Reshma v. The Commissioner of Police

14. Thereafter, the order dated 30.01.2024 was passed wherein it was directed that present writ be treated as representation by the concerned DCP (Vigilance). The same reads as under: ―4. As far as other prayers are concerned, the present writ petition will be treated as a representation on behalf of the petitioner herein. The concerned DCP (Vigilance) will look into the same and the intimation will be given to the petitioner herein about the outcome of the same, within two months from today.‖

15. However, learned counsel for the petitioner had prayed for passing of detailed order as far as clause (f) of the prayer is concerned, and this Court had reserved the judgment qua prayer clause (f).

SUBMISSIONS ON BEHALF OF PETITIONER

16. Learned counsel for the petitioner argues that the petitioner herein is a pardanashin Muslim woman, and she has a fundamental right to wear pardah which is the Islamic dress code for women, which not only consists of a scarf that covers the head, the neck and bosom, but it also includes the overall dress that should be long and loose. It is argued that the petitioner, being a Muslim woman, is well within her rights to conduct herself in accordance with the tenets of her religion, including her choice of dress, as protected by Article 25 of the Indian Constitution, which guarantees the freedom to profess, practice, and propagate religion. This extends to matters of personal liberty under Article 21, encompassing the right to live with dignity and make choices aligned with individual autonomy. Additionally, the constitutional safeguard provided by Article 29, which protects the interests of minorities, further reinforces the right to preserve distinctive cultural practices, potentially including religious attire.

17. It is further argued that the Article 25 of the Constitution, which is a fundamental right, does not come in the way of police in the discharge of their statutory duties or infringes or encroaches upon the rights of other citizens. It does not fall within reasonable restrictions as imposed on every citizen by the Constitution as it neither affects public order, morality and health nor other provisions of the Constitution.

18. It is prayed that it is not just desired but also the need of the hour to sensitise the Delhi Police qua fostering understanding and respect for women who observe pardah either as a religious belief or as a part of their personal choice belonging to any religion. It is submitted that in a diverse and multicultural society like India, it is imperative that law enforcement agencies understand and respect the cultural practices of various communities, particularly those pertaining to women observing pardah. Pardah, representing a practice deeply rooted in modesty and privacy, requires a nuanced and sensitive approach from the police to ensure the protection of women's rights while upholding law and order. Thus, with a view to sensitise the Delhi police, the following quintessential aspects may be considered, which are as follows:

(i) Understanding pardah practices signifying commitment to modesty, dignity and privacy by the police and ensure that they respect the choice of women adhering to this tradition.

(ii) The Delhi Police be sensitised about the constitutional guarantees and Indian Laws, guaranteeing freedom of religion and observing pardah by women being one of such constitutional guarantees to practice religion.

(iii) Delhi Police being sensitised and trained by cultural experts, community leaders and women from different backgrounds for formulating and preparation of training modules which should cover significance of pardah and its various manifestations across communities.

(iv) Delhi Police be trained with effective communication strategies.

(v) Delhi Police be trained about community, policing and building trust.

(vi) Delhi Police be trained to handle situations by ensuring women are treated with dignity during investigations and interactions.

(vii) Special provisions be made to accommodate pardah practices particularly in context of identity verification or witness statements.

(viii) Monitoring mechanism to evaluate such sensitization programmes.

19. While explaining pardah practices, it is argued that Pardah is 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 pardah to ensure respectful and effective interactions with women adhering to this tradition. It is 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 pardah.

20. It is argued that sensitising the police forces involves comprehensive training initiatives that instil cultural awareness and understanding. Training modules should cover the significance of pardah, its various manifestations across communities, and the legal protections in place for women practising it. Interactive sessions with cultural experts, community leaders, and women from different backgrounds can enhance the police force's sensitivity. It is argued that effective communication lies at the heart of building positive police-community relations. Officers should be trained to communicate respectfully and courteously with women observing purdah, taking into account the cultural and religious sensitivities involved. Clear guidelines on communication, avoiding unnecessary intrusion into personal spaces, and providing women with a comfortable environment for interaction should be emphasised. Argument regarding practice of Pardah existing in all religions and followed by women of all religions

21. It is further argued that the practice of pardah among women in India exists in different forms of „Ghunghat‟, „Pallu‟, „Dupatta‟, „Burqa‟, „Hijab‟ and so on. Covering the head has religious significance, particularly for women since time immemorial.

22. In Sikhism, for instance, the turban, an article of faith, distinguishes Sikhs from the others. Sikh women who have traditionally worn headscarves (chuni) are now wearing turbans, much like Sikh men.

23. It is further submitted that many Hindu women wear the Ghoonghat or the Ghungta, which emanates from the Sanskrit word, Avagunthana in India. There is a wide vocabulary of words for Avagunthana in the earliest forms of Sanskrit. Avagunthana was a cloak-like covering of the upper part of body, Uttariya was a covering till the shoulders, Adhikantha Pata was a covering till the neck and Sirovastra was a covering simply for the head.

24. It is further mentioned that pardah was prevalent even during Valmiki‟s Ramayana. The practice, which signifies ―seclusion of women,‖ ―had assumed the form of a recognized social custom.‖ When Sita sets out with her husband to the forest, Valmiki expresses regret that, “a lady, who had so far not been seen even by the spirits of the sky, should now become an object of public gaze.”

25. Apart from the Ramayana, the head covering or a veil finds a mention in many Sanskrit plays. For instance, Sudraka, the author of Mrichhakatika, mentions that women wore Avagunthana, a thin veil, to hide their beauty and to enhance their coiffures. Similarly, ancient Indian plays–Kalidasa‘s Abhijnana Sakuntalam, Bhasa‘s Pratimanataka, Sisupalavadha, Dashakumaracharita, etc., among others indicate that women wore veils to cover their heads. Argument regarding women wearing pardah/ghoonghat in modern India

26. It is also submitted that even today, in modern India, one finds Hindu women covered by the Ghoonghat. However, Hijab, which is a traditional scarf worn by Muslim women to cover the hair and neck and sometimes the face, is different from Burqa, which is a tip to toe gown covering the entire body. Both, however, are types of veils worn by some Muslim women. Burqa is a word that loosely falls under the category of pardah or veil. It is stated that ‗Pardah‟ is a Persian word translated as curtain, veil, attire worn by women to mark their social and physical segregation from the rest of society by covering their bodies and/or faces. Pardah takes different dimensions depending on the country, place of origin and hence has numerous variations.

27. In the aforesaid background, it is argued that Delhi police officials are highly insensitive and apathetic towards sacrosanct religious and social practices and customs followed by women who observe pardah either as a religious belief or as a part. It is further argued that cogitating the disconcerting facts of the present case, it appears that the Police Officials of Delhi Police are completely insensitive and apathetic towards the observance of sacrosanct religious and social practices and customs followed by all the women who observe pardah 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.

SUBMISSIONS ON BEHALF OF STATE

28. Learned ASC for the State argues that the facts as presented by the petitioner are false and fabricated, and the law enforcement agencies had followed the due process of law. It is further argued that though the petitioner says that she is a pardanashin woman, she was standing in her balcony on the day of incident and looking down the street, without wearing any veil.

