Day 2 Arguments
Ban on Female Genital MutilationJuly 30th, 2018
The three-judge Bench headed by CJI Dipak Misra resumed hearings at 3.15 P.M.
In the last hearing, Ms. Indira Jaising had argued that female genital mutilation (FGM) violates Section 3(b) of the Protection of Children from Sexual Offences Act (POSCO). During the same hearing, Mr. Abhishek Manu Singhvi had argued that female circumcision is an essential practice of the Dawoodi Bohra community and is protected under Articles 25(1) and 26(b) of the Constitution. Note how while Mr. Singhvi refers to the practice as female circumcision, Ms. Jaising refers to it as FGM.
Today, lawyers Ms. Indira Jaising and Mr. Rajesh Khanna made arguments for banning the practice.
Fundamental rights violation
Mr. Khanna and Ms. Jaising claimed that FGM violates women’s fundamental rights to privacy, see Puttaswamy and Article 21, and equality, see Articles 14 and 15.
Regarding privacy, Mr. Khanna submitted that FGM is performed mostly on girls below the age of fifteen, who have not consented to being circumcised. Further, he submitted that it is not conducted for medical purposes.
Ms. Jaising submitted that FGM is discriminatory against women and girls, noting that it violates their right to dignity. CJI Dipak Misra concurred, questioning why women have to undergo this practice to make themselves favourable to their husbands. He observed that the practice lacks “gender sensitivity”.
Human rights violation
Mr. Khanna submitted that the UN and the World Health Organization consider female genital mutilation a human rights violation. He specifically referred to the UN General Assembly Resolution on the elimination of female genital mutilation and the duty it places upon member states to take steps in this regard.
Responding to claims that FGM is a religious practice
During the last hearing, Mr. Singhvi had defended the practice as an essential religious practice for the Dawoodi Bohras and hence protected under Articles 25 and 26 of the Constitution. Today, Mr. Khanna and Ms. Jaising responded. Notably, they argued religious freedom guaranteed by the Constitution is subject to certain limitations. Secondly, Mr. Khanna pointed out that the religious freedom guaranteed by the Constitution is subject to health before listing the health complications associated with FGM. He listed bodily complications, such infection and infertility. He also listed mental health issues, such as Post Traumatic Stress Disorder and psychosexual disorders.
Ms. Jaising brought to the notice of the Court the problem of excommunication. She submitted that Dawoodi Bohra families who wish to opt-out of circumcising their girls, are threatened with excommunication. She gave an example of a Dawoodi Bohra who was refused a proper burial. The threat of excommunication is a form of forced coercion and hence infringes upon the right to personal liberty, Ms. Jaising submitted.
Ms. Jaising tried to argue that female circumcision is not an essential practice of the Dawoodi Bohra community. Ms. Indira Jaising pointed out that Dawoodi Bohras continue to live in countries where it has been outlawed, such as UK and Australia. Further she cited various anjumans (organizations) in Islamic countries that have banned the practice.
Mr. Khanna also questioned whether FGM ought to be considered as essential to the Dawoodi Bohras. He questioned whether FGM could be associated with any particular religion, citing that it is practised across many religions. Next, he cited Muslim scholars who refute female circumcision’s association with Quran.
Concluding remarks
Justice Chandrachud observed that while some rationale can be found for male circumcision, there seems to be no scientific or medical basis for female circumcision.
Ms. Jaising argued that a combined reading of POCSO and the Indian Penal Code makes FGM a criminal offence since it involves the non-consensual touching of female genitals. She submitted that exceptions can only be made for medical purposes and that FGM is not a medical practice.