Constitutional question of 'choice': European Experience

  • Kanu Agarwal
  • 02:00 PM, 09 Feb 2022

Introduction

The debate rising from a coastal town of Udupi in Karnataka, brings to the fore an interesting comparative constitutional law debate. Without going in to the sociological details of the issue of hijab or the strength of the religious sanction backing it, it is undeniable that it does, in fact represent a societal imposition of modesty culture on a womans’ body. The renowned professor and author Asra Nomani, in the New York Times [1] calls it something that “sexually objectifies women as vessels for hono[u]r and temptation” and highlights that hijab represents purity culture which “covers, segregates, subordinates, silences, jails and kills women and girls around the world”.

Choosing not to wear the hijab has been criminalised in various countries across the world where the almost non-existent reform movement advocates against such laws. The basis of this is that a hijab may not have any direct religious sanction. The Udupi issue has however, reignited the debate on religious freedoms and the extent of state interventions.

While a significant body of local jurisprudence may not exist on the issue, it is perhaps the experience of Europe which provides an insight. 21st century Europe’s social milieu is complex (although not as complex as India). However, though it was largely a religiously homogenous but linguistically diverse society, it has evolved into a social conglomeration of numerous cultures & sub-cultures. With a rapidly changing demography and considering the recent trends in the expansion of political patronage to “multiculturalism”, Europe has become a melting pot for religious skirmishes within the nation States.

The European Court and its standards

The European Court of Human Rights [hereinafter referred to as the “European Court”], which has it's seat in Strasbourg, France, is tasked with compliance by member-State to the European Convention on the Protection of Human Rights and Fundamental Freedoms [hereinafter referred to as “ECHR”]. The European Court in that manner provides an additional forum to a litigant, to enforce rights under the ECHR against the nation-State which is a member of the Convention. The ECHR entered into force in 1950 and is the main treaty which sets out civil and political rights, freedoms that European States agree to ensure for people living within their jurisdiction. Under this European regime, freedom of religion is a “convention right” under the European Convention on Human Rights contained in Article 9 [2]. Article 9 provides that everyone would have the right to freedom of thought, conscience and religion, including the freedom to change his religion. Article 9 further provides that right can be enjoyed alone or in a community and in both public and private spheres of life. Article 9 separately provides for the right to manifest one’s religion or belief in worship, teaching, practice and observance, however, it would be subject to limitations prescribed by law which are :

- necessary in a democratic society in the interests of public safety, or - for the protection of public order, health or morals, or

- for the protection of the rights and freedoms of others.

The European Court of Human Rights has developed a four-fold test to tackle the questions arising before the Court in relation to religious freedoms. It is as follows :

  • At first the Court determines whether there has been an “alleged breach” of the right under Article 9 of the ECHR dehors the limitations imposed on the same;
  • If the right is located, the Court secondly determines if there has been a “limitation” or an “interference” by the State in the right determined above;
  • If the interference is also accepted, the Court thirdly determines if the measure taken by the State is “prescribed by law”;
  • If the measure of the state is one which is prescribed by law, the Court determines if the said measure is for the furtherance of a “legitimate aim”. “Legitimate aim” is determined on the basis of the scope and the factors on the basis of which the State can provide a law for interference”
  • Lastly, even if the interference is prescribed by law and is for a “legitimate aim”, the Court tests it on a very high proportionality analysis as to whether it is “necessary in a democratic society”.

The Swiss compulsory co-ed swimming lessons

In a case from Switzerland, the European Court [Osmanoğlu et Kocabaş v. Switzerland [3]] was tasked with dealing with a complaint lodged by a couple of Muslim parents who wanted their under-age daughters to be exempted from compulsory mixed swimming lessons in a Swiss State school. It was argued that although the Koran laid down the precept that the female body was to be covered only from puberty, the parents insisted that their faith instructed them to prepare their daughters for the precepts that would be applied to them from puberty onwards. The Court held that the protection under Article 9 includes traditional practices which may objectively not be a part of the “core” precepts of an individual religion but which are heavily inspired by that religion and have deep cultural roots. Therefore, on the jurisdictional question, the Court held that such claim was a part of the right under Article 9. It is however, it is the next part of the judgment, regarding the proportionality enquiry qua the legitimate interests of the State which is critical for the present purpose. On the said question, the European Court held that the said curtailment of the right under Article 9 was prescribed as per law and for the furtherance of a legitimate aim.

