The Ban on Burqas in France: A View from the Perspective of Justice and Rights.

Harshita Tyagi

Burqa, Hijab, Niqab, and turbans are not mere pieces of clothing; they hold ideological and identical significance for a considerable number of people. However, in the 21st century, there are multiple countries which are banning Burqas and face coverings. While Sri Lanka plans to do so for the sake of national security, France did it to protect its secular ideals. Interestingly, yet surprisingly, European nations, which are often conferred to as the champion of human rights, show a growing trend of banning Burqas and other clothing of similar nature. This trend can potentially grow in several Central Asian and African nations, considering the polarizing politics that is taking roots in these areas. Thus, it becomes crucial to assess and deliberate upon how ‘just’ these laws are.

Sri Lanka’s Public Security Minister Sarath Weerasekara announced the ban on Burqa, along with the plans on shutting down 1000 Madarsas. The Burqa ban has been seen as an aftermath of the 2019 Easter bombing, and, has been officially linked to national security and Islamic extremism [1]. On the other hand, the people in Switzerland have voted to ban full-face coverings like Burqa and Niqab in public places, except the places of worship. Though, the vote aimed at all face covering and not of Islam particularly, yet, it was widely understood as a “burqa ban”. This could be inferred through the literature and posters used by the campaigners, which featured caricatures of angry-looking women wearing the Niqab with slogans like, “Stop Extremism” [2]. In 2004, France had banned wearing headscarves, turbans, crucifixes, and other ‘conspicuous’ religious symbols in French state schools. Later in 2010, it banned face covering Islamic veils. According to the French, headscraves, Hijabs and Burqas are a sign of oppression faced by Muslim women. This, they believe, is antithetical to their ideals of secularism.

Before discussing whether such bans are just or not, it is important to understand the significance of these terms. Turbans, Burqas, Niqabs etc, hold religious importance for Sikhs and Muslims respectively. Justice, as a concept, is not devoid of, or isolated from liberty and equality. Also, impartiality and fairness are often seen as aspects of justice. The rationale behind this ban is ‘secularism’ and the idea that people shouldn’t be compelled to follow ‘religious dogma’. The definition of secularism given by the French government states, “Secularism is based on three principles and values: the freedom of conscience and the freedom to manifest one’s convictions within the limits of respect for public order, the separation of public institutions and religious organizations, and the equality of all before the law.” Furthermore, secularism “…guarantees the free exercise of cults and freedom of religion, but also freedom from religion: no one can be compelled to respect religious dogmas or prescriptions” [3] . Although, the oppression of women remains a major area of concern for the French government, they seem to have conveniently disregarded the possibility of women who put on Burqas by their own choice.

According to John Rawls, one of the principles of justice includes, “Each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others”[4] . Rawls, who himself was a propounder of a liberal and pluralistic society, furthered the idea of individual liberty to the extent that it doesn’t infringe on others’ rights and liberty. In the present case, wearing a Burqa or a headscarf can be seen as an example of liberty in practice, which doesn’t infringe anyone else’s rights. In a just society, both an atheist and a theist should have an equal right to liberty.

The idea of the French government seems to be that, if every religious symbol and dogmas are banned then everyone would be brought under one umbrella, thus serving justice. However, as much as it deters liberty it becomes antithetical to the concept of differential treatment. Since a society might have all kinds of people, people who follow a cult, religious, or non-religious people, all of them have different ways to attain fulfillment and individual welfare. A Muslim woman might achieve happiness by wearing a hijab, A Christian might achieve the same by wearing a cross, and a Hindu might achieve the same without doing either. When the government intervenes in such situations and passes laws like the kind as mentioned above, it dictates ‘what’ kind of a person is desirable and how must you attain happiness. Such bans conceive everyone as a single body of people; who would perceive freedom as a process of dissociating from religious symbols and practices. Therefore, it is unjust.

When perceived from Ronald Dworkin’s and Joseph Raz’s understandings, we can assess the validity of this ban in terms of individual rights. Dworkin says, “individuals have rights when, for some reason, a collective goal is not sufficient justification for denying them what they wish, as individuals, to have or to do, or is not a sufficient justification for imposing some loss or injury upon them” [5]. In the present case, the collective goal can be protecting people from ‘forcefully’ following religious dogmas and propagating secular ideas. Now, this justification falls on various parameters. Firstly, not all Sikhs or Muslims are forced to follow religious dogmas, many do so willfully by their choice. Secondly, for this justification to be sufficient it must also be proved that wearing a turban or a headscarf would be detrimental to the individual or the society in some way. On the other hand, welcoming differences add to the secular nature of the society and in no way causes a pluralist imbalance. So, the individuals do have a right to wear a Burqa, Niqab, or any face covering they wish to, because the imposition of the ban isn’t backed by sufficient justification. 

As mentioned above, France is a multicultural society. In such settings, group-specific or community-specific rights hold importance. Will Kymlica, a supporter of minority rights, explained that in many countries the rights of minorities can be suppressed by the economic and political decisions made by the majority. A community-specific right, like in the present case the right to wear a head covering, helps in alleviating the status quo of such communities. Along with this, such rights also help in ensuring the preservation of their culture and traditions. For a multicultural set up like France to be essentially liberal, it is necessary to respect diversity, especially of those minorities which may not have the same common goals. Therefore, the ban imposed by France is contradictory to the idea of equality as a whole as it discounts the vitality of group-differentiated rights in a multicultural setup.

Banning garments and objects that hold religious significance also pertains to the age-old debate of ‘welfare’ and ‘rights’. What the state asserts as welfare often takes precedence over individual liberty and freedoms. Often, this perceived greater good comes at the cost of people’s right to choose. Indeed, many people are forced to follow religious dogmas and traditions, but assuming that everyone is coerced to do so, is a big generalization. The approach of the Sri Lankan government of making a religious identity synonymous with terrorism, which also happens to be an identity in minority in the country, could lead to more than just friction in the country. Similarly, diverse societies like that of Belgium and Switzerland, which should lead by examples, have also put a ban on Burqas and in turn, have lead the identity of a minority in their respective countries in jeopardy.

The name of the author is Harshita Tyagi, first-year student of BLS LLB., SVKM’s Pravin Gandhi College of Law, Mumbai and currently a contributing author at The Blue Letters.

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