The Jammu & Kashmir and Ladakh High Court’s decision to disallow a female Muslim lawyer from arguing in court because she was wearing a face veil is violative of her constitutional rights, according to legal experts that Scroll spoke with.
On November 27, advocate Syed Ainain Qadri, appearing before the High Court in a domestic violence case, was requested by Justice Rahul Bharti to remove her face veil. Qadri refused, saying that she had the right to cover her face and that the court cannot insist that she remove it.
Bharti did not allow her to appear in the case that day on the ground that the court could not verify the advocate’s identify “both as a person as well as professional”.
Lawyers that Scroll spoke with said that courts verify the identity of lawyers and other persons entering court premises by checking their identity cards, not by looking at their faces. There is also no bar on a face cover in the dress code prescribed for lawyers by the Bar Council of India rules.
What happened in the High Court
After refusing to allow Qadri to argue, Bharti had on November 27 directed the registrar general of the High Court to confirm if women advocates were legally permitted to appear with their face covered and if they could refuse a request from the court to remove it.
In the subsequent hearing in the matter, on December 6, Justice Moksha Khajuria Kazmi noted that the registrar general, in a report, had cited the dress code for female advocates detailed in the Bar Council of India rules.
The dress code stipulates that female lawyers must wear a black full-sleeve jacket or blouse with a white collar and bands, paired with an advocate’s gown. Alternatively, they may wear a saree, long skirt, churidar-kurta or traditional attire in white, black, grey or subdued colours, paired with a black coat and bands.
The rules preface the dress code with the requirement that advocates’ dress “shall be sober and dignified”.
Kazmi concluded that the rules don’t permit female lawyers to appear in court with their faces covered.
Qadri did not appear in the hearing. Her clients were represented by a different lawyer.
Rules not exhaustive
However, experts pointed out that the Bar Council dress code is not exhaustive and does not expressly bar lawyers from covering their face in court. “The rules only specify what lawyers have to wear, not what they cannot wear,” said Delhi-based Advocate-on-Record Ibad Mushtaq. “The only requirement is that the attire must be sober and dignified.”
Mushtaq pointed out that dress code expressly mentioned “traditional attire”. According to him, “a veil can definitely be considered part of traditional attire.”
The veil or niqāb is a part of the attire worn by some Muslim women across the world. Many Indian women cover their faces in public as a customary practice, regardless of their religion.
Sociologist and legal researcher Kalpana Kannabiran agreed. “A female lawyer does not upset the decorum of a court by wearing a veil,” she told Scroll.
Mushtaq added that the rules don’t necessitate that advocates must always show their face in court.
In the face of no explicit bar, the dress code ought to have been interpreted in a manner enabling the female advocate to appear in court, Kannabiran said. “The rules cannot be interpreted in a way that takes away the right of the advocate,” she said. “This is a basic principle of natural justice.”
Other ways of verifying identity
Courts usually don’t insist on looking at the faces of lawyers in order to ascertain their identity, lawyers told Scroll.
The notion that identity can only be confirmed by viewing someone’s face is “both absurd and reductive”, according to Supreme Court advocate and legal scholar Saif Mahmood. “No judge asks for an identification,” he said. “Secondly, even if a lawyer is to be identified, they will be identified through official documentation or bar council records and not by looking at their face.”
He added that during the Covid pandemic, lawyers were directed to mandatorily wear masks while appearing in court. “How were they identified then?” he asked.
Mushtaq agreed. “When we were arguing before court in a mask during the pandemic, no one was asking us to take off the mask and identify if we are advocates,” he said.
He pointed out that lawyers cannot enter a court without showing their bar council membership identity card. “Women have to go inside a curtained area where a female security guard checks them before they enter court premises,” he said. “The security at the entrance of the court could identify whether the ID card matches the face of the lawyer or not. The court doesn’t have to undertake such an exercise.”
There are several ways to verify someone’s identity rather than looking at their face, he said. “You put your fingertip on a scanner and your Aadhar will show up,” he cited as an example.
He called Bharti’s action a case of “finding a problem where none existed”.
According to him, instead of issuing a direction to the registrar to confirm a female advocate can cover her face in court or not, Bharti could have simply ordered for a female staff person of the court to verify the advocate’s identity in a private space.
Kannabiran agreed. “No one would have questioned the judge if he would have devised another way of ascertaining the lawyer’s identity and let her appear in court,” she said.
Discriminatory, violative of rights
Legal experts flagged the High Court’s bar on Qadri as discriminatory and violative of her rights. They also warned of the potential chilling effect the court’s restriction may create for other female lawyers who may wish to appear in court with their faces covered.
The court had violated Qadri’s fundamental rights under Articles 14 (equality before law), 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), 19(1)(g) (right to practise any profession) and 21 (protection of life and personal liberty), according to Kannabiran. “Look at the effect of the court ruling: it essentially evicted a female lawyer from the court hall,” she said. “Constitutional courts are bound by norms of equality and non-discrimination.”
Mushtaq agreed, saying that Qadri’s ability to practise in courts was adversely affected. “A woman practising in your court says that she doesn’t want to take off her veil, but you force her to take it off and then not allow her to practise – that hurts her dignity, her choice and her right to practise as an advocate,” he said. “Under the guise of a rule supposedly being silent on the matter, you’re effecting her constitutional and statutory rights.”
Mahmood was even more scathing of the High Court’s decision. “I think it is an appalling display of institutional bias,” he said. “This reeks of discrimination cloaked in a pretext of ‘identity verification’.”
He also flagged the potential adverse effect of this move for other lawyers like Qadri. “By targeting a Muslim female lawyer, the High Court has set a dangerous precedent for exclusionary practices that have no basis in law or logic,” he said.
Calling the ruling one that “that affects not one person but an entire class”, Kannabiran said: “This is not just a question of one person being excluded.” She added, “The court has obstructed any Muslim women wearing a face veil from appearing in court.”
