Is personal autonomy argument enough?

Case study: Treatment of religious attire by Courts and International

Fora

Tanshi Bajaj

The relationship of state and religion has been intertwined yet strained from its very
foundation. In recent years it has taken the face of heated debates on manifestation of
religion and state imposed restrictions prohibiting the same. Religious identity, especially
in historically mystical societies such as the east have been an important one. Wide scale
migration owing to globalisation, of late has produced multicultural societies as opposed to
homogenous societies in ancient times; whereby all in a particular state followed one or
two religions and accommodation of their beliefs was relatively easier. States responsible
for regulating affairs of its citizens are finding it more and more difficult to assimilate
people of different religions as religious and national identities compete against each other
in the backdrop new world issues such ass but not limited to terrorism, globalisation,
migration and realisation of rights in a democracy. This research paper aims to analyse
the treatment of religious attire (including symbols) by international fora. Then it proceeds
to critique the treatment and simultaneously explore the defences employed by plaintiffs in
such cases with special emphasis on personal autonomy argument. Finally, it explores if
there are any alternatives available to supplement or replace the personal autonomy
argument. Research methodology used is primary sources for judgments, and Human
rights instruments in international legal corpus and secondary sources including but not
limited to academic papers, news articles and press releases. There is also an implicit
understanding through research employed by the author that impact of prohibition of
manifestation of religious symbols affect men and women differently in terms of both
intensity and magnitude. Since greater impact is burdened by women, the latter part of
paper is focused to combating the issue at hand through a feminist lens.

Freedom of religion or belief is universally recognised human right stipulated in article 18

of United Nations Declaration of Human Rights (UDHR). It is reaffirmed in article 18(1) of
ICCPR1, article 1 (1) of the 1981 Declaration on the Elimination of All Forms of Intolerance
and of Discrimination Based on Religion or Belief (1981 Declaration) and in article 9 (1)
European Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR). Manifestation is an important component of right to freedom of religion and also
most controversial. Religious symbols and attires as mentioned in the Special
Rapporteur's annual report2, are considered to be display of religious symbols as a
manifestation of religion or belief (forum externum) rather than being part of internal
conviction (forum internum), which is not subject to limitation by most international judicial
or quasi-judicial bodies. Further, display of symbols as an extension of concept of worship

1 “1. Everyone shall have the right to freedom of thought, con science and religion. This right shall include
freedom to have or to adopt a religion or belief of his choice, and 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.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by
law and are necessary to protect public safety, order, health, or morals or the fundamental rights and
freedoms of others.” ICCPR

2 E/CN.4/2005/61, para. 65
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or observance is already largely recognised. 3 Hence despite, OHCR urging the states
persuasively, “to exert the utmost efforts, in accordance with their national legislation and
in conformity with international human rights law, to ensure that religious places, sites,
shrines and religious expressions are fully respected and protected and to take additional
measures in cases where they are vulnerable to desecration or destruction;”4, there still
are regulations or prohibitions in over 25 countries around the world on wearing of
religious symbols or attire.5 These regulations differ in punitive damages and also intensity
of prohibitions imposed.

The jurisprudence of international and domestic courts have been scattered in interpreting
the right to manifestation of religion through symbols. There are evident gaps which can be
found when analysing the case laws concerning the subject. The courts also restrict
themselves to minimal elucidation when pronouncing judgments which has given rise to
the trend where engagement of law with philosophy of religion is restrictive to a certain
extent as was evident in Bhinder v Canada 6. It was a case involving the plaintiff, a Sikh
who alleged discrimination because of his turban, which resulted in interference with his
manifestation of religion. Therein, the court decided that, “the requirement for Sikhs to
wear safety headgear during work was justified under article 18 (3) of the Covenant,
without further specifying which of the grounds for limitation it thought to be in question. In
addition, the Committee did not find de facto discrimination against persons of the Sikh
religion violating article 26 of the Covenant because the legislation was to be regarded as
reasonable and directed towards objective purposes that are compatible with the
Covenant”.7

