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.