29. As regards the grant of prayer (f) i.e. for issuance of directions to police, for their sensitization, it is submitted by learned ASC that there is no such requirement for an extra layer of procedure to be followed by the law enforcement agencies, as it will create a barrier to fair investigation, search procedures, and arrest, when it is required. It is submitted that there exists enough safeguards in law to protect the dignity of every individual, including an accused.

30. It is also argued that there is no concept of pardah or pardanashin in most religions as suggested by the learned counsel for the petitioner and therefore, the relief sought by the petitioner, in the form of issuance of directions qua sensitization of police officers, must be not granted.

REPORT OF AMICUS CURIAE

31. This Court, while reserving this judgment on 30.01.2024, had also passed an order appointing Smt. Manisha Agrawal Narain, Advocate as Amicus Curiae in this case to assist the Court on the issues raised on behalf of the petitioner, as far as prayer clause (f) is concerned.

32. Report dated 22.02.2024 has been filed by Smt. Manisha Agrawal Narain, learned Amicus Curiae. The report begins by summarising that the petitioner has stated that she is a pardanashin Muslim woman who wears burqa; and is seeking sensitization of police regarding the sacrosanct practices of pardah observed by women either as per religion or as per choice. The petition seeks to sensitise police about the sacrosanct religious, social customs and practices observed by all women who observe pardah either as a religious belief or as a part of their personal choice.

33. In the above context, it is submitted by learned Amicus that there has been an ongoing global debate about the privacy of a pardanashin woman on one hand, and the necessity of recognizability and identification of people for the ends of public order and security concerns on the other hand. While Burqa/Veil/Pardah may be worn by well-meaning women, but the same can be misused by the offenders of law to disguise themselves. It is submitted that anything which empowers a person to hide her/his identity may come in the way of efficient investigation, thus affecting public order.

34. It is further submitted that veiling the face or covering the whole body practically veils the identity and recognizability of a person. However, identification of persons is critical to investigation done by the police. Assertion of remaining inside Burqa/Veil/Pardah may lead to promotion of anonymity in public; and can be counterproductive to the investigation.

35. Another issue, as flagged by learned Amicus, is whether the veil is sacrosanct essential religious practice of the various communities in India. It is submitted that in Commissioner of Police v. Acharya Jagadishwarananda Avadhuta (2004) 12 SCC 770, Hon‘ble Apex Court held that essential part of a religion means the core beliefs upon which a religion is founded. The test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion would be changed without that part or practise, and if it be so, then such part could be treated as an essential or integral part of the religion. Some other decisions such as Tilkayat Shri Govindlalji Maharaj Etc. v. State of Rajasthan & Ors AIR 1963 SC 1638, A.S. Narayana Deekshitulu v. State of A.P. (1996) 9 SCC 548, etc. are also relied upon by the learned Amicus in this regard, and it is submitted that on the basis of these tests, Courts have held various practices like triple talaq, cow-sacrifice, Tandav dance, etc. to be not constituting the essential parts of religion.

36. It is then submitted that in Ancient Hindu texts, it is seen that pardah was not an essential religious practice. In this regard, reference is made to excerpts from the Sundarkand, Brihadaranyaka Upanishad, etc.

37. It is also submitted that taking into consideration the five duties laid down for the Muslims by the Prophet and the five ‗Hukum‘ of Allah in Shariat, as per Mulla‘s Mohammedan Law, 5th edition, 2019, it will be difficult to hold that wearing of Burqa/Veil/Pardah is such a mandatory practise which must be followed in order to remain in Islam. It is stated that many countries, including Islamic countries across the globe, have already banned the burqah/pardah/veil.

38. Learned Amicus submits that Article 21 of the Constitution encompasses right to privacy, but whether there is a fundamental right to remain unrecognised or anonymous, is a relevant question here. In this regard, it is submitted that enforcement of law and investigation of offences require effective identification and recognisability of persons. However, this would not mean that pardanashin women should not be treated with decency, and rather, like every other human being, pardanashin women also have a fundamental right to be treated with dignity and decency. However, right to wear Pardah/Burqa/Veil cannot take away the rights of investigating agencies and if required, the police is well within its rights to identify the face of the pardanashin person. In doing so, the police needs to follow the same dignified behaviour with pardanashin women as is required for all other women (which includes presence of lady member in police team, if a woman is to be searched).

ISSUES AT THE CORE

39. The petitioner had approached this Court seeking various reliefs, yet one common thread among her pleas is the call for greater sensitivity towards the needs of ‗Pardanashin women‘ by law enforcement agencies and that in case the relief sought for is not granted, the existing approach and protocol of criminal investigation qua women in Delhi will be in violation of Article 21 and 25 of the Constitution of India. Thus, the issues for consideration before this Court are:

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?

40. Pardanashin women, steeped in tradition and seclusion, embody a cultural practice deeply rooted in history. This term refers to women who adhere to strict rules of seclusion, often shielding themselves from the outside world behind veils or screens. Throughout history, various legal systems and traditions have established special provisions to safeguard the interests and preserve the dignity of pardanashin women in various facets of life, including contractual matters.

41. The history of pardanashin women traces back to the adoption of pardah, a practice originating from Persian customs. Initially embraced by Muslim communities influenced by Persian culture, pardah gradually permeated Northern India during the reign of the Mughal Empire. Under Mughal rule, Hindu upper-class women also embraced the practice, while women from lower socioe-conomic strata, tasked with managing households and engaging in agricultural work, did not adhere to it as rigorously. During the colonial era under British rule, the practice of pardah gained widespread acceptance and was enforced with greater stringency. However, in modern times, its prevalence has declined, coinciding with a shift towards greater openness and independence among women, as well as matter of choice. Despite these changes, the legal protections afforded to pardanashin women remain significant, rooted in principles of equity and conscience.

42. The vulnerability of pardanashin women to exploitation and undue influence is a salient concern addressed by legal safeguards. Given their limited exposure to external influences and the potential for manipulation, it is critical to afford these women enhanced protections under the law. The presumption of undue influence underlines the importance of ensuring that decisions made by pardanashin women are free from coercion or external pressures, thereby safeguarding their rights and preserving their autonomy.

