Abstract
General stance of the Human Rights discourse is that minorities are subjected to discriminations, they are treated as second class citizens by the majority, and, hence, their rights are specially to be protected. Religious minorities encounter typical problems in practicing and observing their religions and cultures. Religious minorities in European countries in which secular and liberal democratic form of governments are in place enjoy their rights comparatively better is a fact not much contested. However, the burqa ban in France in 2010 followed by Belgium and many other European countries provides a testing field of religious minority rights and religious freedom under secular and liberal democratic states. This essay tries to explore how two of the founding stones of Human Rights discourse namely equality and non-discrimination are protected or breached with the ban of burqa. Views pro and against are evaluated on the basis of various theories and concepts. UN declarations and conventions as well as European conventions were readily consulted for authorization, verification and validation of facts. ECtHR’s remarks on the validity of the ban are tested against human rights discourse, equality and non-discrimination in particular. The essay opens an avenue for discussion of different views about the ban from different perspectives. Key Words: Religious minority, substantive equality, non-discrimination, public good & safety, tolerance, reciprocity, pluralism.
Highlights
This essay is a modest endeavour to test selected theories and concepts of Human Right discourse to test the contemporary issue of the burqa
Is it that when the majority of a country is Muslim, that liberty goes and people are asked by the theocracy or the state what to wear and what to do? If the ‘stirring passion’ theory is valid, it should be applicable trans genders. Men should cover their faces because they would stir passions in a woman by exposing his face. It has been clear with the ban of B in some of the European countries that National law based on the constitution supersedes minority rights
Burqa ban is a good sign for substantive equality for Muslims
Summary
This essay is a modest endeavour to test selected theories and concepts of Human Right discourse to test the contemporary issue of the burqa. Religious freedom as a right is vertical, subjective, direct, active, natural, universal and not God-given It is, as other human rights, related to three institutions; family, civil society and the state. The reason for this seems that it considers case by case taking seriously into consideration the nature of the society, legal system, constitution, political system, positive and negative impacts of the verdict to be passed to the country in question It is not out of the context here to discuss if the ban of B in some of the EU countries is in breach of ECHR or other international instruments if it is a blanket ban which constitutes a disproportionate infringement of human rights. First, the ECtHR scrutinizes if the ban of would be regarded as constituting an infringement of the right to freedom of religion presuming that covering of the face in public is a religious rule/observance guaranteed in article 9 (1). The infringement is to be justified under Article 9 (2) as “necessary in a democratic society in the interests of public safety, for the protection of public order... or for the protection of the rights and freedom of others.”
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