Day 5 Arguments

August 27th, 2018

A three-judge Bench is hearing a petition calling for the ban of female genital mutilation. On the one hand, the practice appears to violate the fundamental rights of women and, on the other, it appears to be protected under freedom of religion. The Dawoodi Bohras actively practice circumcision and describe it is a hygienic, non-invasive procedure that both women and men of their community undergo.

In the previous hearing, Mr. A.M. Singhvi argued against a ban on the grounds that female circumcision is an essential religious practice for the Dawoodi Bohras. Today he continued his arguments and was joined by Ms. Meenakshi Arora, a lawyer representing a Dawoodi Bohra woman who opposes the ban.

 

Female circumcision, a non-invasive procedure

Mr. Singhvi and Ms. Arora both stressed that female circumcision, as practiced by Dawoodi Bohras, is non-invasive. They contended that it is neither an invasion of a woman’s right to privacy nor a serious health issue.

Ms Meenakshi Arora spoke on behalf of her client Nafisa Vahanvati, a Dawoodi Bohra woman who opposes the ban. Ms. Arora argued that the petitioners are misconstruing the practice of female circumcision in such a manner so as to suggest that it invades a woman’s privacy. She emphasized that female circumcision does no damage to a woman’s clitoris: ‘[it involves] snipping of the foreskin of clitoris and nothing more’.

Mr. Singhvi concurred and once again criticized the petitioners for using the phrase “female genital mutilation” to describe circumcision. He disputed the claim that anything called FGM exists among the Dawoodi Bohra community.  He went on to describe how female circumcision is performed by the community, emphasizing that the clitoris is never touched during the procedure. He exclaimed, ‘it is neither cruel, barbaric, nor crude’.

Justice Chandrachud intervened to say that the practice can leave a psychological scar on a minor since it involves the touching of their genitalia. Mr. Singhvi retorted, claiming to have the backing of 70,000 Dawoodi Bohra women who never suffered any psychological damage.

 

Freedom of religion

Mr. Singhvi continued his argument from the previous hearing, where he argued that female circumcision is protected under the freedom of religion guaranteed by Articles 25 and 26 of the Constitution.  Mr. Singhvi urged the Court to show restraint in adjudicating on the essential customs of a religion. He asked the Court to avoid using external standards for understanding and judging an essential custom of the Dawoodi Bohras.

Mr. Singhvi reminded the Court of his previous submissions, where he had described female circumcision as an essential age-old practice going back 1400 years. He argued that such practices should be considered religiously sovereign and immune from judicial interference. The Bench responded by saying that the Constitution envisages some restrictions on freedom of religion, namely public order, morality and health (see Articles 25 and 26).

Mr. Singhvi referred to the Supreme Court’s Shayara Bano judgement (Triple Talaq) to argue that the principle of ‘constitutional morality’ cannot infringe upon a religious practice. He said that the American concept of ‘constitutional morality’ could not be applied to religious practices protected under Article 25 and 26.

 

Concluding remarks

Mr. Singhvi quetioned how the Court could even be hearing a case on female genital mutilation, given the lack of concrete data. He submitted that neither any State records nor any National Crime Records Bureau data support the claim that FGM exists in India.

Next, he rhetorically submitted that the concerns relating to female circumcision are not gender specific and could be extended to male circumcision also. The Bench responded by stating that it would restrict itself to hearing the female circumcision issue, fearing that open debate would lead to discussing nose and ear piercings.

Mr. Singhvi concluded by remarking that a three-judge Bench was not equipped to rule on this matter. He asked the Bench to refer this case to a larger seven-judge Bench.