43. While societal norms may evolve over time, the duty to safeguard the rights and dignity of all individuals remains steadfast. Through legal protections rooted in principles of equity and conscience, pardanashin women are afforded the necessary safeguards to navigate a changing world while preserving their cultural identity and autonomy. Judicial Precedents defining ‘Pardanashin Woman’

44. The Hon‘ble Apex Court in case of Mst. Kharbuja Kuer v. Jangbahadur Rai (1963) 1 SCR 456, while discussing the concept of „pardanashin‟ women, referred to the decision authored by five Judge-bench of Privy Council in case of Farid-Un-Nisa v. Mukhtar Ahmad 1925 SCC OnLine PC 44, and observed as under: ―5. …In India pardahnashin ladies have been given a special protection in view of the social conditions of the times; they are presumed to have an Imperfect knowledge of the world, as, by the pardah system they are practically excluded from social intercourse and communion with the outside world. In Farid-Un-Nisa v. Mukhtar Ahmad Lord Sumner traces the origin of the custom and states the principle on which the presumption is based. The learned Lord observed: "In this it has only given the special development, which Indian social usages make necessary, to the general rules of English law, which protect persons, whose disabilities make them dependent upon or subject them to the influence of others, even though nothing in the nature of deception or coercion may have occurred. This is part of the law relating to personal capacity to make binding transfers or settlements of property of any kind." The learned Lord also points out: "Of course fraud, duress and actual undue influence are separate matters." It is, therefore, manifest that the rule evolved for the protection of pardahnashin ladies shall not be confused with other doctrines, such as, fraud, duress and actual undue influence, which apply to all persons whether they be pardahnashin ladies or not.‖ (Emphasis supplied)

45. In case of Smt. Andhi Kuer v. Rajeshwar Singh 1972 SCC OnLine Pat 78, the High Court of Patna expressed as under: ―..The expression “Pardanashin” has not to be confused with a lady observing parda. A lady observing parda may not be a pardanashin lady in the legal sense of the term. The term ―pardanashin lady‖ is not a term of art. It has special legal significance as one who is unable to understand the transaction by virtue of the manner in which she has been brought up…‖

46. In the case of Fayyaz-Ud-Din v. Kutab-Ud-Din 1928 SCC OnLine Lah 554, the Lahore Bench had held that a woman belonging to a family of barbers, keeping a hamam in the town of Delhi, whose females did not live in a state of seclusion, is not pardanashin.

47. The High Court of Madras, in case of Chidambaram Pillai v. Muthammal 1992 SCC OnLine Mad 306, had discussed the judicial precedents on the issue of pardanashin women and had expressed as under:

15. A section of womenfolk in view of the social conditions of the limes are presumed to have imperfect knowledge of the world, as the Supreme Court has said in the case of Mst. Kharbuja Kher AIR 1963 S.C. 1203. They are presumed to have imperfect knowledge of the world, as, by the pardah system, they are practically excluded from social intercourse and communion with the outside world. The origin is traced to the Indian social usages and the general rules of English Law which protect persons whose disabilities make them dependent upon or subject them to the influence of others, even though nothing in the nature of deception or coercion may have occurred, applicable to such section of women…

16. The pardah system as understood by the courts in India is not the system of keeping a woman under veil indoors in zenana, but in seclusion, away from the knowledge of the world, in the sense that they are not ordinarily allowed to interact with the male folk and are kept away from social intercourse and communion with the outside world. The view of the Lahore Court in the case of Favvar-ud-din v. Kutab-ud- Din had almost worked as an alarm for the courts to develop a sense that any strict meaning to parda was going to exclude a greatly deprived section of the society from the protection cloak of the law, namely, the illiterate women and other women having such infirmities that they practically live without any social intercourse and communion with the outside world. The judicial consensus, as we have already noticed, has been expressed thus:- "The rules regarding transaction by the Pardanashin apply equally to illiterate women though they may not be in a strict sense Pardanashin," A Pardanashin may not be illiterate, but she still may be ignorant in the sense that she has an imperfect knowledge of the world, and she is practically excluded from social Intercourse and communion with the outside world. Her ignorance is the curse of a social usage that womenfolk depend upon malefolk for transaction of their business with the outside world. Thus, not all women, but only those those who are practically excluded from social intercourse and communion with the outside world fall in this category. If it is for this reason that they are taken as persons suffering from disabilities which make them dependent upon or subject to the influence of others, the illiterate women who, for the reason of social compulsion are required to move out to work in the fields and elsewhere for livelihood, cannot be said to be less disabled and deprived. Even if they are intelligent to know where to go and how to earn their livelihood, yet they cannot read anything nor write anything, and unless told about the contents by others, will not know what the document contains. To the extent the character, content and the effect of the document are concerned, she has to be presumed to be ignorant by sheer illiteracy, the curse which is still pervading the ancient society particularly the women living in this part of the country, a fact about which, we think, we are competent to take judicial notice. We find ourselves in complete agreement with the view that the special cloak of protection applied to Pardanashin women has to be applied to illiterate women as well.‖ The Changing Meaning and Notions of the Concept of ‘Pardanashin Woman’

48. The changing meaning and notions of the concept of „pardanashin‟ and its relevance in the present times was discussed by the Division Bench of High Court of Gauhati in Mustt. Jubeda Khatun v. Sulaiman Khan 1985 SCC OnLine Gau 15. The relevant observations are as under: ―5. A pardanashin lady, in its legal meaning is a woman of the rank who lives in seclusion, shut in the zenana, having no communication except from behind the pardah or screen with any person save a few near relations. A pardanashin woman need not necessarily be a woman of rank. If on account of the rules and customs of society she has to keep herself within the zenana and to lead a life of seclusion without any contact with the outside world, she is a Pardahnashin woman. However, this old notion has now been taken a notable change along with the age and the circumstances surrounding the society at large. The present society has been advanced to a new dimension in its educational; cultural and social atmosphere. A large number of women folk either Hindu, Muslim or Christian are now holding a responsible job in all spheres of avocation. In the present trend of the society only those who are residing in interior places and governed by strict custom prevailing in the society are confined under Pardah. ***

7. WHAT IS THE POSITION OF THE PRESENT DAY URBAN PARDANASHIN LADIES?

DO THEY STAND IN THE SAME POSITION WITH THOSE OF PARDANASHINS? All town-bred ladies, in parda or not, know that physician should be called when there is illness in the house. Almost all know that when a legal document is to be executed lawyer should be consulted. There may be quasi pardanashin ladies in urban areas but all of them know the necessity of taking lawyer‘s aid in transacting documents. The position is changing fast and as such the application of the principle should be confined to real pardanashin ladies who are really ignorant, infirm and illiterate living in seclusion behind the parda. I am, therefore, of the opinion that principles enunciated should be applied to all pardanashin who men who are really pardanashin…‖

49. Thus, in the legal connotation of the term, a woman qualifies as pardanashin when she leads a life of complete seclusion, detached from the broader societal interactions and experiences. The premise underlying the legal protection afforded to pardanashin women is the recognition that their seclusion renders them vulnerable to exploitation and injustice. By extending special safeguards, the law seeks to mitigate the risks associated with their seclusion and ensure that their rights and interests are upheld.

PARDANASHIN WOMAN: EXAMINING THE MEANING IN THE CONTEXT OF PETITIONER’S USAGE

50. In the contents of petition, it has been mentioned that petitioner is a pardanashin woman and during the arguments before this Court, learned counsel for the petitioner had contended that even in modern India, a large number of women still practice pardah in different religions and are therefore pardanashin women. Therefore, they should be considered as a special category, who should be treated with dignity and sensitivity by the police force while investigating any criminal case.

