During the Sabarimala reference hearing, the Supreme Court orally observed that Female Genital Mutilation may fall within the constitutional limitations of health, public health and morality under Articles 25 and 26.
Supreme Court Raises Concern Over FGM During Sabarimala Reference
The Supreme Court on Thursday orally expressed concern over the practice of Female Genital Mutilation (FGM) among sections of the Dawoodi Bohra community, while hearing the Sabarimala reference.
The petitions challenging FGM are tagged with the Sabarimala reference, as the constitutional questions concerning Articles 25 and 26 being examined by the 9-Judge Bench are relevant to the issue.
The Bench comprises Chief Justice of India Surya Kant, Justice BV Nagarathna, Justice MM Sundresh, Justice Ahsanuddin Amanullah, Justice Aravind Kumar, Justice Augustine George Masih, Justice Prasanna B Varale, Justice R Mahadevan and Justice Joymalya Bagchi.
Petitioners Say Practice Affects Sexual And Reproductive Health
Senior Advocate Siddharth Luthra, appearing for the petitioners opposing FGM, submitted that the practice is performed on girls as young as 7 years old and results in an irreversible alteration of their bodies.
He argued that the practice affects the sexual and reproductive health of young girls. He also submitted that many families follow it because they fear excommunication if they do not comply.
Luthra contended that FGM cannot be treated as an essential religious practice and cannot be protected as a denominational right under Article 26.
Justice Bagchi Refers To Health Limitation Under Article 25
During the hearing, Justice Joymalya Bagchi observed that the Court may not be required to examine several other rights in detail, as FGM may itself be hit by the ground of “health” under Article 25.
Article 25 permits restrictions on religious practices on the grounds of public order, morality and health.
Justice Bagchi observed:
“As far as female genital mutilation is concerned, we may not even need to travel into all these other rights. The expressions “health” and “public health” themselves may be sufficient.”
Agreeing with the observation, Luthra submitted that the practice involves removal of skin surrounding the clitoris, resulting in irreversible loss of at least 10,000 nerve endings.
He said:
“It is mutilation of a vital organ of the female body, and it directly impacts physical health, reproductive health and emotional health.”
Justice Bagchi added:
“And sexual autonomy.”
Court Discusses Bodily Autonomy And Morality
Luthra further submitted that where a religious practice interferes with bodily autonomy and mutilates a vital organ, it violates the limitations imposed under Articles 25 and 26, namely public order, health and morality.
He also submitted that 59 countries have banned the practice.
Justice BV Nagarathna observed that the practice may also be hit by the ground of “morality” under Article 25.
Justice Bagchi further noted that the scrutiny may not be limited only to the secular consequence of excommunication for non-compliance. According to him, the effect of the practice on the bodily and mental integrity of the individual would also require examination.
Justice Prasanna B Varale added that the impact is “multi-fold”. Justice Bagchi also remarked that the practice appeared to be linked to control over women’s sexuality.
Luthra submitted that the Bench should consider the power structures within the community and the social compulsions faced by individuals.
CJI Asks About Interference With Other Fundamental Rights
Chief Justice of India Surya Kant asked whether Luthra was suggesting that, irrespective of the relationship between Articles 25 and 26, the Court should intervene if a religious practice interferes with other fundamental rights of an individual.
Luthra answered in the affirmative. He emphasised that the persons subjected to the practice are minors and are incapable of giving consent.
Bench Says Comparison With Circumcision Is Inaccurate
At this stage, Advocate Nizam Pasha intervened and submitted that there is no excommunication for not following FGM. He also disputed the description of the practice as “mutilation”, while stating that the factual aspect would be addressed separately.
Pasha submitted that there are no worldly consequences within the community for not following the practice, although members may believe that spiritual consequences could follow.
Justice Bagchi asked whether any consequence follows for breaching the direction of the Dai, the Bohra religious head. Pasha replied that there is no worldly consequence.
He submitted:
“For instance, if I do not offer namaz, there is no punishment imposed upon me, however mandatory namaz may be. Similarly, there is no excommunication attached to non-observance of this practice. There is no worldly sanction in the Dawoodi Bohra faith for non-adherence to this practice. No excommunication, no religious sanction.”
Pasha also attempted to draw a comparison with male circumcision.
Justice Bagchi responded:
“From a public health perspective, there is a difference between circumcision and genital mutilation.”
Advocate Says Practice Is Symbolic; Bench Disagrees With Comparison
Pasha submitted that the practice is not mutilation and described it as similar to “hoodectomy” practised in the West.
He said:
“The description is disputed. It is not mutilation. It is described within the community as a symbolic circumcision. The procedure referred to is known in the West as hoodectomy, involving the clitoris.”
Justice Nagarathna asked what the objective of the practice was. Pasha replied:
“To increase the sexual pleasure of women.”
Justice Ahsanuddin Amanullah responded:
“It is just the opposite.”
Justice Amanullah also objected to the comparison with circumcision and told Pasha:
“Also, I’m surprised it is compared to circumcision; it is a different concept. Get your facts correct.”
Justice Amanullah further observed that regardless of whether excommunication is involved, if the religious practice is considered mandatory, the Court would have to test it.
Case Context
Matter: Sabarimala reference hearing
Issue Discussed: Challenge to Female Genital Mutilation among sections of the Dawoodi Bohra community
Bench: Chief Justice of India Surya Kant, Justice BV Nagarathna, Justice MM Sundresh, Justice Ahsanuddin Amanullah, Justice Aravind Kumar, Justice Augustine George Masih, Justice Prasanna B Varale, Justice R Mahadevan and Justice Joymalya Bagchi
Counsel For Petitioners Opposing FGM: Senior Advocate Siddharth Luthra
Intervening Counsel: Advocate Nizam Pasha
Legal Provisions Discussed: Articles 25 and 26 of the Constitution of India