The European Court held that swimming formed part of the compulsory gymnastics and sports classes and one could be fined of up to CHF 1,000 at the request of the school authorities in the event of repeated breaches by parents of such obligations. The most noteworthy part of the opinion was that the European Court accepted that compulsory mixed swimming lessons was a measure aimed at the integration of foreign children from different cultures and religions, which was a legitimate State aim. Further, such measures were required for the smooth functioning of the education system, compliance with compulsory schooling and equality between the sexes at school level, which also was a legitimate state aim.

In particular, the European Court noted that measure was intended to protect pupils from any form of social exclusion and hence, the refusal to exempt the daughters from the compulsory swimming lessons pursued legitimate aims within the meaning of Article 9 of the Convention and was hence, approved by the European Court. Critically, the European court has drawn a distinction between the scope of religious rights in Article 9 in the nature of the sphere they are sought to be exercised in. Simply put, the right to religious prayer may be a human right, but claiming such right on public roads, would be liable to treated with adequate interference from the State in legitimate state interest.

The French ban on face veil in public places

In another, far more controversial case, concerning public display of religion, the European Court was dealing with Law no. 2010‑1192 of 11 October 2010 from France, which prohibited for anyone to conceal their face in public places. In in S.A.S. v. France [4], the European Court was tasked with a highly polarising social issue which concerns the alleged choice of the woman on one hand and the internal religious normalisation of oppression through upbringing and social coercion. A French law prohibited any person from concealing their face in public after following a lengthy period of consideration and debate. In 2009, a parliamentary commission was established by the President of the National Assembly to consider the wearing of the full-face veil on French territory which reported that the practice was a recent phenomenon which was not required by religion but arose from radicalisation and extremism. The applicant in this case was a French national claiming to be a devout Muslim. She claimed that wearing the niqab and burqa was required according to her religious faith, culture and personal convictions. The applicant believed that she ought to wear the niqab at certain times in order to express her religious, personal and cultural faith. It was argued that interference was prescribed by law, but it did not pursue a legitimate aim. Further, it was argued that a blanket ban rather than targeted at safety concerns in high risk locations fell foul of proportionality. She argued that the State's position that the ban was necessary to ensure respect for life in French society, which required people to expose their faces, did not take into account cultural differences or that visual communication was not the only form of communication. It was claimed that France’s justification that the measure had the aim of ensuring respect for human dignity was based on stereotypical and chauvinistic assumptions ignoring that Muslim women often wear the veil voluntarily and without any wish to proselytise. It was also argued that such a law was not necessary in a democratic society as the ban punished the women it was meant to protect by imposing criminal sanctions on them.

The French government conceded that the ban could be seen as a limitation on the freedom to manifest one's religion or belief under article 9 of the Convention, however, stated that the limitation pursued legitimate aims and was necessary in a democratic society to meet those aims. The French government argued that the ban aimed to protect public safety by making it possible to identify persons, which prevented danger to person and property and combatted identity fraud. The French government argued that it also aimed to protect the rights and freedoms of others by ensuring "respect for the minimum set of values of an open and democratic society". The French government further submitted that the face plays the most significant role in interaction between people, while concealing one's face in public breaks social ties and expresses a refusal of the principle of "living together". The French government argued that requiring women to cover their face in public solely because they are women denies them individuality and restricts their expression of individuality to the family or female only spheres. The French government argued that the wearing of the full-face veil affronted human dignity as it resulted in women being "effaced" in public which was necessarily dehumanising whether it was voluntary or not and therefore was not consistent with human dignity. The French government claimed that the law was both necessary and proportionate as it was limited to concealment of the face only and not the wearing of other religious clothing. The French government argued that to restrict sanctions only to those who coerced women to wear the veil would not prevent a large number of those cases were women felt unable to report coercion. The French government argued that the European Court has always allowed states a wide margin of appreciation in the balancing of competing public and private interests or where a private interest was in conflict with other Convention rights. The French government also pointed out that ban only concerned public places and did not affect the women's physical integrity or privacy.

The intervening Belgian government discussed the implementation of the Belgian law prohibiting any person from concealing his or her face in public and stated that what was acceptable clothing was decided by social consensus and those who concealed their face indicated that they did not want to participate in society. The Belgian government pointed out that wearing clothing concealing the face undermined the idea of living together. The Belgian government also stated that to allege that such a law has a detrimental effect on women as they were forced to stay at home was a result of their own choice [or unreasonable internal societal pressures] and not because of a constraint imposed by the ban.