Religions in different parts of the world have different customs. One understands such
foreign variables through a biased view which is based on his understanding of localised
concepts. Similar thing can be observed with justifications for prohibition of religious
customs which were foreign in particularly states with Anglo-Saxon history. In Singh v
Canada, a male Sikh pupil was expelled from school for refusing to remove his headgear,
which was in this case not a turban but a Keski; a small cloth covering the uncut hair tied
in a bun. In Sikhism, a turban is not worn for proselytising but to simply protect the uncut
hair. Keski was already a compromise between balancing secularism and requirements of
one’s religion. The OCHR neither believed that the pupil in question posed any threat to
the rights and freedoms of other pupils nor was it convinced that proper disciplinary
procedure had been undertaken by the school. In light of these observations, court
decided that, State had failed to prove the sacrifice of those persons rights was either
necessary or proportionate to the benefits achieved. 8 It was an important shift from
Bhinder v Canada, as in this decision, the “selective gaze of law”9 couldn’t evade the sight
of the committee.

Another important observation which can de deduced from jurisprudence of international

courts is the undertone of utilitarian approach adopted by courts when deciding on
prohibition of religious symbols. A wide margin of appreciation is given by international
3 Para 4, Human Rights Committee General Comment 22
4 Clause 4(b) Commission of Human rights resolution 2005/40
5 http://www.uni-trier.de/~ievr/kopftuch/ReligiousSymbols.pdf.
6 [CCPR/C/37/D/208/1986, para. 6.2.]
7 Id
8 Singh v France [CCPR/C/106/D/1852/2008]
9 The circular of 18 May 2004 concerning the implementation of Act No. 2004-228 explicitly states
that “the Act does not call into question pupils‟ right to wear discreet religious symbols”;
Thereby implicitly allowing wearing of Small crosses, pertinent in Christianity.
[CCPR/C/106/D/1852/2008]
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courts to states in matters concerning legislation of laws on religion. 10 Leyla Shahin v
Turkey11 was the case wherein a medical student was suspended for refusal to remove her
hijab in light of Turkey’s dress code reform which explicitly banned any symbols of
religious manifestations in the university campuses. In this case, State’s argument for
implementing this ban on grounds of preserving secularism, promoting equality and
preventing discrimination amongst those who practiced and those who did not practice
Islam were upheld as valid justifications to limit individuals' positive freedom of religion or
belief. Judge Tulkens however critiqued the wide margin of appreciation and expressed
her observation that decision by majority reflected reluctance to rule on state matters. He
further added that such sets a bad precedence is detrimental to human rights regime. She
also offered voice of reason by explicitly reminding “that not mere worries, but only
"indisputable facts and reasons whose legitimacy is beyond doubt were capable of
justifying interference with a right guaranteed by the Convention.” However owing to being
dissenting opinion her opinion had only limited persuasive value which was overlooked in
the following case of Dogru v France as it further extended the margin of appreciation.
Principles of gender equality, unfortunately were not even addressed in this case.
ECTHR’s decisions have historically been more regressive than the OCHR decisions
concerning religious symbols particularly veil ban.

Penultimate analysis in international jurisprudence concerning religious symbols is that the

competing human rights were mostly not balanced with public interest limitations; they
were always biased towards the latter. An important observation which can be deduced
from aforementioned premise is pertaining to the kind of equality anti-veiling laws aim
towards is formal equality and not substantive equality. For instance, the ban on hijab in
France which was not not an ordinary school regulation led to the exclusion of recalcitrant
pupils from public schools. Instead of aiding, it became the biggest obstacle in
emancipation through education. Mere wearing of religious dress mustn't be deemed to be
an obstacle to intellectual development. Hence, the right of every child to education can
and must be invoked by pupils who have been suspended or expelled for wearing
religious symbols in accordance with their religion or belief. The Committee in the
complaint brought forth because of this issue of ban on wearing of religious symbols
noted that such legislation might be counterproductive, as it may eventually neglect the
best interests of the children and limit their access to education. 12 State schools which
should have accepted both pupils who wear the religious symbols and those who don’t
and provide robust autonomy-promoting education to all. In cases of children’s rights
hence, Court can be applauded for being highly sensitive to their needs in most cases.