51. The use of word „pardanashin‟ by the learned counsel for the petitioner was in context of women who observe pardah or veil, and thus, being specifically entitled to protection by this Court by issuance of directions to Delhi Police to sensitise them as to how they should deal with such women who observe pardah. This necessitated this Court to go into the meaning of pardanashin women.

52. The petitioner has employed the term pardanashin interchangeably with burqa, ghoonghat, pallu, etc. and as indicative of someone under a veil. While the petitioner may equate pardanashin with individuals under a veil, such as women wearing burqas, it is essential to recognize the difference between the two.

53. In legal parlance, pardanashin woman would refer to those who are entirely secluded from the wider societal sphere or lack a comprehensive understanding of societal norms and reasoning. This strict interpretation is crucial for determining the applicability of special legal protections afforded to those classified as pardanashin. Such protections are designed to safeguard individuals who, due to their seclusion or lack of understanding, may be vulnerable to exploitation or undue influence.

54. While the petitioner may use the term pardanashin to denote a woman under a veil, this does not align with the legal meaning, which requires complete seclusion or a lack of societal understanding. The petitioner‘s usage of the term pardanashin would include a woman wearing a veil, despite not being living in seclusion or despite possessing sufficient knowledge and understanding of societal norms. History Behind the Veil: Understanding Pardah in Various Cultures

55. The petitioner has broadened the interpretation of „parda‟ to embrace a multicultural perspective, encompassing women from various cultural backgrounds and customs. Hinduism

56. An example of such a traditional custom given by the petitioner is ‗ghoonghat‘ (also called ghunghat, ghunghta, ghomta, orhni, odani, laaj, chunari, jhund, kundh), a form of head covering predominantly worn by Hindu women, even in modern India. Reference is further made to Valmiki‘s Ramayana to submit that Mata Sita also used to practise pardah. It is further pleaded that many Sanskrit plays would reveal that Hindu women in ancient India used to cover their heads/face and hide their beauty.

57. In this regard, this Court notes that presently, the practice of facial veiling among Hindu women may be prevalent to some extent in some parts of India. However, the system of ghoonghat or dupatta or chunni, which the learned counsel for the petitioner has argued as a form of barrier signifying seclusion, is not correct, as in the modern times, the system of ghoonghat or dupatta or chunni is viewed as a symbol of propriety and respect towards others, rather than being a symbol of barrier or seclusion. Thus, it cannot be equated or used as a synonym to the word ‗pardanashin‟.

58. The learned Amicus through her report has also drawn this Court‘s attention towards Brihadaranyaka Upanishad, according to which King Janaka of Videha Kingdom had organised Rajasuya Yagna and had invited all learned sages of India to participate. Hindu woman, such as Gargi, a sage, who had participated in the debate, had won the same by defeating one of the most learned sages Yajnavalkya in front of many others. A woman saint, Maitreyi had also successfully debated with Yajnavalkya in open court. Thus, the women in Hindus, since time immemorial, were empowered.

59. As regards the reference by the learned counsel for petitioner to Sanskrit plays authored by Sudraka or Kalisada, in order to bring home his point regarding the women practising pardah/veil in Hinduism in context with religion, the same is not meritorious since plays are stories which may refer to an attire but not mandate of the faith for a woman to follow. Moreover, it is mentioned in the petition itself that these plays would indicate that “women wore veils to cover their heads”. There is no gainsaying that covering of head by women cannot be equated with covering the face by putting a veil or pardah and such women cannot be termed as pardanashin.

60. 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.

61. This Court also holds that even the reference to the extract of Ramayana by the learned counsel is in isolation without context, and the following extracts from the Ramcharitmanas (रामचररतमानस) would prove to the contrary:

I. II.

III. IV. V.

62. The above extracts from Ramcharitmanas adequately prove that Mata Sita did not wear a veil and therefore, even to refer to her as a pardanashin woman will amount to nothing but distortion of description of Mata Sita in the religious texts. Further, the Ramayana does not project Mata Sita as a weak woman and rather by shallow reading and without understanding the true meaning and concept of Ramayana, a person at times may feel so, as they would not have gone into the deeper depth and meaning of the concept of Mata Sita as to who she was and under which maya (माया), she took birth as a human for a larger purpose of destroying evil forces and thus becoming instrumental in destroying evil forces through Lord Rama (भगवान राम).

63. 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. Hinduism: Religion vs. Dharma

64. Since the learned counsel for the petitioner vehemently argued and referred to the word „dharma‟ and the mandate of dharma to follow the practice of veil, ghunghat, pardah in the context of Hinduism to bring home his point that even for a Hindu woman, to wear the same was, and to some extent even today is, a matter of dignity, mandate of religion and is intertwined with issue of right to practice religion and religious practices, has forced this Court to dwell into the question of difference between the word, ‗religion‘ and ‗dharma‘ in Hinduism. Hinduism is Sanatan.

65. There is a difference between religion and dharma as understood in Hinduism. While practising a lifestyle, a profession and different individual relationships etc., each person is practising his dharma qua that relationship or profession or act. Thus, a different dharma is followed by each individual in his different roles whether professional or personal as understood in Hinduism. The word religion is different, thus, from dharma as understood in Hinduism.

66. To give an example, in Hinduism, the same person will be practising his dharma as a son towards his parents, a different dharma as a husband to his wife, and a different dharma towards his children, siblings, society and nation.

67. To give another example, a Court of law/judge may have its faith as „X‟ being born in a family having full faith in „X‟ and following its tenets, however, the Court‟s dharma as a Judge is to do justice to all individuals before it, irrespective of their faith, commonly known as religion or other considerations such as social or economic status in life which at no cost should waver. The Court‟s dharma as a Judge is not faith „X‟ but doing equal justice to all.

68. This Court, therefore, is of the considered opinion that Hinduism does not mandate pardah for women, as suggested by the learned counsel for the petitioner, as in ancient India, there are examples of empowered women in every profession and individual lives with rights, and the ancient scriptures, the deities and the Gods have never been projected as wearing pardah or prescribing pardah to women as a mandatory practice religious or otherwise. Sikhism

69. As regards Sikhism, it has been mentioned in the petition that “in Sikhism, for instance, the turban, an article of faith, distinguishes Sikhs from the others. Sikh women who have traditionally worn headscarves (chuni) are now wearing turbans, much like Sikh men.”

