Female Genital Mutilation Affects Health; Can't Be Compared With Circumcision : Supreme Court In Sabarimala Reference Hearing

During the hearing of the Sabarimala reference, the Supreme Court on Thursday orally voiced concerns about the practice of Female Genital Mutilation (FGM) among sections of the Dawoodi Bohra community.

The petitions challenging FGM are tagged along with the Sabarimala reference, since the Constitutional issues relating to Articles 25 and 26 considered by the 9-judge bench have an impact on this matter.

Senior Advocate Siddharth Lutha, appearing for the petitioners opposing FGM, told the bench that the practice is done on young girls aged 7 years, and it causes an irreversible change in their bodies, which will affect their sexual and reproductive health. He argued that many families follow the practice because of the fear of excommunication if they do not adhere to it.

Luthra argued that this practice cannot be claimed as an essential religious practice, and cannot be covered by the rights of a denomination under Article 26.

Justice Joymalya Bagchi observed that many arguments may not be necessary, as the practice would be hit by the ground of "health" under Article 25. As per Article 25, a religious practice can be restricted on the ground of health, apart from public order and morality.

"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," Justice Bagchi said. Concurring, Luthra added that the practice results in the removal of the skin surrounding the clitoris, resulting in the irreversible loss of at least 10,000 nerve endings. "It is mutilation of a vital organ of the female body, and it directly impacts physical health, reproductive health and emotional health," Luthra said. "And sexual autonomy," Justice Bagchi supplemented.

"Where a practice intrudes into bodily autonomy and mutilates a vital organ, it necessarily falls foul of the limitations under Articles 25 and 26, namely public order, health and morality," Luthra added. He added that 59 countries have banned it.

Justice Nagarathna observed that the practice would be hit by the ground of "morality" also under Article 25.

Justice Bagchi said that the not just the secular consequence of excommunication for not following the practice, but also the effect on the "bodily and mental integrity" of the individual by the religious practice would require scrutiny.

Justice Varale added that the impact is "multi-fold". Justice Bagchi commented that it was to control on women's sexuality.

Luthra submitted that the bench should also consider the power structures operating and the social compulsions faced by the individuals within the community.

Chief Justice of India Surya Kant asked if Luthra was suggesting that, regardless of the interplay between Articles 25 and 26, if a religious practice is interfering with the other fundamental rights of an individual, then the Court should intervene. Luthra answered in the affirmative. He highlighted that the subjects of this practice are minors, who are incapable of giving consent.

Comparison with circumcision is inaccurate : Bench

At this juncture, Advocate Nizam Pasha intervened to say that there is no excommunication for not following FGM. He also disputed the description of the practice as "mutilation", but added that it was a factual aspect that would be dealt with separately.

He said that within the community, there are no worldly consequences for not following this practice, though the members may believe that there could be spiritual consequences.

Justice Bagchi posed a specific question if there is any consequence for breaching the direction of the Dai (Bohra religious head). Pasha repeated that there is no worldly consequence. "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 replied.

In this regard, he also drew a similarity with the practice of circumcision among men. Justice Bagchi then said, "From a public health perspective, there is a difference between circumcision and genital mutilation."

Pasha claimed that it was not mutilation, but was a practice similar to "hoodectomy" practised in the West. "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 this purpose was. "To increase the sexual pleasure of women," Pasha replied.

"It is just the opposite," Justice Amanullah said. Justice Amanullah also took objection to Pasha drawing parallels with circumcision. "Also, I'm surprised it is compared to circumcision; it is a different concept. Get your facts correct," Justice Amanullah told Pasha.

Justice Amanullah said, regardless of excommunication, since the religious practice is regarded as mandatory, the Court will have to test it.

A bench comprising 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 is hearing the matter.

Also from today's hearing - What Happens To Indian Civilisation If Every Religious Practice Is Questioned In Courts? Supreme Court In Sabarimala Reference