The current position of Human rights committee, is reflected in its most recent decision of
OCHR, on 23rd October 2018, whereby it held that France was guilty of violating human
rights of two women by fining them for wearing niqab, a full body Islamic veil. 13 Yuval
Shany, Chair of the committee, found that general balance between individual rights and
public interest was not maintained by a general criminal ban. It was first of its kind decision
undertaken by OCHR based on decision in two complaints in 2016. Miriana Hebbadj14 and

10 [Sahin v. Turkey, application No. 44774/98, ECtHR Chamber judgement of 29 June 2004, para.
108 and ECtHR Grand Chamber judgement of 10 November 2005, para. 115.]
11 id
12 U.N. Committee on the Rights of the Child, Concluding Observations: France, 25, U.N. Doc.
CRC/C/15/Add.240 (June 30, 2004)
13 France: Banning the Niqab Violated Two Muslim Women’s Freedom of Religion - UN Experts.
October 23, 2018 (https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?
NewsID=23750&LangID=E)
14 Miriana Hebbadj v France CCPR/C/123/D/2807/2016
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Sonia Yaker15, were both convicted in 2012 for wearing religious attire concealing their
faces in public in contravention to French law stipulating, “No one may, in a public space,
wear any article of clothing intended to conceal the face.” Disproportionate harm had been
caused to the two women, as they were restricted from manifesting their religious beliefs
and France had failed to provide adequate justification on why it was necessary to prohibit
this clothing. Though appreciable to certain extent, this decision nevertheless neither
opposes the Laïcité, nor did it endorses the custom, but has given France 180 days under
its complaint procedure to report on the action taken to implement committees decision.
This decision, though a progressive step, still fails to engage with the issue critically.
However what it did was reignite the longstanding debate about Burqa ban in France. It is
important to take note that Burqa ban is one of the examples of discriminatory laws aimed
towards religious minorities in most nations. Such, discriminatory practices employed at
large by states raise multiple questions because of their problematic nature.

The first problem which can be observed is pertaining to the construct of Secularism. The
secularism principle should ideally not breach the essence or the spirit of the rights and
freedoms promised to all under various national and international legal corpuses. It must
be considered as a legitimate aim and not an end in itself, and to the extent that it
manages to serve any and all aims set out exhaustively and especially in article 18,
paragraph 3 of the ICCPR when strictly interpreted. Ancillary to this secularism problem is
also that of collective rights and individual rights. Individual rights are often seen to be
compromised for the former under the defences which takes on the names of public
interest, national security, health and gender equality. Additionally, most nations place non
domination in the stead of agency and autonomy at the heart of regulations of
manifestation of religion, which facilitates further minority oppression. Minorities, religious
in this case are more often than not, subjected to the principle of seemingly neutral
secularism. However as theoretical construct, its conception, which was in the
enlightenment period in Anglo-Saxon context, must not be forgotten. The biases of
historical origin still remain relevant and are reflected, for instance in Laïcité in France.
Separation of Church and state was understandable back then, but now states, mostly in
the west, now are increasingly valuing non-religion over religion, or one religion over
another religion16, which shifts the scales of neutrality. Another issue pertaining to state
regulation of manifestation is that of definition of public space. Spaces which are not
explicitly public in nature are also assumed to be public spaces for the purpose of
regulation. This allows states to discreetly infiltrate into a person’s personal space and
then also validate it legally and defend it internationally. Hence to keep state’s power of
regulation in check, more importantly margin of appreciation allowed to them, personal
autonomy of individuals is important. In philosophy, ‘Personal autonomy refers to a
person's sense of self-determination, of being able to make choices regarding the direction
of her or his own actions, including the freedom to pursue those choices’17. It is a defence
associated with bundle of other human rights like right to dignity, right to equality et cetera.

Agency and personal autonomy are complex issues. Oversimplification employed by

legislators, courts and other adjudicating bodies deciding to ban headgear (or any other
religious symbol) as oppressive and disregarding arguments of Hijabis (or any other
affected populations) as false consciousness often equate it with rejection of cultural
practices. This approach suffers from fallacies as it fails to account that social relationships
and cultural, religious variables are also present in any choice that one makes. It is not

15 Sonia Yaker v France CCPR/C/123/D/2747/2016

16 Reference to Islamic Republics and associated negative rights
17 (https://www.encyclopedia.com/social-sciences/encyclopedias-almanacs-transcripts-and-
maps/personal-autonomy) (2 October 2018 2:00pm)
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something limited to a particular religion. The legislative attempts to prohibit or regulate
controversial religious practices such as headgear, are hence frequently antidemocratic
and frankly racist in tone, as they have more to do with wedging politics and national
identity building than with genuine concerns about minority women. 18

