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Synopsis

The Delhi High Court has held that in a police investigation, there cannot be scope of anonymity, as identification is essential for maintaining justice and security. 

“In police investigations, there cannot be any room for anonymity, as identification is essential for ensuring justice and maintaining security”, the Bench of Justice Swarana Kanta Sharma held. 

The Court also noted, “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”. 

Advocates M. Sufian Siddiquin appeared for the Petitioner, while Additional Standing Counsel Rupali Bandhopadya appeared for the State and Advocate Manisha Agrawal Narain appeared as Amicus Curiae.

The Petitioner claimed that the police forcibly took an accused woman to the station without allowing her to wear her veil. As a result, she filed a complaint alleging misconduct.

However, the State contended that the petitioner's account of events was untrue and fabricated, asserting that law enforcement agencies followed proper legal procedures. The State pointed out that the Petitioner was observed standing on her balcony without a veil during the incident.

The Delhi High Court, through an order dated 30.11.2023, directed the State to preserve CCTV footage from cameras near the Police Station of Chandni Mahal and those near the Petitioner's residence leading to the police station for the period from 01:00 AM to 05:00 PM on 06.11.2023.

The report submitted by the Amicus Curiae addressed the petitioner's plea for police sensitization regarding the observance of pardah by women. It highlighted concerns about the potential misuse of burqa/veil/pardah by law offenders to conceal their identities, hindering effective police investigations. The report questioned whether veiling is an essential religious practice in various communities and discussed interpretations from Hindu and Islamic texts. While acknowledging the right to privacy under Article 21, the report emphasized the need for police to identify individuals for law enforcement purposes. However, the report also stressed that interactions with pardanashin women should uphold dignity and decency, including the presence of female officers during searches.

The Court examined the contentions of the parties and the report and framed the following issues:

1. Whether religions mandate wearing of pardah, veil, ghoonghat, and any restriction or non-opportunity to wear pardah during investigation violates Article 25 of the Constitution.

2. Whether women wearing veil should be afforded specific safeguards, ensuring time and privacy for them to properly wear their veils.

3. Whether the Court should issue directions for sensitization of Delhi Police regarding religious, social, and customary practices observed by pardanashin women.

The Court first 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. However, it 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.

The Court rejected the Petitioner’s claims of being a pardanashin woman on grounds of not meeting the legal criteria for the same. It emphasized the multifaceted role of policing in maintaining order, enforcing laws, and ensuring safety, guided by democratic principles and the rule of law. Policing must be impartial, fair, and respectful of cultural and religious sensitivities, balancing individual rights with public safety. The principle of reasonability guides law enforcement actions, ensuring fairness and proportionality, especially concerning arrests.

Regarding the second issue, the Court observed the general directions issued to sensitize the police force about the religious and social customs of women who observe pardah. It noted that the contemporary legal framework aims to protect the dignity of women during criminal investigations, including specific procedures for the arrest and search of women outlined in the Code of Criminal Procedure, 1973 (CrPC).

The Bench observed that CrPC provides comprehensive guidance on arrest procedures (Sections 41 to 60A), imposing reasonable limitations, especially concerning the arrest of women. For search procedures, Sections 47 and 51 outline the process for conducting searches of individuals and places. Searches of arrested women must be conducted by female officers with utmost decency and respect for their dignity. Additionally, if the premises to be searched is the primary residence of a woman who does not appear in public due to custom, notice must be provided to her before the search begins. The law already provides safeguards to uphold women's dignity during arrests, searches, and investigations. Thus, the right to dignity extends to all women, regardless of religion, faith, or custom.

The Court emphasized that in police investigations, anonymity should not be allowed under the guise of religious practice or personal choice, as identification is crucial for justice and security. Directives must be rooted in legal principles, ensuring impartiality and fairness to all individuals involved in the investigative process, regardless of religious affiliations, the court said.

The Bench held that a judge must prioritize fidelity to the law for the greater good of the community while upholding the fundamental rights of every citizen. Judicial decisions must be practical and grounded in procedural and substantive grounds to avoid unjustified constraints on investigative agencies. Despite being trained in law and precedents, judges now also engage with social policy through their rulings, which can affect a large number of community members. However, such judgments 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.

Accordingly, the Court disposed of the Petition.  

Case Title: Reshma v The Commissioner Of Police (2024:DHC:1694)