Problems with Right to religion

Introduction

It is known to everyone that every International Human Rights Law is supposed to be

universal in nature. It imposes obligations upon every state to check that every person in
the state have the same basic rights and protections afforded to them. The right to choose
a religion or no religion without any kind of interference is one of the fundamental rights of
every human being that has been granted at international level. It should be a decision of
the person to which religion to follow or not to follow. This paper would try to explain which
international authorities have granted rights regarding freedom to religion and what are its
sources. Further it would try to explain how different cases have been decided by dieffrent
courts with respect to this Right to Religion.

UDHR on Freedom of Right to Religion

Right to religion is right that has been granted by many International conventions and
treaties along .For our purpose if we look at Universal Declaration of Human Rights (UDHR),
then article 2 clearly states that no discrimination shall be done on the basis of religion a
person is practicing. Moreover, Article 18 of UDHR exclusively talks about right to religion
and clearly states that “Everyone has the right to freedom of thought, conscience and
religion” 1. This article further says that right to religion gives to right to practice your
religion in public or in private in any manner like teaching, practicing worshiping or mere
observing it. No one can take away the right to religion from any one.

It can be said by looking on this article that UDHR provides freedom to religion to every
person irrespective their physical appearance or any other identity which they have which
include their jurisdictional or international status or country they belong as stated in Article
2 of UDHR. It keeps every person at same level when it comes to right to religion.

ICCPR on Right to Freedom of Religion

Apart from UDHR, ICCPR also guarantees right to religion to every person around the world.
Article 18(1) ICCPR clearly states that "Everyone shall have the right to freedom of thought,

1
http://www.un.org/en/documents/udhr/ (last visited 18May 2015)
conscience and religion. This right shall include freedom [...] either individually or in
community with others and in public or private, to manifest his religion or belief in worship,
observance, practice and teaching."2

However Article 18(3) states that this Right is limited by limitation prescribed by law and
situations which are necessary to maintain the public order in society or morals or the
fundamental rights and freedoms of others."

Protecting the Rights

Human Rights Committee in the case of Bikramjit Singh v. France3 decided that there was a
violation of fundamental right of Mr. Singh by the state of France.

Bikramjit Singh, a Sikh aged 18, was not allowed to enter into his class and was required to
sit into canteen and study only because of the wearing of a keski on his head as his religious
custom. The keski is a small light piece of material of a dark colour, often used as a mini-
turban, covering the long uncut hair considered sacred in the Sikh religion. The school even
decided to expel Bikramjit because he refused to comply with the school’s demand to
remove his keski in the school premises. The Human Rights Committee while deciding the
case said that though it has to be acknowledged that France is trying to protect secularism
but it cannot be used to limit the rights of an individual. The committee also said that state
did not provide “compelling evidence that by wearing his keski the author would have posed
a threat to the rights and freedoms of other pupils or to order at school”4. Court also said
that “Bearing in mind that, by becoming a party to the Optional Protocol, the State party has
recognized the competence of the Committee to determine whether or not there has been a
violation of the Covenant and that, pursuant to article 2 of the Covenant,”5

In conclusion the Committee finds the expulsion of the Mr. Singh because of his wearing of a
religious garment disproportionate and unnecessary and therefore finds a violation of the
freedom of religion.

Case of Hudoyberganova v Uzbekistan

2
http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf (last visited 18 may 2015)
3
UN Doc CCPR/C/106/D/1852/2008 (last visited 18 may 2015)
4
Bkiramjit Singh v. State of France UN Doc CCPR/C/106/D/1852/2008 (last visited 18 may 2015
5
Id.
Hudoyberganova v Uzbekistan6 is another case in which court has stepped up and protected
the right to Religion of an individual. In my opinion, the case was rightly decided by
United Nations Human Rights Committee(UNHRC). In this case, they found that prohibiting
any person from wearing headscarves was breach of religious rights religious rights under
Article 18 of ICCPR. The ground of not allowing the Hudoyberganova from wearing
headscarves seemed to me arbitrary and unjust.

Plenty Wrong with Leyla Sahin

However international Committees have tried their best to save Right to Religion of
individual, there have been some unfavourable cases too. Now the question which arose
here is that though Right to religion has been granted by both UDHR and ICCPR, it has been
very evident through some of the cases that Right to Religion is not everyone’s Cup of tea.
There have been many instances which showed that How states have taken away the Right
to Religion on unreasonable grounds.

