By Adv. R. S. Agrawal 

 

 

 

 

THROUGH the judgement of the case – Reshma v. The Commissioner of Police, delivered on March 1, 2024, Justice Swarana Kanta Sharma has quite clearly stated at the Delhi High Court that the Court cannot issue faith based directions to the Police officers, who carry out investigation in criminal cases , lest it affects their power to investigate as provided to them by law. The challenge before the Court, through this criminal writ petition was to adjudicate and return a finding as to whether the concept of Pardanashin woman in the holy scriptures of various faiths cited before the Court indeed means and refers to women who by mere virtue of gender need to be extended special treatment, as according to the petitioner’s counsel, even today many women are pardanashin out of their own choice or due to them following religious practices. It was prayed on behalf of the petitioner that guidelines be issued in the background of religious scriptures and Articles 21 and 25 of the Constitution of India, however, giving a new meaning , a new philosophy and evolving new jurisprudence based on old scriptures to suit the present day requirements of the community.

 

The HC noted during writing the judgement that the writ jurisdiction and adjudication of the issues therein do not stop springing surprises and challenges which become the harbinger of churning out philosophy and jurisprudence on a subject which involves referring to old scriptures interpreting it in context of a particular case, yet confining itself within constitutional morality and framework of criminal jurisprudence. The present case also raised an issue which initially confined itself to a particular person. However, in the final hearing, the person oriented prayers were satisfied and withdrawn on behalf of the petitioner but insistence was laid on adjudication of an issue brought forth by the present case for the larger social interest, thus, bringing to the fore the power of court to serve the community better by bringing about changes in the administration of criminal justice by issuance of directions wherever called for qua the concerned authorities.

 

Through this petition, the HC was approached to adjudicate a crucial question of issuance of directions and sensitisation cannot be purely an Academic exercise. Even while delivering an academic judgement, the Court has to keep in mind as to whether the judgement will invite difficulties in administration of justice, rule of law and at all times, keep in mind a pragmatic approach so that the judgement does not become a road- block for law enforcement agencies, who may face contempt for non-obedience of the judgements 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. The HC has underlined that its directives should be justice driven and not faith driven. The HC has indicated that instead of using the word ‘pardanashin’, it would rather want to describe it as women who observe a particular dress code in accordance with their belief 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 they being in state of seclusion.

 

According to the HC, sometimes an isolated word speaks a story and sometimes even an story in itself is not more than a simple word as the words used by a Judge in a judgement 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. In the background of the discussion and after noticing the well-researched report submitted by the Amicus Curiae as well, the HC held and summed up its findings 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’ woman 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. According to the HC, neither the Hindu women practiced any ‘pardah’ nor it was mandatory for them.

 

They were always 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 weightless, 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 the 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 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.

 

The High Court has stated that 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. No other directions including faith based directives, are called for in this regard. The HC has pointed out that there is a need to discuss the concept of ‘pardah’ in the religions mentioned in the petition. At the same time, the Court has clarified that religion and dharma are different concepts and thereby rejected 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 practice. The judgement has to speak and be complete in itself. The High Court has disposed of the petition in the above terms with the direction that copy of this judgement be forwarded to the Director (Academies) for the purpose of training and sensitisation to all concerned.