70. In respect of the aforesaid, this Court notes that in Sikhism, it is customary for women to don a dupatta or chunni for the purpose of covering their head, while visiting Gurdwaras, which symbolises reverence for sacred spaces. In fact, when inside a Gurdwara, every person is required to cover his or her head. Such practice of wearing a dupatta or chunni is common in Sikhism, but without any formal imposition by their Gurus, signifying the absence of a concept of veiling within the religion. The headgears are worn by Sikh men, and not by Sikh women, barring a few circumstances, however, the petition mentions that Sikh women are “now wearing turbans much like Sikh men '' which is not true. Further, there is no concept of any ‗veil‘ or covering the face in Sikh customs and traditions, which could substantiate petitioner‘s argument of prevalence of pardah system among Sikh women. Christianity, Judaism, Jainism

71. In the petition, only a few passing references have been made that many women belonging to Christianity, Judaism or Jainism are also pardanashin as they wear some form of pardah or veil, mandated by their religion. However, the same is unsubstantiated by any religious text, authentic proof or writing. Islam

72. The petition mentions that there is a difference between hijab and burqa, and burqa is a word that loosely falls under the category of pardah or veil. It is stated that there are two verses in the Qur‘an in which Almighty Allah talks about the issue of decency and hijab, which deal with ‗hijab of eyes‘. Thereafter, it is mentioned that another verse talks about a woman concealing the head and then using the loose ends of the scarf to conceal the neck and the bosom. It is further stated that as per Quran, the Islamic dress code for women does not only consist of a scarf that covers the head, the neck and the bosom; it also includes the overall dress that should be long and loose.

73. Thus, as per petitioner, she is well-within her rights to conduct herself in accordance with the tenets of her religion, including her choice of dress, as protected by Article 25 of the Indian Constitution.

74. In this regard, this Court notes that the issue regarding hijab or burqa being essential religious practices is an issue which is pending adjudication before the Hon'ble Apex Court. Background of the same is that the Three-Judge Bench of Karnataka High Court in case of Resham v. State of Karnataka 2022 SCC OnLine Kar 315 had held that hijab is not an essential religious practice of Islam, and the same would not be covered under Article 25 of the Constitution of India. Thereafter, the Division Bench of Hon'ble Apex Court in an appeal against the said judgment of Karnataka High Court, had delivered a split verdict in case of Aishat Shifa (Hijab Case-2 J.) v. State of Karnataka (2023) 2 SCC 1, which is now pending to be placed before a Three-Judge Bench of the Hon'ble Apex Court for adjudication. However, even though the issue has yet not been decided by the Hon‘ble Apex Court, the petitioner has repeatedly mentioned in the petition that the right to wear a pardah, which is like a burqa/hijab, would be covered under Article 25 of Constitution of India. Be that as it may, since the issue is already sub-judice before the Hon‟ble Apex Court, this Court would not delve deeper into it.

POLICING IN BHARAT: MULTIFACETED DUTIES & SOCIAL CONTEXT

75. Policing encompasses the multifaceted duties carried out by law enforcement agencies to maintain public order, enforce laws, prevent and investigate crimes, and ensure the safety and security of individuals and communities. It involves a range of activities, including patrolling, responding to emergencies, conducting investigations, apprehending suspects, and working collaboratively with the public to address concerns and build trust.

76. In the context of the preamble of the Delhi Police Act, policing is viewed as a fundamental mechanism for upholding justice, safeguarding rights, and promoting harmony within the diverse population of Delhi. It emphasises the need for law enforcement to operate within the framework of democratic principles, respecting the rule of law and protecting the rights and freedoms of all citizens.

77. It is crucial to recognize 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. While respecting cultural sensitivities and religious practices, law enforcement agencies must prioritise the common good and uphold the law without discrimination. Test of Reasonability and Compelling Public Interest

78. The test of reasonability serves as a guiding principle in determining the appropriate response of law enforcement in various situations. For instance, when dealing with individuals from diverse backgrounds, such as during arrests or interactions with suspects, the police must assess the circumstances and make decisions that are proportionate and justifiable. While accommodating reasonable requests, such as allowing suspects to wear basic clothing and ensuring their right to dignity as such is not violated, the police must balance individual rights with the need to maintain public safety and uphold the law.

79. In the discharge of their duties, the investigating agency is required to navigate the delicate balance between upholding individual rights and safeguarding compelling public interests. While individual rights are supreme, they may need to yield to the imperatives of public safety and security when necessary. However, it is essential to underscore that such infringements cannot be arbitrary or disproportionate; they must be grounded in objective criteria and serve a legitimate public interest. Thus, while exercising their powers, the police must adhere to the principle of reasonableness, ensuring that their actions are both necessary and justified within the confines of the law and respect for individual rights. Multi-cultural Land of Bharat & Policing

80. The increasingly muti-cultural nature of Indian society definitely has an impact on policing in Delhi or India. The complaint in the present case is about police officers, about their insensitivity in protecting the pardanashin women and not giving them enough time to wear the pardah as per their religion.

81. The police as law enforcement authority has a vital duty of protecting the community from those who have no respect for law, who are in conflict with law, those who have no respect for rule of law and indulge in criminal behaviour so as to endanger establishment of rule of law in the community. The Police acts as watchmen for the community by preventing crime and bringing criminals to the fold of the criminal justice system. The police have the role of crime control, maintenance of law and order, and also are available 24 hours for a wide range of services to the community.

82. Needless to say, crime prevention and control is the most vital role they play and the general public holds the image of police as those who prevent crime, who detect and apprehend offenders and protect them. Since the police personnel are crime fighters, the policing involves certain rights to them under Delhi Police Act and the Code of Criminal Procedure. While the success of policing depends largely on how the police personnel respond to their duties and to the community members, their treatment of the vulnerable while dealing with crime prevention measures, many a times comes under scrutiny.

WHETHER THE CURRENT LEGAL FRAMEWORK IS SUFFICIENT TO ADDRESS THE ISSUE IN QUESTION?

83. Since all the other prayers were disposed of in this petition, the Court is only dealing with 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. Present Day Legal Framework for Protection of the Dignity of Women During Investigation of a Criminal Case

84. Various substantive and procedural laws in India have been designed to grant women certain privileges and considerations. The provisions pertaining to search and arrest of women, under the Code of Criminal Procedure aims to ensure that dignity of every woman is protected, regardless of them even being an accused. Procedure of Arrest of a Woman

85. Chapter V of Cr.P.C., spanning Sections 41 to 60A, delineates the procedures governing the arrest of individuals. These sections provide comprehensive guidance on the procedure to be followed at the time of arrest. While these provisions bestow considerable authority upon the police for arresting individuals, they also impose reasonable limitations, particularly concerning the arrest of women. Law enforcement agencies are bound to adhere strictly to the stipulations outlined in this Chapter when affecting arrests, regardless of the circumstances.

86. Section 46(4) of Cr.P.C., introduced by the Criminal Amendment Act of 2005 through Section 6, lays down the fundamental procedures governing the arrest of women. It reads as under: ―Save in exceptional circumstances, no women shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made. "

87. According to this provision, the arrest of a woman must be carried out by a female police officer. Moreover, it specifies that, ordinarily, no woman shall be arrested between sunset and sunrise. However, if the offence is serious or necessitates immediate action during this period, the female police officer must obtain permission from the Judicial Magistrate within whose jurisdiction the offence is committed or where the report is to be lodged. Procedure for Search

88. The search of an arrested individual and his residence or dwelling is a crucial aspect of the arrest procedure. Sections 47 and 51 of Cr.P.C. outlines the process for conducting such searches, with specific provisions tailored for women. The search conducted by the authorities executing the arrest can be categorised into two main categories.