Further, four intervening NGOs and one university argued against the law : Amnesty International, ARTICLE 19, the Human Rights Centre of Ghent University, Liberty and the Open Society Justice Initiative. All five noted that the ban was discriminatory and would have a detrimental effect on the women that it aimed to protect by causing them to remain in their homes. Amnesty International noted that assuming women were coerced into wearing the veil was gender and religion based stereotyping and that a more nuanced approach was needed to end discrimination. The Human Rights Centre of Ghent University and the Open Society Justice Initiative referred to studies noting that this assumption was simply incorrect. According to Liberty, the controversy around whether wearing the veil was demeaning and patriarchal or a symbol of faith was not solved by causing women to stay at home to avoid criminal sanction. ARTICLE 19 concluded that international standards did not support a blanket prohibition on covering the face in public. It was noted by the Human Rights Centre that discussion around the ban had targeted women wearing the veil, which created Islamophobia and reinforced negative stereotypes. Liberty concluded that the ban itself was likely to encourage Islamophobia. The Open Society Justice Initiative produced a report in September 2013 which noted that women wearing the veil felt their personal safety had declined and had experienced increased harassment and assaults from members of the public following the implementation of the ban. It noted that the consensus of European states was against blanket bans on wearing the veil and that blanket bans were disproportionate where less intrusive means were available.

The European Court decided that, in adopting the law, the French government had remained within the restrictions on Article 9(1) which are permitted by Article 9(2). The European Court accepted two legitimate aims on the part of the state as falling within the scope of Article 9(2) in principle: (i) the protection of public safety (indicated by the reference to this aim in the explanatory memorandum which accompanied the bill); and (ii) the protection of the rights and freedom of others. The latter was found to be present on the basis that an aim of "the respect for the minimum requirements of life in society" - or everyone "living together" - could, under certain circumstances, be linked with the legitimate aim of the protection of the rights and freedoms of others. The Court accepted that, "the barrier raised against others by a veil concealing the face is perceived by the respondent... as breaching the right of others to live in a space of socialisation which makes living together easier".

The European Court critically accepted that the state may find it essential - according to the requirements of "living together" in French society - to give particular weight to interaction between individuals and "may consider this to be adversely affected" by people concealing their faces in public. The European Court noted that the government was seeking to protect interaction between individuals which it saw as fundamental to pluralism, tolerance and broadmindedness and in those circumstances the Court had a duty of restraint and the state was to be given a wide margin of appreciation.

Conclusions

While parallels can be drawn from the said cases, the issue would depend upon what extent of the latitude is granted to the States in pursuing legitimate aims of reform. The Indian Supreme Court has often approved and advocated reform within the majority communities, however failed to apply the same standard to other minority communities. A comparative analysis of the Dawoodi Bohra excommunication case as opposed to the Devaru Saraswath Brahmin Temple case, brings it to the fore. The Indian State has also been mostly lopsided in its approach for reform as on one hand it shows a keen interest to manage Hindu Temples and reform Hindu personal laws, it does not show the same keenness for other communities. 

The question, on a constitutional plane, boils down to competing claims between the Government’s mandate for reform and the extent of rights of free will or choice in public places. However, ignoring the mandate for reform and the inherent limitation on choice in public places, and rendering hijab as a mere matter of choice, has serious consequences. To assert that a practice, which is enforced on a particular gender through community pressures at various levels - internal familial level [from parents to children], group cluster level [from other families/groups to the parents of a family] and organized community level, where failure to adhere to such practices and norms results in serious social and religious ostracizing, is “free choice”, is to deny the cherished right of evolution and reform to the community. One may also not forget that in close knit minority communities, all such social and religious norms are internally far more enforceable than other nuclear urban communities.

Choice, by itself, entails the element of the person making it, aware of the experience of not making it. It may also be considered that once such practices are inculcated and enforced from a very young age at every level, it may not always remain a matter of choice. An Indian baniya, raised as a vegetarian at home, cannot be called be a vegetarian “by choice” despite the fact that leaving such vegetarianism may entail far lesser consequences than the issue at hand. Therefore, to merely allege that such practices are a matter choice, is to miss the forest for the trees.


[2] Article 9 reads as : “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

[3] Application no. 29086/12

[4] Application no. 43835/11

 

[Views expressed are personal: The Author, Kanu Agarwal is a practicing lawyer at the Supreme Court of India]