Day 3 Arguments

July 31st 2018

The three-judge bench headed by CJI Dipak Misra resumed hearings at 11.00 A.M.

In the last hearing on 30th July, Senior Counsel Rakesh Khanna and Indira Jaising argued that FGM violates the right to privacy and the right to dignity of women. Further, Ms. Jaising argued that the practice cannot be an “essential practice” of the Dawoodi Bohra community, given that it has been outlawed in many countries where they reside.

 

Argument in favour of a ban

Today, Mr. Shyam Divan appearing for Dilshad Tavawalla and Shaheeda Kirtane, built on arguments made by Mr. Khanna and Ms. Jaising. Mr. Divan termed FGM as a “profoundly disturbing practice” and a gross abuse of human rights. He argued that it violates various fundamental rights, most explicitly the right to life and personal liberty under Article 21. Note that contained within the right life and personal liberty are the rights to personal dignity, bodily integrity and health.

Mr. Divan stated that FGM is penetrative sexual assault as per Section 3(b) of the Protection of Children from Sexual Offenses Act (POSCO). Under Section 3(b), any act where an object is inserted into the vagina of child is penetrative sexual assault. CJI Misra added that Section 3(b) is gender neutral.

Mr. Divan argued that the many Dawoodi Bohra community outside of India consider female circumcision an illegal practice. He cited Dawoodi Bohras located in the United States of America, Australia and Kenya. He urged the Court to criminalize FGM in India, in order to encourage religious leaders to discard the practice.

Mr. Divan discussed various international treaties which prohibit FGM. He discussed the Child Rights Convention, which inspired POSCO, and the FGM abolition UN Resolution.

Mr. Divan concluded with the health hazards associated with FGM. He said that even when medical professionals perform FGM, it results in long-term complications. He highlighted the several psychological problems associated with FGM. Finally he added that FGM has no known health benefits and that it is irreversible.

 

Argument against a ban

Mr. Singhvi, representing the Dawoodi Bohra community, began his arguments by agreeing that FGM is a “contemptible and reprehensible” practice. He argued that petitioners are mistaken in labelling female circumcision as it is practiced in the Dawoodi Bohra community, as female genital mutilation.

Attorney General Mr. K.K. Venugopal concurred with Mr. Singhvi’s characterization of FGM, stating that FGM violates the right to bodily autonomy, a fundamental right under Puttaswamy.

Mr. Singhvi built on the distinction between female circumcision and female genital mutilation. He claimed that the term FGM mainly refers to circumcision as it practised in Africa. He submitted that 80% of the literature presented before the court is with respect to the African practice of FGM.

Mr. Singhvi opposed the argument that female circumcision is non-hygienic and unhealthy. He maintained that the community has developed a standard operating procedure and that the practice is generally performed by trained medical practitioners. Justice Chandrachud requested Mr. Singhvi to submit a medical manual outlining the procedure.

Mr. Singhvi claimed that female circumcision can have certain benefits. He pointed to some studies that correlate it to enhanced sexual pleasure. Mr. Singhvi drew an analogy with the western practice of performing plastic surgery on the clitoris.

Mr. Singhvi characterized the Dawoodi Bohra community as one of the most progressive and prosperous communities in India. He highlighted the community’s positive treatment of women:

• 99% female literacy rate
• Promotion of education for women by the establishment of new schools
• Community kitchens, which are intended to allow working women to spend less time cooking
• Women allowed to pray in the same mosques as men
• The practice of triple talaq, declared unconstitutional by the Supreme Court in 2017, was not practised by the Dawoodi Bohra community

 

The Bench asked Mr. Singhvi to continue his arguments during the next hearing.