Somasekhar Sundaresan

Human Rights

Harper Lee

Switzerland

Federal Assembly

ISIS

In a majoritarian majority ruling, the European Court of Human Rights (ECHR) has refused to interfere with a French law criminalising the wearing of the burqa. Just two of the seventeen judges have written an emphatic and articulate dissent holding the law to be in violation of the European Convention for the Protection of Human Rights. The judgement has sparked an intense debate.The divide is deep and intense. Many a commentator has argued about how the ruling upholds the French version of secularism. Others have argued that criminalising the burqa is as undemocratic as criminalising the pictorial depiction of Prophet Mohammed.The petitioner in this case, a Pakistan- born French national in her early 20s (interestingly represented by a British Hindu solicitor and a British Sikh barrister), moved the ECHR assailing the French law that states: “No one may, in public places, wear clothing that is designed to conceal the face”. The penalty for violation is 150 Euros, which may be substituted or supplemented by a “citizenship course”.The law was preceded by intense Islamophobic discourse. The petitioner argued that she liked to wear the burqa or naqab at times of her choice as a mark of her religious, spiritual and cultural expression. No one was forcing her to cover her face and she indeed does not wear them when hanging out with friends. However, she desired to be able to wear a burqa or naqab on occasions such as Ramadan.She was quite happy to unveil her face to comply with security measures anywhere. The French law was assailed on the ground of being violative of the right to respect for one’s own private life and personal identity, the right to freedom of thought, conscience and religion, and the right to manifest one’s belief, practice and observance, in public or in private.These are rights guaranteed under the European Convention. The majority judges took the view that the criminalisation of the burqa is not in conflict with the Convention and that France has a sovereign right to pursue the French ideal of fraternity and “living together”. In their view, the burqa hindered social assimilation and reaching this ideal.In a passage reminiscent of treatment of “Boo” Radley in’s To Kill a Mockingbird, the two dissenting lady judges have ruled that no individual can be forced to enter into contact with other people against their will.“Otherwise such a right would have to be accompanied by a corresponding obligation,” they have said. “This would be incompatible with the spirit of the Convention. While communication is admittedly essential for life in society, the right to respect for private life also comprises the right not to communicate and not to enter into contact with others in public places— the right to be an outsider.”According to them, the majority view sacrifices concrete individual rights against abstract principles — the far-reaching blanket prohibition “touching upon the right to one’s own cultural and religious identity is not necessary in ademocratic society”.NGOs and universities that intervened in the proceedings supported the petitioner’s cause. In their view, coercing women not to wear the burqa in public with the objective of protecting Muslim women could have counter-productive social outcome — it would incur the risk of women being socially coerced not to visit public places at all.Francophone Belgium, which too has criminalised the burqa and successfully defended it in its own constitutional court, supported France. The ECHR’s majority view is now an incentive to many nations to bring in such bans and is therefore retrograde.A similar law is under consideration in Italy. Despite’sscuttling one attempt at such law, a second attempt is being pursued. Attempts in Netherlands have been rejected by her Council of State but further attempts are reportedly underway.It is only in Spain, the historical venue of the clash of civilisations, where such a law was struck down by the local judiciary as being unconstitutional.Just recently, a French court upheld the sacking of a day-care nursery employee for refusing to remove her headscarf. Social suppression by dictatorial regimes in large parts of Arabia have led to the masjid — the only public place that could not be encroached by State oppression — becoming fertile ground to breed political aspirations rooted in religion. Today, it stands at the emergence psuedo-Caliphates of the likes of theTherefore, similar suppression in European democracies as also in communist China (last week, a ban was imposed on students and civil servants fasting during Ramadan) do not bode well for the long term.