The ongoing fracas over the burkini in France has stirred a global debate on the freedom of choice. Some Muslim women who were not comfortable wearing figure-hugging swimming costumes because they left their legs exposed saw a modest swimwear in the burkini and started using it. In fact, the burkini paved the way for these Muslim women to integrate socially, take a dip in the sea and enjoy a sunbath on the sandy beaches.
When I first saw the burkini, I thought that Indian women, across religions and regions, would have greatly benefited from some adaptation of this Western swimwear. How many times have we visited beaches and swimming pools and witnessed an entire generation of our mothers and aunts either keeping out of the pool completely or self-consciously pulling up their saris slightly at the beach to feel the waves. I wonder if a burkini — sans a headcover perhaps — would have been an ideal adaptation for Indian women to enjoy the sun, sand and beach.
The burkini ban caused such outrage because people questioned the French government’s right to determine what women should wear on the beach or on the street. It is a simple principle of liberty that women should wear whatever they want to, be it a skimpy skirt or a head-covering hijab. Simply, each to their own. For a society that professes to be the epitome of individual freedoms, it was scandalous to ban the burkini. Thankfully, the highest French administrative court stepped in and declared the ban to be illegal in one of the French coastal cities.
Apart from questioning the State’s right to prescribe a dress code for women, the burkini ban also raises serious fears about the cultural majoritarianism. Should the law become an instrument of cultural majoritarianism in modern democracies?
Though the burkini ban did not have any direct implications on our lives in India, a large number of people did view it as a regressive and hypocritical measure. But as we discuss the burkini ban, can we look away from what is going on in India, where another debate is raging on cow slaughter? The disrobing of a French woman by the police at the beach after the burkini ban immediately reminded me of the lynching and flogging of persons “suspected of possessing or eating beef” in India which mostly happens with tacit and sometimes open government approval.
The freedom of choice is also at the heart of the cow slaughter debate in India. Although the Supreme Court in Mohd Hanif Qureshi vs The State of Bihar (AIR 1958 SC 731) clarified that a total ban on the slaughter of she-buffaloes, bulls and bullocks (cattle or buffalo) after they cease to be capable of yielding milk or of breeding or working as draught animals cannot be supported as reasonable in the interest of the general public, self-declared cow vigilantes have repeatedly taken the law into their own hands.
The cow vigilantes have been emboldened by laws in states like Rajasthan, which have gone much beyond the Supreme Court judgment and banned any slaughter of bovines. The Rajasthan Bovine Animal (Prohibition of Slaughter and Regulation of Temporary Migration of Export) Act, 1995, prohibits the slaughter of cow, calf, heifer, bull or bullock, thereby criminalising even what the Supreme Court has specifically allowed.
Over the last year in India, the ban on cow slaughter has been used as an excuse to target Muslims and Dalits. Cow vigilantes, who have been patronised by the Hindu Right, have unleashed terror on persons, who are “suspected of possessing beef”. It is tragic that in a country like India which faces massive delays in the delivery of justice for serious crimes, meat is being sent to forensic laboratories to ascertain whether or not it is beef.
The most disturbing aspect of this entire question is that cow vigilantes are allowed to take the law into their hands with impunity, and publicly lynch or flog other citizens. But another aspect of this debate is that should the law itself allow for punishing certain cultural preferences for food? Are we any different from Saudi Arabia then? Can the state, or worse, the cow vigilantes determine what I should eat or store in my fridge? Should a law criminalise eating anything? Can the freedom of choice be so easily trumped by cultural majoritarianism? Can we permit modern democracies to subsume majoritarian tendencies?
The framers of the Indian Constitution recognised these cultural diversities, and tried to balance individual freedoms with religious and cultural diversity. Article 25 of the Indian Constitution provided for the freedom of conscience and free profession, practice and propagation of religion. Therefore, the meaning of secularism in the Indian context is fundamentally different from Western democracies such as France, where ostensibly the Church and the State are strictly separated. In reality, however, while the Western democracies say they are strictly secular, the roots of Anglo-Saxon and civil law systems lay deeply in canonical law.
The Indian Constitution is far more honest as it recognises and welcomes these differences. Nonetheless, the legislature and the executive often violate the spirit of the Indian Constitution. For instance, our individual freedoms are protected by reasonable restrictions, which inherently recognise that a certain threshold has to be crossed before they can be taken away. But the government repeatedly dilutes the reasonable restriction requirement to curb the right to dissent.
The freedom of choice and cultural and religious diversity enshrined in the Indian Constitution has been completely forgotten, and erased from public debates. During the Constituent Assembly debates, the issue of minority rights was discussed in great detail. Pandit Govind Ballabh Pant on August 27, 1947, captured the soul of independent India when he said: “I want all minorities to have an Honourable place in this Union of India. I want them to have full opportunities for self realisation and self-fulfillment. I want this synthesis of cultures to go on so that we may have a State in which we all live as brothers.”
Why must anything be banned because a particular cultural or religious majority does not approve? The rights of minorities evolved as a concrete concept under international law precisely so that the majoritarian tendencies of modern democracies could be curbed, and more equal societies would emerge. Even in Nepal, which was a Hindu nation until the recent Constitutional reform made it secular, allows for beef to be sold. Of course, it is buffalo and not cow. Buff momos are the most popular form of fast food in our neighbouring Himalayan kingdom. I must caveat my argument by adding that I find the ban on consumption of alcohol in countries like Saudi Arabia and Pakistan equally problematic.
As a student of law, I have always held a deep belief in the law as an instrument of social change and an equaliser. Like the French administrative court put the necessary brakes on the French government’s move to ban the burkini thus upholding the freedom of choice, let us hope there is a similar intervention in India on similar issues to halt the dangerous process of cultural majoritarianism and public lynching that has already been set in motion across the country.
Warisha Farasat practises law in Delhi