(i) Search of Person

89. According to Section 51 of Cr.P.C., when a police officer searches an arrested person, any seized items must be securely stored, and the individual must be provided with a receipt detailing the confiscated items. Section 51 provides as under: ―51. Search of arrested person.—(1) Whenever a person is arrested by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail, and whenever a person is arrested without warrant, or by a private person under a warrant, and cannot legally be admitted to bail, or is unable to furnish bail, the officer making the arrest or, when the arrest is made by a private person, the police officer to whom he makes over the person arrested, may search such person, and place in safe custody all articles, other than necessary wearingapparel, found upon him and where any article is seized from the arrested person, a receipt showing the articles taken in possession by the police officer shall be given to such person. (2) Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency.‖

90. However, the procedure for searching an arrested woman involves considerations of morality. As per Section 51(2) of Cr.P.C., if it becomes necessary to conduct a search on a female, it must be conducted by another female, ensuring utmost decency and respect for the woman‘s dignity.

(ii) Search of Place

91. When a police officer or any other individual executes an arrest or a warrant of arrest, they are empowered to search any premises for the subject of the arrest. The owner of such premises is obligated to grant unrestricted entry to the officer and assist them in conducting the search to the fullest extent possible. Section 47 provides as under: ―47. Search of place entered by person sought to be arrested.—(1) If any person acting under warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place, any person residing in, or being in charge of, such place shall, on demand of such person acting as aforesaid or such police officer, allow him free ingress thereto, and afford all reasonable facilities for a search therein. (2) If ingress to such place cannot be obtained under subsection (1), it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a police officer to enter such place and search therein, and in order to effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his authority and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance: Provided that, if any such place is an apartment in the actual occupancy of a female (not being the persons to be arrested) who, according to custom, does not appear in public, such person or police officer shall, before entering such apartment, give notice to such female that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it. (3) Any police officer or other person authorised to make an arrest may break open any outer or inner door or window of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.‖

92. However, the proviso to Section 47(2) of the Cr.P.C. stipulates that if the police officer or any other individual executing the arrest warrant becomes aware that the premises to be searched is the primary residence of a woman who, as per custom, does not appear in public, they must provide a notice to the woman informing her of her right to withdraw before commencing the search. Whether the Petitioner has made out a case, Necessitating Issuance of any Directions?

93. The central point in the present case essentially is whether this Court can identify any reason to take upon it, the role of an adjudicator to lay down directions to follow a certain protocol by sensitisation of the police force, which in the modern context and in the realm of practicality may not be legitimate.

94. Of course the Courts have to be responsive to any contingencies and how those contingencies and situations affect the community at large, but at the same time, they also have an equal responsibility to consider whether the existing law, procedural, substantive or otherwise, is sufficient to ensure equal and just treatment to all equally placed.

95. The Code of Criminal Procedure provides for necessary safeguards as to how the police personnel are required to exhibit sensitivity towards the women, vide Section 46(4) and Section 60(A) of Cr.P.C. However, while investigating heinous crimes, to put fetters or roadblocks in their way of ensuring swift response to apprehending an accused during search of a place or a person would rather result in the accused absconding or the evidence being destroyed.

96. In such situations, to burden the police, while carrying out investigation of a criminal case or apprehending accused wherein each minute is crucial, lest accused absconds or evidence is destroyed, will not only be impractical but also a dangerous proposition. 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.

97. To give a few examples, this Court frames the following illustrations: Illustrations (a) Ms. ‘X’, a suspected terrorist is apprehended by law enforcement officers, and during the arrest, Ms. 'X' requests additional time to wear traditional clothing, citing religious or cultural reasons. It may not be considered reasonable by the authorities to afford time to Ms. ‘X’ due to the potential security risks involved, as traditional clothing could be potentially used for concealing weapons or explosives, posing a threat to public safety, or the time so provided could also be used by Ms. 'X' to plan and execute an attack on the police officials. (b) Ms. ‘X’, who possesses digital evidence and is apprehended by law enforcement agencies, requests time to wear her religious attire. Granting Ms. ‘X’ additional time in a premises not fully controlled by police officers can result in the destruction or distortion of digital evidence by Ms. ‘X’, which can be destroyed in a matter of seconds or minutes.

(c) Mr. 'Y' is a suspect in a serious crime and law enforcement agencies arrive to conduct an investigation, Ms. 'X', a close relative of Mr. 'Y' present in the same house, requests time to wear religious attire. However, the authorities, mindful of the possibility that granting Ms. 'X' additional time could provide an opportunity for any communication or interference with the investigation, hesitate to fulfil the request. This cautious approach by the authorities may be deemed reasonable given the circumstances of the investigation and the need to preserve its integrity.

98. The fundamental requirement of some cases lies in the secrecy of conducting a raid to apprehend an accused or recover an object, currency, etc., and in case such a mandatory direction is issued, it can be misused to distort or destroy evidence and the very purpose of the raid will be defeated, compromising with the investigation of a case, causing serious prejudice to the investigating agency. In case, a case is based on cyber crime or retrieving or recovering of digital evidence, which can be lost at the click of a button, such mandatory protocol to be followed can be misused by a woman accused or a male accused having a female member at home by projecting that she is a pardanashin woman, though in fact she may not be.

99. While this Court maintains that 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.

100. Any legal restriction in their way of investigation will affect their effectiveness. The police have to ensure execution of law while respecting human dignity and right of a person, and balancing the same with the need for social order and safety of the community. The Courts and the society have to recognize the legitimate authority of the police to implement and execute law while policing, though any excess committed by them in contravention of law will always be open to judicial scrutiny.

101. In case any such additional direction is issued, the police may find themselves not only entrusted with pressure of policing for enforcing law and crime prevention, but they may also be under constant pressure to be more cautious and lose precious time while apprehending an accused, in order to appear to have a sensitive gender and community based approach. Argument regarding Right to Dignity under Article 21 vis-a-vis Pardanashin Women

102. It is the case of petitioner that a woman‘s right to wear pardah is covered under the ambit of right to dignity, which is enshrined under Article 21 of the Constitution, besides Article 25 of the Constitution, which protects one‘s right to practise or profess his or her religion. Accordingly, the directions for sensitization of police officers qua pardanashin women should also be issued since the officers by their conduct violate the right to dignity of women who are pardanashin.

103. As far as this argument is concerned, this Court is of the opinion that the concept of dignity also, as enshrined in Article 21 of the Constitution, extends universally to every citizen, irrespective of gender or any other characteristic. It is a fundamental principle that is based on the inherent worth and value of each individual within society. Article 21 guarantees the protection of life and personal liberty, recognizing that dignity is a fundamental aspect of human existence. The protection under Article 21 is also not contingent upon adherence to any particular cultural or religious practice, including the concept of pardah. Instead, it applies universally to all citizens, regardless of their beliefs or practices.

