To Ban or Not to Ban: How Head and Face Coverings are Treated under UN Human Rights Treaties

Introduction

The verdict in Resham v. State of Karnataka has brought the focus back to controversies surrounding the hijab. In a much-criticised judgement, the Karnataka High Court allowed the banning of the hijab in schools and colleges as part of the prescribed uniform. This conclusion was based on the finding that the wearing of hijab is not an ‘essential religious practice’, and hence, not protected under Article 25 of the Constitution of India, 1950. Although it never framed the question in terms of gender equality or made any finding to that end, the Court, nonetheless, alluded to the hijab being an undesirable religious-patriarchal practice.

The Court invoked the Universal Declaration of Human Rights (UDHR), the Convention on the Elimination of all Kinds of Discrimination against Women (CEDAW), the International Covenant on Civil and Political Rights (ICCPR), and United Nations Convention on Rights of the Child (UNCRC) to garner support for its decision. Without even a superficial analysis of the jurisprudence surrounding burqa/hijab/niqab bans under these Conventions, the Court incorrectly assumed that such bans in educational institutions were in furtherance of India’s international legal mandate to “emancipate women from pernicious discrimination in all its forms and means”.

Given this context, it is useful to elaborate on how bans on burqa/hijab have been dealt with in international human rights law. This probing is relevant for at least three reasons. First, to correct the Court’s conclusion that the banning of hijab in schools and colleges is in furtherance of gender equality obligations under UN human rights conventions. The practice of wearing the Islamic veil has long been criticised for being oppressive against women. However, this view has undergone significant change as Muslim women across the world are increasingly asserting that wearing the veil is an expression of their freedom of choice and bodily autonomy in practising their religious beliefs.  Second, as the right to religion is not just a constitutional right, but also an internationally recognised human right under Article 18 of ICCPR, it is imperative to understand India’s human rights obligations therein. This is particularly relevant since India has signed and ratified several human rights treaties, including the International Covenant on Civil and Political Rights, International Covenant of Economic, Social and Cultural Rights and Convention on the Elimination of all kinds of Discrimination Against Women, and consequently is legally obligated to implement their provisions in its domestic jurisdiction. Third, there is growing jurisprudence on the international adjudication of such bans, which cannot be ignored in their domestic adjudication.

Face and head covering under the ICCPR

As I have shown elsewhere, the right to wear a head or face covering is protected under UN human rights jurisprudence, specifically under Article 18 of the ICCPR. This position has been elaborated on by the UN Human Rights Committee’s (UNHRC or Committee) General Comment No. 22 (1993), which interpreted the Article to “include not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or headcoverings”. Since then, the Committee has consistently applied this interpretation while deciding on individual complaints, and the position has also been reiterated by the Special Rapporteur to the Right to Religion.

One of the first cases of hijab ban to come before the UNHRC was in the context of Uzbekistan in Raihon Hudoyberganova v. Uzbekistan. In this case, the Tashkent State Institute for Eastern Languages prohibited the wearing of religious clothing within the Institute. The complainant, who refused to remove her hijab and was excluded from the Institute, approached the UNHRC on the grounds that her right to religion under the ICCPR was being violated. While the Committee acknowledged that reasonable restrictions on the right to religion were permitted, it nonetheless found the Institute’s action to be in violation of Article 18(2) of the Convention, as neither party had shown what sort of attire the complainant wore, and the State party could not prove that its action was a reasonable restriction.

Subsequently, in its most authoritative decisions on such bans, the UNHRC decided on the French law banning the wearing of “any article of clothing intended to conceal the face” in a “public place” in two landmark cases in 2018: Sonia Yaker v. France and Miriana Hebbadj v. France. The complainants, who were fined under this law for wearing a niqab in public, took the matter to the UNHRC where they argued that such a blanket ban implicitly targeted Islamic clothing like burqa and  niqab and hence, violated their right to religion under Article 18 as well as their right against non-discrimination under Article 26 of the ICCPR.

France defended the law as being a reasonable restriction under Article 18(3) of the Convention. The law, France stated, was meant to promote “the values of the Republic”, based on the argument that concealing one’s face in a public place impairs “interaction between individuals and undermine[s] the conditions for living together in a diverse society”. Further, it justified the ban on the basis of public safety and public order. It stated that the ban was neutral and did not target any particular community. It also submitted that the European Court of Human Rights (ECtHR) in its 2014 judgement in S.A.S v. France had found the ban to be valid.

The UNHRC, deviating from the position of the European Court,[1] concluded that the law violated Articles 18 and 26 of the Convention. It reiterated the well-established human rights principle that limitations to rights should be read strictly—they should be applied only for purposes prescribed within the law; such restrictions should be necessary and proportionate to their stated aim; and they cannot be imposed for discriminatory purposes or applied in a discriminatory manner. On applying these principles to the French law, the Committee found that a blanket ban on the full-face veil in public places was neither necessary nor proportionate. France, it added, had failed to demonstrate how the full-face veil per se poses a threat to public safety and order, or how the ban was the least restrictive measure.

The argument that a blanket restriction was crucial for “living together in an egalitarian and open society” (an argument used by France before the ECtHR) was found to be vague, with the concept of “living together” not being a legitimate objective under Article 18(3). There exists, the Committee observed, no right to “interact with any person in a public space and the right not to be disturbed by other people wearing the full-face veil”.

On gender equality and non-discrimination, the Committee noted that even though the law used neutral language, it was, in effect, targeting the Islamic veil and hence, had a disproportionate impact on Muslim women wearing full-face veils. Most importantly, it stated that the ban “appears to be based on the assumption that the full-face veil is inherently discriminatory”. While acknowledging that women might don the veil due to familial or social pressures, the Committee observed that “the wearing of the full-face veil can also be a choice—or even a means of staking a claim—based on a religious belief”.  Far from protecting them, the Committee noted that the law could have an opposite effect. It could confine fully veiled Muslim women to their homes, impede their access to public services, and expose them to abuse and marginalisation. Hence, owing to its discriminatory effect, this law, too, was held to be in violation of Article 26 of the ICCPR.

Conclusion

In countries where such a ban has existed, such as Turkey, it has been found to have a measurably negative affect on Muslim women who choose to wear the veil. While a ban on the hijab is not inherently or per se violative of Article 18, any ban has to comply with the restrictions under Article 18(3), read strictly.

The Karnataka High Court’s interpretation that the ban advances gender equality, without examining whether the state met the conditions of legitimate aim, necessity, reasonableness and proportionality in allowing educational institutions with prescribed uniforms to prohibit the hijab, goes against the principles of human rights law. In examining whether a law or state action promotes gender equality, not only the intention but also its effect has to be taken into account. Reports of the discriminatory effects of the ban are already emerging. As the judgement is appealed against, it is now for the Supreme Court to take human rights jurisprudence and the learnings from other jurisdictions seriously in examining the matter.

Acknowledgements

The author would like to thank Arti Gupta for her research assistance in writing this article.

Notes

[1] The ECtHR in many cases such as Leyla Şahin v. Turkey and S.A.S. v. France, has upheld a ban on wearing hijab. However, what is significant is that even in these cases, gender equality was not the ground for its decision.

About the Author

Rashmi Venkatesan is Assistant Professor at NLSIU.