Authored by Shreya Valiramani
The Strip Search. Yes, we’ve all heard about it from people, newspapers and scarily enough, in our own college. Headlines that read; ‘School girls in Punjab strip searched’, have increased awareness about such instances, but mostly our knowledge is limited to isolated circumstances and consequences.. How many of us really do know if there is a law on strip searches? And if there is, then what is the punishment for it? Have the courts in the country ruled or set any guidelines for the same? Can one refuse to the search being conducted on their person? Are there any necessary procedures to be fulfilled before a strip search is conducted? For all of you,those who don’t know, I’m going to answer all these questions here.
The Strip Search. Yes, we’ve all heard about it from people, newspapers and scarily enough, in our own college. Headlines that read; ‘School girls in Punjab strip searched’, have increased awareness about such instances, but mostly our knowledge is limited to isolated circumstances and consequences.. How many of us really do know if there is a law on strip searches? And if there is, then what is the punishment for it? Have the courts in the country ruled or set any guidelines for the same? Can one refuse to the search being conducted on their person? Are there any necessary procedures to be fulfilled before a strip search is conducted? For all of you,those who don’t know, I’m going to answer all these questions here.
The Law
The simple answer is that there is no national legislation that permits strip searches. At best, there are local police laws that are constrained to the states they are enacted in. The Code of Criminal Procedure (hereinafter CrPC) always tries to protect against the abuse of police powers and lays down strict guidelines as to what the police can and cannot do when searching a person’s body.
Section 51(1) and (2) of the CrPC lays down the procedure for the search of an arrested person. It says that “the police may search an arrested person, and place in safe custody all articles, other, than necessary wearing apparel” while 51(2) says that “Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency”.
Section 100(3) of the act talks about general provisions related to search laying down the following “Where any person is in or about such place(closed place to allow search) is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman,the search shall be made by another woman with strict regard to decency”.
Thus the, CrPC, entails the ambit of search related to arrest. It says that all articles can be taken into custody other than necessary apparel which means the clothes that a person is not comfortable in taking off. For example, a woman would not find removing her dupatta uncomfortable but at the same time, she would hesitate in removing her top.The line where what is necessary apparel and what not borders on what is necessary enough for a person that they cannot take it off. In effect, a direction to remove one’s clothes that are necessary for one, while facilitating search is illegal according to Section51(1) while a strip search of a woman can only be conducted by a female officer with careful measures of maintaining decency. The law hence lays down these guidelines for any kind of search that is conducted during arrest including strip search also in its ambit.
Real Life
Moving on from the technical interpretations of the law, what have real-life courts said about strip searching? A key guideline deciding whether a particular search conducted on someone’s person can be called strip search or not was laid down in the case of Bherulal Kumawat wherein it was decided that
“the provision regarding search shall not be attracted if articles searched are not found on person of accused” What does this mean?
It means that if on a suspicion the police authorities conduct a strip search and do not find anything objectionable on that person, then the search so conducted shall not be able to be justified under the provision regarding search and hence the strip search shall be deemed to be illegal!
What can you do if you are strip searched?
Unfortunately, not much. There is no legislation in the country that provides a punishment for an illegal or unwarranted strip search but a person wrongfully strip searched can file a petition in the court for a violation of their right to privacy that is within the ambit of Article 21 of the Constitution. A strip search is an intrusion of one’s privacy and is unconstitutional by all means.
So are universities and other private institutions violating your fundamental rights if they strip search you? Probably not. If a private organisation permits strip searches in its bye-laws, and you agree to abide by those bye-laws, there isn’t much you can do. What you can do is protest against such bye-laws, especially given the fact that almost nothing at private institutions warrants this demeaning process. It’s one thing to mandate a strip search where the lives of others are at risks, such as airports, army bases, or prisons. It’s quite another thing to demean ordinary citizens who are going about everyday business with this procedure.
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Sources:
1. Bhatnagar, Gaurav Vivek, School girls in Punjab Strip Searched, The Hindu, January 11, 2015.
2. Bherulal Kumawat vs State of Gujarat, 1998GLH(1)442
Sources:
1. Bhatnagar, Gaurav Vivek, School girls in Punjab Strip Searched, The Hindu, January 11, 2015.
2. Bherulal Kumawat vs State of Gujarat, 1998GLH(1)442
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