Last month, the European Court of Justice delivered its verdict in the burqa ban case. The court upheld the French law imposing a blanket prohibition on wearing veils that conceal the face in public places. The ban was challenged by a French citizen, a young woman of Pakistani origin, who complained that the prohibition offended her freedom of religion, her freedom of expression and the guarantee of privacy under the European Convention on Human Rights. France defended its position with the assertion that the practice of covering the face in public was at odds with the values of the French republic expressed in the maxim, “liberty, equality and fraternity”. The practice of wearing a veil, asserted France, was incompatible with secularism, symbolic of subservience, and constituted infringement of liberty, dignity and gender equality. Further, France argued that the face-covering burqa represented a denial of fraternity, constituted a negation of contact with others, violating the French principle of “vivre ensemble” or living together.
The argument that impressed the European Court was that the burqa, which entailed concealment of the identity of the wearer from the rest of society, raised a barrier against fellow citizens, offending their “right to live in a space of socialisation which makes living together easier”. The veil restricts social access, a fundamental facet of the right to fraternise in a multicultural democratic society. The court found that religious freedom does not always guarantee the right to behave in the public sphere in a manner that is dictated by one’s religion or beliefs. It ruled that in democratic societies where several religions co-exist, it may be necessary to place limitations on the freedom to manifest one’s religion in order to reconcile the interest of others.
It may be worth examining how this issue would be treated in India were it ever to arise. Traditionally, our society recognised purdah nashin women and, even today, archaic provisions exist to protect legal arrangements executed on behalf of such women. Unlike in Europe, the veil worn by Muslim and some non-Muslim women is not culturally alien in India. Yet, is there a protected right to anonymity in the modern state?
Would the right to wear a veil be protected by the freedom of religion guaranteed under Article 25 of our Constitution? Article 25 protects only those practices that are absolutely essential or integral to religion. Experts on Islamic jurisprudence have opined that there is no religious compulsion in Islam for a woman to cover her face. If so, the right to wear a face-concealing burqa is unlikely to be regarded as an essential part of religious practice, which qualifies for protection under Article 25.
Would protection be available under freedom continued…