Co-authored by Shabna Stephan
A few days back, Germany’s Federal Administrative Court of Germany clarified that anyone wearing a turban for religious reasons is not exempted from wearing a helmet when riding motorcycles. A man from the Sikh community filed an application for exemption from the rule to wear a safety helmet when riding a motorcycle, as it was interfering with his religious obligation to wear a turban. The court rejected this contention and stated that the exemption could only be granted for health reasons.
In case he wants to comply with the obligation to wear a turban for religious reasons, he must forego motorcycling. The court also observed that non-wearing of helmet affects the rights of third parties as well, during the rescue process. In this context, this post aims to determine if there is a coherent notion of religious freedom in international legal theory.
Article 2, Article 18 and Article 27 of the Universal Declaration of Human Rights, 1948 (UDHR) give all individuals the freedom of religion without being discriminated. Article 2, Article 4 and Article 18 of the International Covenant on Civil and Political Rights, 1966 (ICCPR) further elaborate on these provisions in detail. According to the above-mentioned articles of the UDHR and the ICCPR, all individuals have the freedom to manifest their religion; such freedom can be limited only by prescribed law.
However, the problematic part is that limitations on the freedom of religion in the above-mentioned articles contain vague terms such as “to protect public safety, order, health or morals or fundamental rights and freedoms of others.” There are no clear definitions for these terms, and its interpretation can very subjective. Further, it can be observed from the case laws mentioned below that it is the weaker sections of the society that are mostly affected.
In the case of Karnel Singh Bhinder v. Canada Human Rights Committee, the Human Rights Committee decided that the requirement of wearing a hardhat by removing the turban is a limitation justified by the ground – to protect public safety. This also qualified as proportionate and necessary to the aim it sought to achieve and therefore there exists no violation freedom of religion. We can see that if the limitation is justified, there is no remedy available to people.
As discussed earlier, these limitations can also be on vague and subjective terms. So, the weaker sections of the society will always be at a disadvantage. Religions which are better positioned tend to get the benefits while the minority will remain sidelined. This trend can be further seen in the other cases as well.
In Leyla Şahin v. Turkey, there was an interference with Leyla’s right to manifest her religion by wearing a headscarf in her medical school. The European Court of Human Rights (ECHR) opined that the purpose of this restriction was to preserve the secular character of educational institutions and hence this type of indirect discrimination was found to be both necessary and proportionate. This is particularly problematic because if this type of indirect discrimination is deemed to be proportional to a legitimate end, then inequality of results will be condoned.
As discussed above, the limitations provisions are vague and subjective. Therefore, majority religions within each society will often not be subject to any limitations, while minority religions will be at a disadvantage because of the possibility of courts finding the limitations on them necessary and proportionate.
Examining Turkey’s domestic policies, it appears that Turkish authorities believed that wearing the headscarf is a backward practice and represents political Islam. They believed that there is no space for religion in the public life. This insight helps us understand the reason for prohibiting the headscarf. Similarly, France claims to be a truly secular state. But France only maintains the places of worship that existed prior to 1910. The places of worship that existed prior to 1910 are only the churches. This clearly shows the affiliation France has with Christianity and the idea of secularism France supports.
The United States also claim to be a truly secular state with no particular association to a religion, but President Obama was required to prove that he was Christian before taking the presidential oath which shows the idea of secularism the US maintains.
In the case of Raihon Hudoyberganova v Uzbekistan, Raihon was restricted from wearing the hijab inside the university and the case was heard by the The United Nations Human Rights Committee (UNHRC). It was held that her right under Article 18 the ICCPR was violated even though this could be limited under Article 18 itself. Because Uzbekistan had asserted no justification as to why the restriction in this case would be necessary, the UNHRC held that Raihon’s freedom of religion had been violated.
There appears to be extreme similarity between the ECHR and UNHRC in the cases of Leyla Şahin and Raihon Hudoyberganova when it comes to limiting the manifestation of religion. ECHR held that if the State (Turkey) can justify its decision to limit a right holder’s freedom to manifest religion, this type of limitation can be valid. The UNHRC struck down the limitation as the State (Uzbekistan) could not justify its actions.
Thus, one may conclude that if Uzbekistan had given a valid justification for its limitation on the right holder’s freedom of religion, such a limitation would have been upheld. Therefore, the UNHRC and ECHR’s approaches in these two cases are very identical. According to UNHRC and ECHR case law, States have the power to limit one’s freedom of religion so long as they provide a valid justification for their restriction.
According to international law scholars, states typically limit the manifestation of religion on three grounds: public order, fundamental rights and freedoms of others, as well as to protect women from discrimination (Danchin, 2008).
According to the public order ground, manifestation of religious symbols increases the risk of threat and violence against the state and hence the state is justified in limiting the rights of the minority communities. This is exactly what happened in the case of Leyla Şahin where she was prohibited from wearing the hijab. According to scholars, this is not a valid ground as the right of any member of the community who takes religious manifestations seriously, like Leyla Şahin, would have to compromise on their rights.
The second ground to limit religious freedom is to protect the fundamental rights and freedom of others as the manifestation of religion might provoke, pressurize or proselytize others in the community. This is a problematic ground as it would be difficult to imagine a situation where by wearing the hijab, Leyla Şahin or Raihon would interfere with the fundamental rights and freedoms of other students in the universities.
The third ground for limiting freedom to manifest religion is gender equality. This would essentially mean that the limitation on the hijab on Leyla and Raihon was based on the concerns regarding autonomy and equality of Muslim women. Scholars raise objections against this ground as this is a blanket assumption that the hijab represents oppression.
International human rights law is supposed to be universal, and is supposed to impose obligations upon states to ensure that all people have the same basic rights and protection afforded to them. However, from the above discussion, it is evident that law does not work in isolation of culture and politics, and that different states have varying ideas of secularism, which can in turn affect the implementation of their domestic laws. In conclusion, there is no coherent notion of religious freedom in international legal theory.
[Shabna Stephan and M. Koshy Mammen are both 4th Year Students at Jindal Global Law School, Sonipat]