104. Thus, every human, whether a man or a woman, is entitled to the right to dignity, which is also available even to an accused or a prisoner. Also to ensure that dignity of any woman is not compromised, special safeguards have been provided under law, which have already been discussed in the preceding paragraphs. To this extent, the law is clear and the police officers are bound by it and they must remain aware of the provisions of the Code of Criminal Procedure as well as judicial precedents, which put certain measures in place for upholding the dignity of women, while either arresting or searching any woman or while carrying out the investigation. When the law talks about dignity of „women‟, it means all women, regardless of their religion, faith or custom. The Concept of Judgment Impact

105. The concept of judgment impact has also to remain one of the crucial ingredients and factors while writing a judgment since a mandatory direction to another authority may result into practical difficulties, and instead of helping in administration of justice and ensuring rule of law, may bring results to the contrary.

106. The judgment and the direction which is being sought from this Court in the name of ensuring freedom to practise any religion under Article 25 of Indian Constitution or dignity of women under Article 21 of Indian Constitution has the potential of being misused by a female accused, or a male accused and their female family members. It will also amount to presuming that a woman does not commit crime and cannot be an accused who needs to be searched, arrested or a raid be conducted to apprehend her. This Court cannot pass any such direction.

107. While observing so, this Court holds a view that a judgment adjudicating a crucial question of issuance of directions and sensitization cannot be purely an Academic exercise. Even an academic judgment has to keep in mind as to whether it will invite difficulties in administration of justice, rule of law, and at all times, keep in mind a pragmatic approach so that the judgment does not become a road-block for law enforcement agencies, who may face contempt for non-obedience of the judgments and for fear of that, continue to face difficulties in performing their actual duties. The wide discretion that judges have, should be utilised for improving the interest of the country and the community while balancing the law and the rights of other law enforcement agencies to achieve a balanced merger of both.

DIRECTIVES ISSUED BY COURTS: NEED TO BE JUSTICE DRIVEN AND NOT FAITH DRIVEN

108. Learned counsel for the petitioner had argued that the insensitivity of the police force in general towards the religious sentiments of pardanashin women, who may belong to different religions or faiths, is in the teeth of Article 25 of the Constitution of India which ensures freedom of practising any religion to an individual.

109. Therefore, one of the issues before this Court was as to whether the directions sought from this Court to sensitise the Delhi Police and directing them to follow a protocol in view of the religious scriptures and religious mandate of women of different religions, is called for or not and as to whether in case a protocol is not framed for sensitization of police officers, will it be in violation of Article 25 of the Constitution of India.

110. In paragraph nos. 56 to 70, this Court has rejected the argument of learned counsel for the petitioner that practise of pardah is commonly followed by Hindu or Sikh women, and that there is no such mandate to wear a veil or pardah in these religions.

111. As far as the practice of wearing hijab or burqa in Islam is concerned, this Court has already observed in paragraph no. 74 that whether such practises fall under the essential religious practice, so as to be covered within the ambit of Article 25 of Constitution of India, is an issue which is pending before the Hon‘ble Apex Court for adjudication, and there is nothing at this stage to prove that wearing a pardah, or burqa as called in Islam, would be an essential religious practice. Article 25 of the Constitution has arisen for the religions and not from the religions

112. Article 25 of the Constitution has arisen for the religions and not from the religions. While it enshrines the fundamental right to freedom of religion, it also delineates that this freedom is not absolute; rather, it is subject to considerations of public order, health, and morality.

113. It is noted that the preservation of public order encompasses the broader need of upholding law and order across society, a duty in which investigating agencies play a pivotal role. Therefore, while individuals have the constitutional right to practise their religion, this right is circumscribed by the need to maintain public order and ensure the efficacy of law enforcement efforts.

114. Thus, while even criminals have certain fundamental rights, these cannot serve as barriers to their arrest or prosecution, except those rights which have been provided under law in this regard; rather, their rights have to yield to the interests of the state and public safety. It is the primary duty of both the Courts and the police to protect the nation and its communities, making it inappropriate to issue directives based on faith. Such actions exceed the powers granted to the courts by the Constitution and undermine the rule of law.

115. 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. 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.

116. In this Court‟s view, the directions issued by any Court must be rooted in legal principles, rather than influenced by religious considerations. Judgments should remain impartial and devoid of any religious bias, recognizing that criminality transcends any specific religious affiliation; it concerns the welfare of society as a whole. A JUDGE’S PURE FIDELITY TO THE APPLICATION OF LAW IN CONSONANCE WITH THE REQUIREMENT OF MODERN BHARAT

117. A judge has to meet the critical requirement of its pure fidelity to the application of law for the larger community good and upholding the fundamental rights of every citizen. The judicial responsibility and the judicial obligation of living up to its fidelity to law also has to pass the test of practical standpoint of view as to what the Court‘s directions would result in.

118. While at times, a judge may be tempted to find legalistic solution to a problem placed before it, however, the temptation has to be resisted since the directions sought may not only be impractical but also instead of successfully mitigating the alleged perceived injustice to some in a situation, may in fact give rise to unjustified fetters on the power to investigate by the investigating agency. The adjudicated law has to pass the test of being justified on the touchstone of procedural and substantive grounds. The Social Face of Law: Judges’ Role in Shaping Legal & Social Discourse

119. Undoubtedly, the judges are trained in law and schooled in precedents, however, now, law has a social face too. In the changing role of judges through adjudication of cases in writ jurisdiction, one finds greater involvement with social policy of the Court and judges. The judges‘ rulings on social questions inarguably affect a large number of members of the community. However, such judgments on social policy cannot be segregated or be opposed to the legislations and the State policies which involve the safety and security of the country or the community at large.

120. What distinguishes judges and their judgments is their impartiality. The nature of the issues posed before a judge for adjudication, and the expectation of a petitioner or the public at large, that those issues will be adjudicated fairly, represent one concept, and the need for judges to be sensitive towards a broader range of social concerns is another expectation.

121. Though certain legislations can be gender-specific, the judges, the judgments and the orders are always Genderless. The judgments are not only the thoughts or perceptions of a judge and are not limited to legal acumen of a judge alone, but also the work carried out through the legal acumen of the lawyers/advocates assisting the Court.

WHILE CONCLUDING: SOMETIMES EVEN AN ISOLATED WORD SPEAKS A STORY

122. The word pardanashin conjures an image. When this Court uses the word pardanashin, it conjures the picture of a woman who is wearing a pardah and perceived as powerless and one who does not understand the worldly affairs, who needs someone to look after her legal, personal and other affairs as understood and defined in judicial precedents in context of capacity to enter into a contract. Whatever a Court of law writes, it has to remain cautious that it leaves an indelible mark and the philosophy flowing from a judgment is read by many to follow. This Court‘s responsibility would be many-fold when it is forced to enter the arena of ancient scriptures and interpret it and give a meaning as deemed fit by the petitioner or perceived by the petitioner in the modern times.

123. Therefore, in this Court‘s view, the word Pardanashin by its mere mention conjures an image which is not confined to a word or a single picture itself but the entire journey of women in India which they have covered from being empowered, being free of burden of a veil, to the indescribable burden of a weightless piece of cloth called veil which was full of challenges, troubles and social struggles.

