Rashmi Venkatesan: The recent uproar on wearing the hijab in Karnataka’s educational institutions has reignited the debate around gender equality and freedom of religion. These are not just constitutionally guaranteed fundamental rights, but are also recognised human rights. Hence, the hijab ban also needs to be seen from an international human rights law (IHRL) perspective.

Although a full and robust discussion on the hijab ban traverses many legally dense issues such as the meaning of gender equality, secularism, right to religion, cultural rights, freedom of expression etc., here I attempt to briefly answer three immediate questions. First, whether wearing hijab or any other face/head covering is protected under IHRL? Second, are there any legitimate limitations to the right? Third, does the hijab ban in Karnataka’s schools and colleges and the subsequent order of the Karnataka high court stand up to scrutiny under the IHRL?

Is wearing hijab protected under the IHRL?

On October 11, 2010, France passed a law, Act No. 2010-1192, which stipulated that “No one may, in a public space, wear any article of clothing intended to conceal the face”. Violations of the law were punishable by imprisonment and fines. Miriana Hebbadj and Sonia Yaker, two French Muslim women, were fined under this law for wearing a burqa in public.

Article 18 of the International Covenant on Civil and Political Rights (ICCPR) reads, “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public [emphasis mine] or private, to manifest his religion or belief in worship, observance, practice and teaching.”

Way back in 1993, in its General Comment No. 22, the United Nations Human Rights Committee (UNHRC or Committee) interpreted the scope of this Article to include “not only ceremonial acts but also such customs as the observance of dietary regulations, the wearing of distinctive clothing or headcoverings”.

France, like India and most countries in the world, has signed and ratified the Convention. This means that it has a legal obligation to respect, protect and implement the Covenant’s provisions into its domestic jurisdiction. At the very least, it cannot violate them.

Arguing that the French law violated their right to religion guaranteed under the ICCPR and aggrieved by it, the two women approached the UNHRC. In 2018, the Committee, in its two landmark decisions, Miriana Hebbadj v. France and Sonia Yaker v. France, decided that the French burqa ban was indeed in violation of the right to freedom of religion (Article 18) and the right to equality (Article 26) of the ICCPR.

Based on these decisions and the general comment, it is fairly settled that wearing a burqa or full face covering is protected as a right to religion under the IHRL. Remember that the current Karnataka ban includes not just face veils but also hijabs, which is only a headscarf.

Are there reasonable and permitted restrictions on this right?

Now for the tricky question – is the right to wear a hijab absolute or are some restrictions permitted within the Convention?

Right to religion, like most other rights is not absolute. Article 18(3) of the Convention allows the “freedom to manifest one’s religion or beliefs may be subject only [emphasis mine] to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others”.  This is somewhat similar to Article 25 of the Constitution of India that makes the freedom of religion “subject to public order, morality, and health” and other provisions of Part II of the constitution.

France defended the law as being necessary to safeguard “the values of the Republic” as the concealment of one’s face would “impair the interaction between individuals and undermine the conditions for living together in a diverse society”. Additionally, it invoked public order and public safety to justify the ban.

Examining these arguments of fraternity, public order and public safety, the Committee held that banning the burqa in public places did not fulfill any of these stated aims. It decided that “living together” was a very vague standard and not covered by the exception under Article 18(3). It also held that there was nothing to show that “wearing the full-face veil in itself poses a threat to public safety or public order that would justify such an absolute ban.”

In making the decision, the Committee made certain critical observations. It stated that the ban was “based on the assumption that the full-face veil is inherently discriminatory and that women who wear it are forced to do so”. While some women may practice wearing the burqa out of family or social pressures, the Committee observed that it “can also be a choice – or even a means of staking a claim – based on a religious belief”. Significantly, it considered the ban, “far from protecting fully veiled women, could have the opposite effect of confining them to the home, impeding their access to public services and exposing them to abuse and marginalisation.”

Hence, the UNHRC found the French law to be in violation of both gender equality and religious freedom.

Does the current hijab ban violate right to religion under international human rights law?

There is no doubt that banning the wearing of burqa/hijabs in colleges is a restriction of Muslim women’s right to religion as protected under the IHRL. The only question is whether the restriction is valid or not.

The Government PU College’s decision to not allow hijab-clad students to enter the university seems completely abrupt and arbitrary. It does not seem to be supported by any law or government order and hence patently illegal.

Subsequently, however, as the hijab row started snowballing and more colleges were drawn into this controversy, a government order, of suspect legal standing, was passed on February 5, 2022, which in a nutshell, empowered schools and colleges to ban the hijab as part of a uniform dress code on the grounds of unity, equality and public order.

Surprisingly and disappointingly, the interim order of the Karnataka high court, arising from the writ petitions filed by some of the Muslim students, prohibits all students from wearing religious clothing. This order has effectively banned the hijab on the ground of public order. Its claim to fairness is that the restriction applies to saffron shawls as much as hijabs.

However, the order is based on the misleading and disingenuous assumption that the saffron shawl has the same religious and cultural significance as the hijab. The shawl was donned simply to escalate and politicise the issue, and is not a deeply held religious practice or a part of the wearer’s identity. This is why when asked to leave their religious clothing at the gate, Hindu men removed their saffron shawls and went to college while Muslim women stayed back home.

The reasons quoted by the Karnataka government and the high court in its order are similar to the ones raised by France – equality, fraternity and public order. And all these three reasons are inadequate in IHRL.

Banning the hijab on the ground of equality is based on a very thin and shallow reading of equality to mean sameness. As argued above, even if the intention of the law was equality, its effect is clearly discriminatory against both women and a religious minority. It penalises Muslim women disproportionately more than it does men and women of other religions, and even Muslim men. Even cases like S.A.S. v. France that allowed the ban on other grounds, rejected the argument of equality as a reason to ban the burqa in public places.

Similarly, the unity argument, which is akin to the ‘living together’ argument made by France, was rejected by the HRC on grounds that it is vague and not covered within exceptions provided for in the Convention. ‘Unity’ is not a ground available in Article 25 of the constitution either. And for good reason. Otherwise ‘unity’ can be interpreted as uniformity to eliminate all kinds of differences. Banning the hijab in schools and colleges will only make educational institutions exclusionary spaces.

Lastly, the ground of public order is also equally unfounded and entirely unsubstantiated. Ironically, naked Sadhus are not considered a threat to public order but fully covered women are! As events unfold, it is becoming clear that it is the banning and not the wearing of the hijab that is proving to be a threat to public order.

It is pertinent to remember than banning the burqa made France neither more peaceful nor secular. On the contrary, it caused greater distrust among its Muslim minority and has led to increased polarisation of the French society.

In the debate on the hijab, one thing should always be borne in mind. It is not the hijab but the banning of the hijab that should be scrutinised on the threshold of constitutional law and human rights norms. The hijab may well be a practice of gender discrimination but so is banning it. Coercively disrobing a woman is equally a negation of her agency as coercively veiling her. It is finally the women who have to decide.

Author: Rashmi Venkatesan is assistant professor at the National Law School of India University, Bangalore.