuring fair adjudication of issues while remaining sensitive to broader social concerns.

“While certain legislations may be gender-specific, judicial decisions remain genderless, reflecting the collective legal acumen of judges and the lawyers assisting the court,” the Judge observed in the verdict. The judgment explored the meaning and scope of ‘Pardanashin’ women, noting that it refers to women adhering to strict rules of seclusion, often shielding themselves from the outside world behind veils or screens.

The court also expounded on the legal definition of the term, observing that a woman is considered ‘Pardanashin’ when she lives in complete seclusion, detached from broader societal interactions. The Court noted that legal protections for ‘Pardanashin’ women are based on the acknowledgment that their seclusion makes them vulnerable to exploitation, with special safeguards provided to mitigate these risks and uphold their rights and interests.

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