124. This Court has observed in the preceding paragraphs that the concept of Pardanashin women was not in the context of any religious observance, but purely in the legal context of contracts entered into by women, who were not well conversant with the worldly issues and remained secluded from the world at large. As observed already, the judicial precedents, including the one wherein the word Pardanashin was used as early as in the year 1925 in the judgment of Farid-Un-Nisa v. Mukhtar Ahmad (supra), refers to the meaning of Pardanashin woman in the context of entering into a contract and not in terms of her religious beliefs.

125. While considering a question as to whether the concept of pardanashin woman, as explained by the petitioner, is relevant in modern times, this Court would only like to express that much water has flown down the empowerment path of woman in India wherein by way of their fundamental rights as well as rights available to them under other legislations, special provisions have been made with regard to empowerment of women, not on papers alone, but in reality ensuring that every girl and every woman is educated; those who are young, by being provided with schooling, and those who have not had the opportunity to be educated, there being adult education centres / Praudh Siksha Kendras.

126. As far the context of present case is concerned, instead of using the word pardanashin, this Court would rather want to term it as women who observe a particular dress code in accordance with their beliefs and faith, since the word pardanashin in the past has been used in context of women who were not empowered nor were considered well conversant with worldly affairs and were thought to be incapable of looking after themselves on their own due to them living in state of seclusion.

127. Sometimes an isolated word speaks a story and sometimes even a story in itself is not more than a simple word as the words used by a Judge in a judgment are forever. The moment this Court terms women as Pardanashin due to their gender in general, it will do more harm to them than empower or add value to their already existing right to dignity.

128. Therefore, in the background of the above discussion, and this Court having taken note of the well-researched report submitted by the learned Amicus Curiae as well, holds and sums up the findings of this Court, as under:

1. The 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.

2. 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.

3. Since the learned counsel for petitioner had taken this Court through various religious scriptures to show prevalence of practise of pardah among Hindus, Sikhs, etc., the discussion made by this Court in paragraph nos. 56 to 70, inter alia 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 the history will speak for itself regarding its causes when Hindu women were burdened with the weight of a pardah, which though weight-less, carried unbearable weight for a woman who wears it, which cannot be explained in words. Thus, to sum up, in Hindus there is no mandatory provision to wear veil or ghoonghat, or Hindu women being pardanashin by virtue of their religion. Same is the scenario in case of Sikh women. In India, however, everyone can make their individual choices.

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

5. The fundamental rights, including those enshrined under Article 25 of the Constitution have to surrender in favour of the safety of the country and the community irrespective of the gender of the accused, and in case of Article 25, the rights are subject to reasonable restrictions such as maintaining public order.

6. 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.

129. This Court has also taken note of the fact that while seeking directions from this Court regarding sensitization of the police officials apropos the special procedure which should be followed in cases of women who wear pardah, the petitioner has also highlighted certain aspects which may be considered while sensitising the police officials. Some of these aspects, highlighted in the petition, are sensitisation qua already available legal safeguards in relation to the procedure which the police authorities need to follow in case of arrest of a person and search of a place, and training initiatives to the police officers in regards to the same. This Court, while considering the same, has already reiterated the procedure for arrest and search of place in the preceding paragraphs, which finds its mention in the statutory laws and has also been laid down by the Courts in a plethora of judgments. 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.

130. The Courts are neither historians nor they can take the role of historians, however, if by way of a petition and its contents, the history or the religious texts are projected in incorrect perspective, the Courts have to answer the same by referring to the same scriptures or commentaries thereon on case to case basis without interpolating their own personal faith, morality, being judgmental about choices made by other woman, solely resting their findings on the true fidelity of the judge to law and the constitution. Therefore, there also arose a need to discuss the concept of pardah in the religions mentioned by the petitioner in the petition, at the same time, clarifying that religion and dharma are different concepts, and thereby dispeling and rejecting the contention that wearing a veil by a woman makes her pardanashin and that different religions (as per petitioner) prescribed wearing of veil as a mandatory practise.

131. Why this Court felt the need to delve deep into the concept of religion, dharma and religious practices, in context of laying down any directions and examining as to whether non-issuance of directions will amount to continuing with violation of Article 25 of the Constitution of India qua certain segment of women, was due to the fact that such judgments and directions as well as discussions therein are often prone to misinterpretation and misrepresentation, which at times, may do more harm when passed in context of religions scriptures than good, and therefore, a detailed judgment in this case was passed.

132. Needless to say, the judges communicate with the public and the community at large through their judgments, conveying a social message and direction wherever required. Thus, given the critical impact of judgments on large segments of the community, they must be clear and unambiguous, leaving no room for misinterpretation to the detriment or disadvantage of any gender or community member. Thus, the judgment has to speak and be complete in itself.

BEFORE PARTING WITH THE CASE: SYNERGY BETWEEN BAR & BENCH

133. In many cases, the lawyers become the voice of the society at large which is presented before the Courts through a petition by an advocate and thereafter, given a meaning for the community by the judge, as judges themselves are products of the society. In cases where lawyers bring forward social causes and provide the judiciary with an opportunity to intervene, the resulting judgments often transcend individual interests. Instead, they serve as catalysts for societal transformation, addressing systemic injustices and fostering greater inclusivity and equality.

134. These judgments, which are not solely focused on individual grievances but rather on broader societal issues, exemplify the power of the judiciary to effect meaningful change, however at the same time, not forgetting the contribution made by the lawyers working and sitting in the office or appearing in the Court through leveraging the legal system to advocate for social causes. It has to be mentioned and stressed that lawyers help create opportunities for judicial intervention that can lead to landmark rulings with far-reaching implications.

135. Whenever a petitioner seeks any direction, or relief based on faith/religion, it becomes critical and imperative that the hallmark of justice, which is being unbiased, treating everyone before it fairly, equally, irrespective of their caste, creed, gender, financial or other status or their faith or religion and protecting their fundamental rights, should be reflected in the judgment.

136. In this Court's opinion, the personal perceptions of a judge or her faith or her opinions in life should never become the ideological backdrop of the judgments, she writes.

137. This Court is also of the opinion that it is part of duty and sociological service by a Court of law to the community and country that it does not shy away from the pressing need of adjudicating any issue raised before it, howsoever contentious or sensitive, concerning the justice system without fear of being trolled, criticised, mocked and taken upon it as her obligation in the role of a judge.

138. The present case is one example of the above.

139. Thus, this Court expresses deep appreciation for the learned counsel who appeared on behalf of petitioner Sh. M. Sufian Siddiqui, for bringing this case before this Court, as well as the learned Amicus Curiae Smt. Manisha Agrawal Narain, who through her well-researched and elaborate report, shed light on various issues relevant in the present case.

140. In above terms, the present petition stands disposed of.

141. Copy of this judgment be forwarded to Director (Academics), Delhi Police Academy, for the purpose of training and sensitisation of all concerned.

142. The judgment be uploaded on the website forthwith.

SWARANA KANTA SHARMA, J MARCH 1, 2024