Revisiting the burkini issue: a Human Rights Perspective from India

Autor:Rashmi M. Oza

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Rashmi M. Oza

Universidad de Mumbai, India

“Human Rights and Fundamental freedoms are birth rights of all human beings.” “Human rights are not worthy of the name, if they exclude the female half of humanity. The struggle for women’s equality is part of the struggle for a better world for all human beings and all societies.”

Boutros Boutros Ghali

Former Secretary General of the United Nations Organization


Historically, women (especially Muslim women) with burqa or similar attire that covers her entire body has been a symbol of modesty and nobility, guarding women from public gaze. Backed by major religious belief and tradition, the attire still continues across the globe especially in Saudi Arabia, Iran, Afghanistan and Somalia. These religious beliefs have a patriarchal base. The contentious issue as to whether women wear it of their free will or under coercion is till date unresolved. Any attire that covers the full body of women is a culmination of social and core values as believed by Islamic fundamentalists of the seventh century who believed in isolating their own selves so far as dress code is concerned. A ban on burkini is not an impediment to religious freedom as religious freedom is practicing religion in private without any fear.

Focusing on the recent ban on burkini in France (in August 2016), the ban has raised several human rights issues of women on what they choose to wear especially in a free and democratic society. The world was torn between arguments about secularity and religious discrimination. Would this have any bearing on morality of woman? How would one address the issue of equality, fundamental right to freedom of expression and freedom of religious belief? Is it not a grave and systematic violation of woman’s human rights?

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Earlier in the year 2011, ban on burqa in France and the law which the French Parliament approved prohibited people from concealing their faces in public. France, which is home to Europe’s largest Muslim community, is the first country to push through this controversial ban.

Currently burkini and hijab are at the epicenter of public attention. Canada got its first hijab-clad news anchor, a Muslim woman entered the semi-finals of the Miss Minnesota USA pageant wearing one and a designer sent models on the ramp wearing a hijab at the New York Fashion week to a huge applause. Even Sports activities are not sexualized giving women freedom to wear what they want.1 So

also beauty pageants are no exceptions.2 These instances reveals how women voluntarily smashed gender stereotypes and advocated to women around that ‘it is a woman’s fundamental right to decide what she wears’. Today after sixty-eight and half years of the adoption of the Universal Declaration of Human Rights, 1948 (UDHR) by General Assembly of United Nations (UN), it is high time to introspect where do women across the globe stand in the matter of right to choice to decide their attire?

The paper attempts to expose gender asymmetrical distribution of human rights and the state of women’s human rights in men’s world with special emphasis to India. The broad parameters of study in this paper is the entire gamut of gender within human rights discourse as enshrined in international human rights law and the domestic customary and religious laws in conflict. The true test of civilized society would be when all social relations are required to be regulated on basis that cuts across all such considerations like sex, caste, race, religion etc. In India, within both codified and uncodified laws, there are number of provisions that are discriminatory as against women, that are not sanctified by any religion. The existing socio-cultural patterns has shown little sensitivity towards women where restrictions are imposed to her freedom and aspirations including right to choose her attire. Significantly, the Constitutional guarantees of Equality still continue to remain on paper.

Gender within human the rights discourse with reference to the burkini issue

The formation of United Nations after the Second World War ushered universal awareness of the equality of Sexes and Gender Justice. The United Nations

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built on the edifice of equality has been at the forefront for advancing gender justice. The very first step “Reaffirming faith in fundamental human rights, in dignity and worth of the human person, in the equal rights of men and women” that was within UN Charter found its place in Preamble of Universal Declaration of Human Rights (UDHR) 1948.3 The UDHR 1948 has been the first step to translate into action the concern for fundamental human rights reflected in UN Charter. The Declaration covers the entire canvass of human rights both civil and political as also economic, cultural and social rights. These rights are universal for all peoples and all nations, without any distinction. However, these very universal rights are impaired and nullified, when it relates to women due to certain complex socio, historical, cultural, economic and political reasons that vary from country to country, eventually placing women to subordinate position and deprives them of these universally acclaimed rights. Hence in reality, respect for human rights fails to be “universal”.

Equality and Universality form the core of human rights. Today, human progress and prosperity has direct nexus to the degree of reverence to human rights. However, this universal recognition of human rights has not translated itself in their equal distribution, especially in favour of women, who are across the world discriminated lot, since this discrimination is deeply ingrained in our minds and inbuilt in our social and political culture. Within human Rights theories, public sphere remains the primary focus of concern and violation of women’s rights continues under the garb of ‘family autonomy’ and hence outside the scope of interference by State. The position reinforces preservation of male power and subjugation of women’s rights. It also fails to recognize that when women are denied their basic human rights in private, their human rights in the public sphere also suffer, since what occurs in “private” shapes their ability to participate fully in public arena.4

Internationally, though education has been recognized as essential for social change and intellectual human development, the issue is highly debatable in India with certain contradictory complexes, social and cultural factors that retards progress of women’s education. Thus, in reality, neither education nor legislative action have changed women’s subservience and despite the many gains made over centuries, human rights are still at best tenuous.5

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Indian perspective: some reflections and insights

India is a country of different religious groups and all religious groups enjoy same constitutional guarantees without any discrimination. However, religious freedom is subject to public order, morality and health.6 Hence, freedom of religion is not absolute freedom but subject to the regulatory powers of the State. There is no State recognized religion. Indian Society has traditionally been linked to religion.

Religion has not been defined in the Constitution, but it is a matter of faith. The Constitution of India makes several provisions for fundamental rights and protection of minorities from hostile and discriminatory State.

The authority of religious and customary laws is commonly perceived to derive from either the people’s religious beliefs or their communal practice from time immemorial.7 Common perception is that the validity of religious laws is ensured by divine sanction. Contemporary India is a multi-cultural pluralistic society with regard to religious laws. These religious personal laws mostly come in conflict with gender equality. The religious autonomy that various communities claim in turn invokes simplistic notion of choice. Invariably there is no discussion of who is making the choice and whether the structural nature of hurdles in exercising choice makes it a futile concept of most women.

The Indian Constitution contemplates exercise of fundamental rights and freedoms for all without any discrimination on the basis of ‘sex’ being one of the criterion. There exist flaws between two prominent fundamental rights within Constitution of India. Whereas Article 218 right to life and liberty is available to all persons (including non-citizens), the provisions of Article 19(1)9. Such innocuous provision thus inhibits a non-Indian woman residing in India to develop her personality.10 Viewing this article from gender perspective, legal definitions ignore a woman’s right to bodily integrity (where women have choice including attire she desires to wear) that results in offences against women. Whereas Art.19 of the Constitution guarantees freedom of speech and expression as fundamental right, Article 19(2) imposes restriction on this freedom on certain grounds including decency and morality. However, the court acts as “guardian of public morals” in matter of obscenity.

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The very same restriction applies to other statutes including the one in sexual speech under Indian Penal Code,1860, the Indecent Representation of Women (Prohibition) Act, 1986 (IRWPA) and the Cinematograph Act, 1952. Focusing from the perspective of Indian Constitution, the test would be whether any degrading material contributes to preventing women from full exercise of citizenship and participation in public life? Whether such acts/attire/materials/speech undermines women’s equal exercise of rights to speech and action guaranteed to all citizens? Whether such acts/materials/speeches contributes to actual sexual violence against women? If so, it undoubtedly...

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