13 Feb 2010

Burqa / veil and Courts: The law revisited

An innocuous sounding prayer but one with ramifications lying manifold seems to be case of M. Ajmal Khan who challenged the Election Commission of India's insistence on the requirement to have a full-face photograph on the Election Card and disallowing ladies to put on veil in such photos. The challenge was made before the Madras High Court which was quick to put it down but now that the matter has approached the Supreme Court and a decisive outcome is awaited, we bring to you the existing legal position on this intricate issue involving human rights, personal liberties and the constitutional guarantees relating to the right of a woman to insist on wearing a veil.

The High Court of Madras noted the challenge in the following terms: "The Election Commission of India with a view to improving the fidelity of the electoral rolls and to evolve methods to check impersonation and eradicate bogus voting decided to undertake the project of putting the photographs in the electoral roll itself so as to achieve the purpose of proper identification of the electors at the polling stations. ... In so far as the State of Tamil Nadu is concerned, the Election Commission has directed to prepare and revise the electoral rolls with photographs of voters". "The constitutional validity of the aforesaid direction is put in issue in this writ petition under Article 226 of the Constitution of India. The petitioner- M. Ajmal Khan is seeking for issuance of writ of mandamus forbearing the Election Commission from in any way publishing or releasing the photographs of the women particularly the Muslim Gosha women in the eligible voter's list in respect of all the Constituencies in the State of Tamil Nadu particularly for the ensuring bye-election to Madurai Central Assembly Constituency. The contention of the petitioner is that though the requirement of photo identity cards to be kept by eligible voters for the purpose of voting cannot be disputed or the same cannot be found illegal as it is in the welfare of the General Election and towards the fairness, but the usage of such photographs in the final electoral rolls, which is easily accessible to any one including the representatives of political parties on payment of necessary charges, cannot be said to be necessary and mandatory for ensuring fair election. The usage of photographs in the electoral rolls of eligible voters and in particular the photographs of Muslim Gosha Women will easily find its way into the hands of those persons whose identity is not known, which is opposed to religious beliefs, tenets of Koran and it will cause irreparable loss, damage, mental agony to the entire muslim community at large. It is contended that wearing of purdah by Muslim women is one of the principles laid down in Holy Koran and it has to be strictly followed by Muslim women. From the time immemorial the Muslim women are adhering to these principles in their life. Therefore, any interference with such religious practice would amount to interfering with the fundamental right of the Muslim women, which is guaranteed under Article 25 of the Constitution of India."

The High Court took an extensive examination of the religious literature on the practice of purdah (burqa/veil) being in vogue and the decisions of the courts on the issue while declining to interfere with the direction of the Election Commission concluding thus; "The democracy being the basic feature of our constitutional set up, there can be no two opinions that free and fair elections to our legislative bodies alone would guarantee a growth of healthy democracy in our country. The decision of the Election Commission of putting the photographs in the electoral roll was taken with a view to improving the fidelity of the electoral rolls and to check impersonation and eradicate bogus voting. Hence, the argument of the learned counsel that the decision violates the right to privacy is required to be rejected." [Have a look at this decision] However, what was criticial to note was the observation made by the High Court that purdah system is not an innate trait for the followers of Islam. The High Court noted as under;

it is necessary to examine whether the Gosha or Purdah is an essential ingredient or part of the Muslim religion. The famed Koran translator Mohammad Marmaduke Pickthall, whose official translation of Koran was cited before us said in his 1925 lecture "The Relation of the Sexes" that there is no text in the Koran, no saying of our Prophet, which can possibly be held to justify the practice of depriving women of the natural benefits which Allah has decreed for all mankind (i.e. Sunshine and fresh air and healthy movement).... The true Islamic tradition enjoins the veiling of the hair and neck, and modest conduct that is all. This is borne out by the following Hadith: Ayesha (R) reported that Asmaa the daughter of Abu Bakr (R) came to the messenger of Allah (S) while wearing thin clothing. He approached her and said : 'O Asmaa! When a girl reaches the menstrual age, it is not proper that anything should remain exposed except this and this. He pointed to the face and hands." (Abu Dawood). He further observed that veiling of the face by women was not originally an Islamic customs. It was prevalent in many cities of the East before the coming of Islam, but not in the cities of Arabia. The purdah system, as it now exists in India, was quite undreamt of by the Muslims in the early centuries, who had adopted the face-veil and some other fashions for their women when they entered the cities of Syria, Mesopotamia, Persia and Egypt. It was once a concession to the prevailing custom and was a protection to their women from misunderstanding by peoples accustomed to associate unveiled faces with loose character. Later on it was adopted even in the cities of Arabia as a mark of (tamaddun) a word generally translated as 'civilization' but which in Arabic still retains a stronger flavour of its root meaning 'townsmanship' that is carried by the English word. It has never been a universal custom for Muslim women, the great majority of whom have never used it, since the majority of the Muslim women in the world are peasants who work with their husbands and brothers in the fields. For them the face-veil would be an absurd encumbrance. Thus the Purdah system is neither of Islamic nor Arabian origin. It is of Zoroastrian Persian, and Christian Byzantine origin. It has nothing to do with the religion of Islam, and, for practical reasons, it has never been adopted by the great majority of Muslim women.... The Purdah system is not a part of the Islamic law. It is a custom of that Court introduced after the Khilafat had degenerated from the true Islamic standard and, under Persian and Byzantine influences, had become mere Oriental despotism. It comes from the source of weakness to Islam not from the source of strength.
Thus one can note that according to the High Court purdah system is not a trait to be derived from pure Islamic outlook. The decision is under challenge before the Supreme Court but what is  also controversial is the declaration by the High Court that even if the purdah system was a part of the Islamic religion, it could not be protected under the Constitutional set-up in India as such right of religious practice was "subject to public order, morality or health and also to the other provisions" of the Constitution. In short, according to the High Court the right to exercise one's wish to cover one's physical self to the total disillusionment of others is not be protected.

The debate is, however, not new. The matter has already traversed European Court of Human Rights before which the ban on veil by Turkey was challenged as violative of human rights. The Grand Chamber of the Court, in an emphatic decision delivered in November 2005, the ECHR upheld the ban imposed under law in Turkey on head-scarfs worn by female students in colleges. The Grand Chamber, inter-alia, as under;
106. In democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on freedom to manifest one’s religion or belief in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected ... 

108. Pluralism, tolerance and broadmindedness are hallmarks of a “democratic society”. Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of people from minorities and avoids any abuse of a dominant position ... . Pluralism and democracy must also be based on dialogue and a spirit of compromise necessarily entailing various concessions on the part of individuals or groups of individuals which are justified in order to maintain and promote the ideals and values of a democratic society ... . Where these “rights and freedoms” are themselves among those guaranteed by the Convention or its Protocols, it must be accepted that the need to protect them may lead States to restrict other rights or freedoms likewise set forth in the Convention. It is precisely this constant search for a balance between the fundamental rights of each individual which constitutes the foundation of a “democratic society” ...
Have a look at ECHR's decision, which clearly marks the judicial trend favoring such Governmental regulations which seek to restrict the practice of veils. In recent times a debate on same issue has also gained prominence in France relating to the proposal mooted by the French Government to impose a blanket ban on veils and make it a condition of citizenship for the new immigrants. 

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