Day 6 Arguments

August 28th, 2018

Mr. A.M. Singhvi resumed arguments before the three-judge bench. Yesterday, Mr. Singhvi rhetorically questioned whether female circumcision could be considered independently of male circumcision. Today, he submitted that the Court could not apply different standards based upon gender for the same practice. He argued that female circumcision and male circumcision must be assessed together.

“There are two intoxicants made by slightly different chemicals but of same nature, then the Court cannot ban one of those in isolation without dealing with the other”, he submitted.

He termed female circumcision as a gender and age neutral practice, reminding the Court that in the Dawoodi Bohra community, both men and women are circumcised. Thereby, he challenged the notion that the practice violates Dawoodi Bohra womens’ right to equality, under Articles 14 and 15 of the Constitution.

He attacked the petition to ban female genital mutilation on the ground that there is no data supporting women who claim to be victims of the practice. He claimed to have the support of over 80,000 Dawoodi Bohra women who see it as an essential religious practice.

He submitted that the Protection of Children from Sexual Offences Act, 2012 (POSCO) provisions would not apply to circumcisions on female minors, as sexual intent, or mens rea, has to be read into the Act.  He said that criminal sexual intent is a necessary ingredient for attracting provisions of POCSO, otherwise well-meaning acts by medical professionals would also fall within the ambit of the Act. Justice Chandrachud corrected him by pointing out that Section 41 of the Act expressly excludes medical examination.

Mr. Singhvi argued that a minor’s consent can be presumed when family members take a decision for them. He further argued that the family enjoys a zone of privacy and autonomy with respect to a minor child. He alleged that the petitioner, by misconstruing the practice and asking for a ban, is invading this zone of privacy and autonomy enjoyed by the family.

Mr. Singhvi referred to Puttaswamy (the right to privacy case), page 509, to argue that personal intimacy and family space are protected under the right to privacy. He concluded by reiterating that the practice of female circumcision goes beyond freedom of religion and is integrally connected to the Dawoodi Bohra community’s right to life and dignity.