Fundamental Rights and Personal Freedoms

By Suhail Farooq

The recent order by the High Court of Jammu and Kashmir and Ladakh prohibiting veiled women lawyers from appearing in court has ignited a significant debate regarding individual freedoms, religious expression, and professional norms. This judicial decision, rooted in the Bar Council of India (BCI) rules, raises concerns about its alignment with the fundamental rights guaranteed under the Indian Constitution. This article explores the complexities of this issue, focusing on the intersection of dress codes, identity verification, professionalism, and inclusivity, while advocating for a more progressive interpretation of these principles.

The Intersection of Dress Codes and Rights

India’s Constitution guarantees its citizens the right to religious freedom under Article 25. This fundamental right enables individuals to freely profess, practice, and propagate their religion, subject only to considerations of public order, morality, and health. For many Muslim women, wearing a veil is not merely a cultural or aesthetic choice but an intrinsic aspect of their religious identity and personal modesty. The veil, often associated with deeply held beliefs, represents a form of self-expression that is integral to their way of life.The Bar Council of India’s dress code, which prescribes specific professional attire for lawyers, aims to ensure uniformity and decorum within courtrooms. However, it does not explicitly prohibit religious garments such as the veil. Interpreting these rules in a manner that excludes veiled advocates effectively disregards their constitutional rights. This approach not only undermines the spirit of Article 25 but also risks setting a precedent that could erode India’s pluralistic ethos.

Identity Verification: An Overstated Concern

One of the primary justifications for barring veiled advocates from courtrooms is the purported difficulty in verifying their identity. The court’s decision in the recent case of Advocate Syed Ainain Qadri hinged on this concern, as the judge declined to recognize her appearance due to the inability to confirm her identity. While the need for identity verification in legal proceedings is undeniable, it is crucial to recognize that there are multiple ways to address this issue without mandating the removal of the veil.Practical solutions include private identity verification conducted in the presence of female court officials or the use of government-issued photo identification documents. Such measures are already employed in various public and private sectors, including airports, educational institutions, and government offices, to accommodate individuals who wear veils for religious reasons. Implementing similar protocols in courtrooms would respect religious sentiments while ensuring procedural fairness.The insistence on unveiling as the sole means of identity verification reflects a lack of willingness to explore inclusive alternatives. This rigidity not only alienates veiled advocates but also reinforces stereotypes about their professional capabilities and commitment to legal ethics.

Professionalism vs. Inclusivity

Critics of veiled appearances in court often argue that professional decorum necessitates uniformity in attire. According to this perspective, the BCI’s dress code serves as a unifying standard that underscores the impartiality and integrity of the legal profession. However, this argument overlooks the fact that true professionalism is rooted in competence, ethical conduct, and respect for diversity rather than rigid adherence to a specific dress code.Legal professionals from diverse cultural and religious backgrounds bring unique perspectives to the judiciary, enriching its capacity to deliver equitable justice. Imposing a narrow interpretation of dress codes risks marginalizing capable lawyers who choose to wear veils as an expression of their faith. Such exclusion not only undermines the principle of equality but also deprives the legal profession of valuable talent.Inclusivity is a cornerstone of democratic societies, and the legal system, as a pillar of democracy, must lead by example. By accommodating veiled advocates, the judiciary can reaffirm its commitment to upholding fundamental rights and promoting a more inclusive legal profession.

Global Perspectives on Religious Expression in Courtrooms

Courts around the world have grappled with the issue of religious attire in professional settings, often opting for accommodative approaches. In countries such as the United Kingdom and Canada, legal professionals are allowed to wear religious garments, provided they do not impede their duties or contravene procedural requirements. These jurisdictions recognize that inclusivity and professionalism are not mutually exclusive but complementary ideals.For instance, the UK’s judiciary permits barristers and solicitors to wear hijabs, turbans, and other religious attire, reflecting its commitment to diversity and equal opportunity. Similarly, Canada’s courts have upheld the right of individuals to wear religious symbols, emphasizing the importance of balancing institutional norms with individual freedoms. These examples highlight the feasibility of adopting inclusive practices without compromising the integrity of judicial proceedings.India, with its rich history of pluralism and constitutional commitment to secularism, has an opportunity to draw inspiration from these global practices. By embracing a more accommodative stance, the judiciary can set a precedent that harmonizes professional norms with individual rights.

A Call for Progressive Interpretation

The judiciary plays a pivotal role in safeguarding fundamental rights and setting the tone for a more inclusive society. In the context of veiled advocates, this responsibility entails interpreting the BCI rules in a manner that upholds constitutional principles rather than undermining them. Courts must recognize that the exclusion of veiled lawyers from courtrooms is not merely a matter of dress code compliance but a broader issue of social justice and equality.To achieve this balance, the judiciary and the Bar Council of India should consider revising the existing dress code to explicitly accommodate religious garments, including veils. Such revisions could outline clear guidelines for identity verification and courtroom decorum, ensuring that professional standards are maintained without infringing on individual freedoms. Additionally, training programs for judges and court staff on cultural and religious sensitivity could foster a more inclusive judicial environment.

Conclusion

The High Court’s decision to bar veiled advocates from appearing in court raises profound questions about the balance between professional regulations and fundamental rights. Denying veiled lawyers the opportunity to represent their clients effectively excludes a section of society based on their personal beliefs, undermining the principles of equality and justice.India’s judiciary, as a guardian of constitutional values, must prioritize inclusivity and diversity in its practices. By adopting progressive interpretations of dress codes and implementing practical solutions for identity verification, the legal system can uphold the rights of veiled advocates without compromising procedural fairness. This approach would not only reinforce India’s commitment to pluralism but also strengthen public confidence in the judiciary as an institution that values equity and justice above all.It is imperative that the judiciary rises to this challenge, setting an example for other institutions and reaffirming its role as a champion of fundamental rights. In doing so, it can pave the way for a more inclusive and equitable society, where individuals are free to pursue their professional aspirations without fear of discrimination or exclusion.

Views expressed in the article are the author’s own and do not necessarily represent the editorial stance of Kashmir Observer

• The author is a third year law student from university of Kashmir and a writer.Suhail tweets at @Suhailfarooq105

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