On Tuesday, Senior Counsel Abhishek Manu Singhvi objected to the “illusory classification” between Male and Female Circumcision (MC and FC), which he argued to be of the same genus and specie and only variants of each other, and advanced that the PIL seeking a ban on the practice of FC is in the teeth of Article 14.
The Supreme Court bench of Chief Justice Dipak Misra, Justice D. Y. Chandrachud and Justice A. M. Khanwilkar had resumed hearing on the constitutionality of the alleged practice of Female Genital Mutilation (FGM) purported to be followed by the Dawoodi Bohra community in India.
“The practice of MC cuts across denominations and sects...having its origin in Judaism, it is also prevalent among the Jews...while 50% of the men in America undergo circumcision regardless of religion, 30% of planet earth’s male population practices MC under a religious mandate...Circumcision cannot be a per se noxious practice...”, submitted Dr. Singhvi.
“Article 14 includes equals being treated unequally and unequals being treated equally. For both MC and FC, the theological and scriptural sanctions are the same...the age at which the procedures are performed and the deemed lack of consent of the child are more or less the same...medically, MC involves a far higher degree of invasion than FC...in seeking a nullification of FC, this PIL invites a judicial classification which would be in contravention of Article 14, there being no legislation prohibiting the practice...the court may not enter into a territory where ex facie and Prima facie Article 14 is violated...”, he continued.
It was his case that there is no harm in applying Article 14 to this under-inclusion and voiding the classification sought to be created by the petition.
“Under-inclusion implies that there are other evils which have not been regulated. Not all evils in the society have to be regulated. You have to see the degrees of harm”, reflected Justice Chandrachud.
“There may be a large number of intoxicants which pose a danger to health but not all have to be regulated”, continued the judge.
“Article 14 tolerates under-inclusion but not over-inclusion”, concurred the Chief Justice.
“Let us take a chemical intoxicant ‘A’ and a mild variation of it ‘B’. When despite the closeness, classification becomes possible and only ‘A’ is banned, under-inclusion becomes apparent. Similarly, say, in Bihar, liquor is banned and the immediate substitute of liquor is not. Your Lordships have the power as well as the duty to apply Article 14 to declare void such under-inclusion”, insisted Dr. Singhvi.
The Senior Counsel questioned the basis of the classification between MC and FC and its nexus to the objective sought to be achieved.
“There are three tests- one, the origin, which is the same for both, being the tenets of Islam...two, the age; while MC is performed shortly after birth, FC is carried out around the age of 7...three, the mandatoriness is the same; while MC is universally prescribed under Islam, FC is stipulated only in the Fatimid school and a few others”, he elaborated.
He suggested that his submissions on the facet of Article 14 be read together with Articles 15 and 16 in as much as they deal with discrimination based on sex and religion.
Next, he submitted that the Supreme Court of New South Wales, in its 2016 judgment sentencing a mother and the community leader to imprisonment for FC, had noted that there is no physical harm caused by the procedure, only “likely psychological harm”.“And this conclusion was arrived at after a trial, after examination of evidence including affidavits of doctors, unlike a PIL proceeding...even the psychological harm was deemed to be tenuous and speculative...”, he advanced.
Indicating that this judgment also has now been overruled by the Court of Criminal Appeals, he showed the appellate court’s following observation- “we accept that a cut or nick could, in a particular case, amount to mutilation of the clitoris. The error we see in the direction given was that it included the words ‘to any extent’ insofar as it suggested that a de minimis injury would suffice”
“And here Your Lordships are required to ban FC, which is far from the Type 4 (FGM as defined by the WHO), in a PIL without a single woman showing injury”, commented the Senior Counsel.
He proceeded to depict that the only source for the inclusion of India in the WHO list of countries where Types 1, 2 and 3 FGM have been documented seems to be the account of one “Dr. X’s” interviews of some Dawoodi Bohra women in India, which has been described as “anecdotal” by the New South Wales Court of Criminal Appeals.
Dr. Singhvi, on Tuesday, also rebutted the claims of the petitioners that FC attracts liability under sections 3, 5, 7 and 9 of the POCSO for ‘penetrative sexual assault’, ‘aggravated penetrative sexual assault’, ‘sexual assault’ and ‘aggravated sexual assault’ respectively.
Submitting that ‘penetrative sexual assault’ is a sub-set of ‘sexual assault’, he suggested that section 2(1)(i) contemplates ‘sexual assault’ to have the same meaning as ascribed in section 7. Indicating that ‘sexual intent’ is an essential ingredient of the offence of ‘sexual assault’ in section 7, he argued that for an act to qualify as the offence, mens rea is undeniable.
It was his contention that ‘sexual intent’ is read into section 2(1)(f) which assigns to the phraseology ‘penetrative sexual assault’ the same meaning as under section 3 and hence, for the practice of FC, the question of punishment under section 4 does not arise.
“Your Lordships may not so read a provision as to attach strict liability to it unless it is very important. Otherwise, it shall be the anathema of criminal jurisprudence”, Dr. Singhvi stated.
*In the same thread, there was a discussion on the 1964 apex court judgment in State of Maharashtra v. Mayer Hans George, where it was observed that besides the mere act of voluntarily bringing gold into India, any further mental condition or mens rea is not necessary to constitute an offence under the FERA. It was noted that the very object of the Act, as an instrument for the prevention of smuggling, would be frustrated if a condition were to qualify the plains words of the enactment, that the accused should be proved to possess the knowledge that he was contravening the law.
Dr. Singhvi denied that such an interpretation of mens rea could apply under the POCSO.
He explained that such a reading of the liability under the POCSO would be a threat to doctors and medical professionals. He also cited a hypothetical situation where one leaves their child in the care of a relative for a few days who bathes the child. Justice Chandrachud referred to section 41 of the Act which excludes the application of the ‘sexual assault’ provisions where a child undergoes medical examination or treatment with the consent of the parents or guardian.
Finally, he argued that the nine-judge bench in Justice K. S. Puttaswamy (2017), in holding the right to privacy to be a Fundamental Right under Article 21, has recognised the virtues of culture and home-rearing in respect of a child and accorded autonomy to the parents.
“Privacy has two facets- the autonomy of an adult, and that of a child which is super-imposed by the culture of the immediate family, the relatives and the community within which they live. And this is without the supra-added push of Article 25 and the rights of a minority...child rearing is different from brutality or perversity...how is it possible to say that the consent of the child is ignored when Article 8 of the European Convention of Human Rights, which speaks of one’s right to their private and family life, has been relied on in the privacy judgment?...that is why a legislation and a level of abhorrence is necessary before Your Lordships interfere...a public authority cannot intrude in my home, my family life...I am arguing that this PIL is an invasion of my privacy...”, he concluded for the day.