It is important to acknowledge the dangers that are permeated into legal corpus by the
means of stereotypes. The anti veiling laws, for instance are premised on presumption of
coercion upon women who wear the veils. This narrative is not an outdated one. In fact
with rise in islamic fundamentalist movements such as ISIS wherein women associated
with it are compelled to wear a burqa, are not differentiated from those choosing to wear it
as a representation of individuality or in observance of their religious beliefs in an
European state. This gauging of agency in terms of how little coercion has one been
subject to is also a flawed assumption.19

Relational Autonomy Theory advanced by Marlyn Friedman corrects this fallacy by stating
that women even in strong socio cultural constraints are not lacking in agency as opposed
to prevalent stereotype. It is not impossible for women to reflect their ‘wants, desires,
cares, concerns, values, and commitments.’20 The issue of expressing autonomy becomes
difficult only when externalities of unemployment, structural racism, and discrimination
factor into the equation of autonomy. It is here that procedural autonomy is required to
intervene as the choices with women in this case are limited by such aforementioned
factors. Their involvement in deliberative process becomes of utmost necessity. The state
in such scenarios must ensure meaningful inclusion of such women. Democratic
consultation and deliberation can go a long way towards restoring broken trust and
exposing false stereotypes and assumptions.

Personal autonomy argument made by plaintiffs in most cases concerning prohibition of

religious symbols is innate component to cases of structural discrimination faced by
women of minority. It cannot be alternated with any other approach, however it can be
supplemented with Historical Revisionism. This tool used by historians for years can be
used to bring about critique of history as we know it and use it to separate propaganda
from objective facts.

Hence, if one goes back to trace the history devoid of propagandist arguments made by
missionaries and colonists one realises how and why anti veiling laws were implemented.
They had strong roots in superiority of western values. Western and mostly Anglo-Saxon
norms of morality were pre-dominanty imposed on societies perceived as inferior.
Naturalness of victorian ideal of female role of domesticity was the emphasised upon back
in the day when colonisation was rampant. They also used Anthropology to supplement
their colonial arguments of subordination of women in advancing their objectives of self
interest. Colonial powers did the unimaginable by employing Feminism exploitatively as a
mere malafide instrument to redefine patriarchy in the colonies. An example of this
hypocrisy is evident In Cromer’s actions. He was heralded for unveiling Islam in Egypt but
at the same time was the president of Men’s League for Opposing Women’s Suffrage in
his own country. This forced imposition of emancipatory rhetoric on colonial female
subjects impregnated the veil with multiple meanings. “The veil has now come to
symbolise resistance narrative, not inferiority of culture and need to cast aside its customs

18 Monique Deveaux, Appeals to choice and sexual equality: debates over religious attire,
‘personal autonomy in plural societies: a principle and its paradoxes (Routledge 2018) 96
19 S Madhok, A Phillips, and K Wilson, ‘Introduction’ in S Madhok et al. (eds), Gender, Agency,
and Coer- cion (Palgrave Macmillan 2013) 5.
20 M Friedman, Autonomy, Gender, and Politic (Oxford University Press 2003) 6
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in favour of those of the west”21 Especially in European context, legislations prohibiting
religious symbols are mere facades to retreat from multiculturalism. In France, the veil has
now became a screen onto which images of strangeness and fantasies of danger to the
fabric of French society and to the future of the republican nation are projected upon. 22

Hence, It can be concluded that treatment of people wearing religious symbols has though
undergone a lot of changes in recent years, in international fora, but it still remains
unsatisfactory. Especially Women and Children are made pawns to facilitate the increased
regulation of religions not native to a state or a minority in the state. As a solution, Value
pluralism, which is, premised in substantive equality as a theory of international law should
be applied universally. “A value pluralist approach seeks to satisfy and mediate the claims
between the competing conceptions of the appropriate rights’ holders (a minority versus a
majority, or an individual versus a minority or majority); the relevant goods and interests at
stake (individual or collective, religious or secular); and between the particular claims of
right that these goods and interests ground (individual or collective claims to autonomy or
identity)”.23

21 Leila Ahmed, Women and Gender in Islam (Yale University Press, 1992)
22 J Scott, The Politics of the Veil (Princeton University Press 2007) 15
23 “Suspect Symbols: Value Pluralism as a Theory of Religious Freedom in International Law,”
Danchin, P. Yale Journal of International Law Vol 33, No.1 (2008).
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