Mathanki Narayanan is a student at O.P. Jindal Global University.
Over the past few decades, the hijab has become the subject of social and legal debates centered upon the right to religion and its tensions with secularism. From the hijab row in Karnataka to Leyla Sahin in Turkey, these conflicts have manifested in different forms across various jurisdictions. This article seeks to critically engage with the UN Human Rights Committee’s decision in Hudoyberganova v. Uzbekistan to show that while this decision has reaffirmed religious freedoms, it also overlooked an important opportunity to bolster their scope by incorporating the intersectional element of gender.[i]
Lifting the Veil- The Limited Success of Hudoyberganova v. Uzbekistan
Raihon Hudoyberganova was a Muslim woman studying at the Tashkent State Institute in Uzbekistan. In the second year of her studies, she began to wear a hijab. Over the course of many months, starting in September 1997, she was subjected to increasingly discriminatory actions by the Institute, which culminated in her exclusion in 1998. She filed a complaint before the Human Rights Committee (HRC) after having exhausted all domestic remedies to no avail. The HRC found that there had indeed been a violation of Article 18 of the International Covenant on Civil and Political Rights (ICCPR) which protects the right to religion. Additionally, individual opinions were presented by three of the Committee members: Solari-Yrigoyen, Sir Nigel Rodley, and Ruth Wedgwood.
Solari-Yrigoyen’s individual opinion points out that Hudoyberganova had failed to dispute the Chairman’s statement that Islam does not prescribe religious attire. This line of argumentation steers discourse towards religious practices and the examination of their essentiality to the religion itself. However, the question of women’s agency is also one that is central to this debate. For example, in Resham v. State of Karnataka, the framing of the issue—as being one underpinned by religious imperatives in opposition to the secular duties of the state—had the effect of relegating the agency of Muslim women to a secondary plane.[ii] Wedgwood’s opinion distinguishes itself from the previous ones in that it places importance on the State’s secular, educational obligations towards ensuring effective pedagogy; as per her reasoning, religious freedoms must therefore be balanced against secular imperatives. However, ostensibly secular policies might have the inadvertent effect of generating indirect discrimination.
Intersectionality and Indirect Discrimination
In positing that the prohibition of religious attire is an extension of the State’s secularism, Wedgwood fails to acknowledge that these restrictions could detract from the rights of one community far more than others. This also evidences how a purely formalistic approach can lead judicial reasoning astray from its aims of securing justice and equality for all. If judicial decisions are to be well-founded, they must incorporate elements of intersectionality and multiculturalism when necessary.[iii] For instance, the lived experiences of a black woman cannot be seen simply as a product of her being black and her being a woman disjunctively.[iv] The life of Hudoyberganova cannot thus be viewed as an additive result of her being a Muslim and her being a woman. As a Muslim woman, she experiences the impact of rights-limitation in a manner that compounds both of these social identities. In failing to acknowledge the intersectional impact of discrimination, the State protects marginalized communities only to the extent that their experiences coincide with those of the other identities whose intersection they exist within.[v] By choosing to reaffirm Hudoyberganova’s right to religion on the basis of her Muslim identity, the HRC viewed discrimination as perpetuating along a “single categorical axis.”[vi] If the axis is oriented around gender, then the Muslim woman is excluded due to her existence as a minority.[vii] On the other hand, if the axis is oriented around religion, then the Muslim woman is again pushed into the minority by Muslim men who are seen as being representative of Islam.[viii] By orienting this axis around religion, the HRC erases the gendered aspects of State discrimination from its analysis. At the end of the day, it is the Muslim woman who wears the hijab, not the Muslim man. Furthermore, this approach also espouses the view of justice as the normative outcome of anti-discrimination laws. The interference brought by characteristics such as religion and gender are perceived as being process-based deviations from outcomes that would otherwise be fair; accepting this would effectively circumvent the need for the State’s commitment to substantive equality.[ix]
While accomplished in a qualified manner, the fact that the HRC strengthened the freedom of religion cannot by itself be sufficient to abstain from addressing the shortcomings of this case. Hudoyberganova v. Uzbekistan went on to be cited in S.A.S. v. France,wherein the European Court of Human Rights upheld the validity of a French law prohibiting the wearing of clothing that covered the individual’s face in public.[x] If this article acts as a precautionary critique of the HRC’s failure in Hudoyberganova, then S.A.S. v. France illustrates the practical impact of the failure to adopt an intersectional standpoint and its resultant effect vis-à-vis indirect discrimination. The HRC in Hudoyberganova could perhaps have based its decision to invalidate the limitations upon a proportionality analysis, instead of simply attributing it to the absence of justifications by the State. Tests for ascertaining indirect discrimination also require a proportionality analysis. In doing so, it can be shown that reasonable accommodations, such as permitting the wearing of hijabs on a case-by-case basis, do not have the effect of obliterating secular imperatives.[xi]
Conclusion
The success of Hudoyberganova v. Uzbekistan has been qualified by two major issues: firstly, its reluctance to explain the success of religious freedom in this instance as being more than just a result of Uzbekistan’s failure to justify its limitations; and secondly, its failure to employ an intersectional analysis of the impacts of such a limitation. The case could have set a strong precedent for future cases involving the freedom to manifest one’s religion by incorporating a gendered approach through intersectionality. By adopting an intersectional approach to the impact of rights limitation on Muslim women, the human rights corpus stands to make meaningful progress in its journey toward becoming a transformational and multicultural subset of law.
[i] CCPR/C/82/D/931/2000 (5 November 2004).
[ii] 2022 SCC OnLine Kar 1602; Gautam Bhatia, Between Agency and Compulsion: On the Karnataka High Court’s Hijab Judgment, Indian Constitutional Law and Philosophy (Mar. 15, 2023), https://indconlawphil.wordpress.com/2022/03/15/between-agency-and-compulsion-on-the-karnataka-high-courts-hijab-judgment/.
[iii] Makau Mutua, The Complexity of Universalism in Human Rights in Human Rights With Modesty: The Problem of Universalism 51-64 (András Sajó ed., 2004).
[iv] Adrien Katherine Wing, Brief Reflections toward a Multiplicative Theory and Praxis of Being, 6 Berkeley Women’s L. J. 181, 194 (1991), https://lawcat.berkeley.edu/record/1113675/files/fulltext.pdf.
[v] Kimberlé Crenshaw, Demarginalising the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139, 143 (1989), https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1052&context=uclf.
[vi] Id. at 140.
[vii] Maleiha Malik, Complex Equality: Muslim Women and the ‘Headscarf’, 68 Droit et société 127, 135 (2008), https://www.cairn.info/revue-droit-et-societe1-2008-1-page-127.htm.
[viii] Id.
[ix] Crenshaw, supra note 9, at 139.
[x] [2014] ECHR 695; Shreyas Alevoor, The Hijab Case Through the Lens of Proportionality, Indian Constitutional Law and Philosophy (Feb. 15, 2022), https://indconlawphil.wordpress.com/2022/02/15/guest-post-the-hijab-case-through-the-lens-of-proportionality/.
[xi] Shreyas Alevoor, The Hijab Case Through the Lens of Proportionality, Indian Constitutional Law and Philosophy (Feb. 15, 2022), https://indconlawphil.wordpress.com/2022/02/15/guest-post-the-hijab-case-through-the-lens-of-proportionality/.