Anna Galeotti said that: “The naive liberal view conceives of toleration as the principle
according to which everyone should be free to follow his or her ideals and style of life as long
as no harm is done to anyone else. Headscarves do no harm to any third party, and the
choice to wear one for whatever reason rests in the proper domain of personal freedom.” 7

When we talk about taking away of the Right to Religion by states, one of the case that is
very appropriate is the case of Leyla Şahin v. Turkey8 where an arbitrary rule of Istanbul
University Banned wearing Hijabs in University.
Not allowing Leyla Sahin inside the examination theatre on a number of accounts only
because she used to wear hijabs at university because being from a traditional Muslim
family she believed it to be her duty to wear the hijab is one clear example of how right to
religion are taken away by arbitrary decisions. Circular issued by the Vice-Chancellor of
Istanbul University has shown that though UDHR and ICCPR provides right to freedom of

6
Hudoyberganova v Uzbekistan U.N. Doc. CCPR/C/82/D/931/2000 (2004)
7
PETER G. DANCHIN, Who Is the ―Human‖ in Human Rights? the Claims of Culture and Religion, Md. J. of Int'l
L. 110.
8
Leyla Şahin v. Turkey 91 Cornell L. Rev. 129 (2005)
religion, still arbitrary state polices overlook these rights which are supposed to be universal
rights.
The Decision
The European Court of Human Rights gave its decision over the judgement given by
Constitutional Court that banned wearing of religious dress in public places. Unfortunately
The European Court also in its judgement said that the banning of hijab in the university has
not violated Article 9 of the European Convention of Human Rights (Convention), the first
sentence of Article 2 of Protocol No. 1 of the Convention; Article 8 of the Convention; Article
10 of the Convention or Article 14 of the Convention.

Problem with the decision

The European Court, while deciding tried to be very diplomatic as on one hand said that:

[A]ccordingly, her decision to wear the headscarf may be regarded as motivated or

inspired by a religion or belief and, without deciding whether such decisions are in
every case taken to fulfil a religious duty the Court proceeds on the assumption that
the regulations in issue, which placed restrictions of place and manner on the right
to wear the Islamic headscarf in universities, constituted an interference with the
applicant’s right to manifest her religion.9

On other hand it was not willing to indulge into the domestic matter of the country. It
supported the banning of the Hijab by saying that Appellant knew the regulations of the
University prior to the time she took admission; hence she was liable to be banned from
wearing headscarves in the University.

It is very ironical that on one hand the European Court said that. “Freedom of thought,
conscience and religion is one of the foundations of a “democratic society” while on the
other hand it its shaking the same foundation by its opinion that it is necessary to place
restrictions on the choices of individual if in that democratic society where several religions
coexist.

According to me the court took tolerance and broadmindedness in a very wrong manner
by saying this. One should be tolerance and broadminded in a sense which allows everyone

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Leyla Şahin v. Turkey 91 Cornell L. Rev. 129 (2005)
to practice whatever religion they want to practice rather than being tolerant and
broadminded to the statute which restricts a person from acquiring his or her fundamental
rights.

Wearing of headscarf was seen in two ways, some saw it as an expression of religious
identity while some who considered them as secular saw it as threat to republican values
and civil peace. In the section Equality and The Claims of Culture of the reading, Who is
Human in Human Rights it has very rightly stated that any conflict between Members of
different national, cultural, and religious groups does not arises due to difference between
individual but because of unequal treatment between groups.

Forceful Secularism

In India there is a case called Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat & Ors.10
This case can be seen as perfect example of how in trying to be a secular state right to
religion was turned down to forcefully following norms of a religion. Hon’ble court in this
case had said that closing down the slaughter houses and restricting people from selling
meat during the Jain festival is a step which is genuine in order to maintain the unity among
Indians and to show respect for other religions. The court said that there is no harm in
closing down slaughter house for the period of 9 days as they are not closing it permanently.
Honourable court is mixing force and tolerance. In its judgement the court is saying that
“Since India is a country of great diversity, it is absolutely essential if we wish to keep our
country united, to have tolerance and respect for all communities and sects.” It is very
disappointing from my point of view that forcing people through court orders to practice
any norms of any other religion is seen as tolerance by the honourable court.

In an attempt of protecting someone’s religious sentiment, the decision took away other
people right to livelihood as most of the people who are working in the slaughter houses are
unskilled workers. They are the people who work on daily wage basis. Closing down
slaughter house for 9 days would lead to major problems in their lives It is very essential for
a daily wage worker to earn everyday as they fall in low income category and do not have
sufficient money every time. Secondly, section 19 (1)(g) of the Indian constitution gives right
to each and every citizen of India to practice any trade or business in any part of India. The

10
Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat & Ors. AIR 2008 SC 1892
judgement given by the Hon’ble court is violating the fundamental right guaranteed by the
constitution of India.

Conclusion

It can be seen that having Right to Freedom of Religion is one thing and having “right to
enjoy that right” is another. It is similar to the argument that everyone has the right to
property but in order to avail that right one must also have some property. In the same way
to practice any religion, one should be set free from all the domestic laws so that he or she
could choose whichever religion they want to.