Female Genital Mutilation [FGM] May Not Be Life Threatening, But A Permanent Mental, Emotional And Physical Scarring At A Woman:Chandrachud.J

Senior Advocate Abhishek Manu Singhvi insisted that the question of ‘essentiality’ of Female Genital Mutilation to the Dawoodi Bohra faith be considered by a constitution bench.The hearing in the Supreme Court on the challenge to the alleged practice of Female Genital Mutilation (FGM) purported to be followed by the Dawoodi Bohra community in India witnessed a canvassing of the concept of constitutional morality on Monday.At the previous hearings, the bench of Chief Justice Dipak Misra, Justice D. Y. Chandrachud and Justice A. M. Khanwilkar has noted that a religious practice, claimed to be an essential part of the doctrine of that faith, must also satisfy the test of constitutional morality to be entitled to the protection of Article 25.On Monday, Senior Counsel Abhishek Manu Singhvi, appearing on behalf of as many as 70,000 women belonging to the said community who stand by the practice of Female Circumcision (FC), indicated the October, 2017 order referring the Sabarimala Temple controversy to the constitution bench. In the said order, Chief Justice Misra had observed that morality, as envisaged in Article 25 or Article 26, is not an individualized or sectionalized perception subject to the varying ideals of every religion, but is based on the constitutional text and should be in consonance with Articles 14, 15, 17, 21, 38 and 51A.Dr. Singhvi juxtaposed it with Chief Justice J. S. Khehar’s remarks in the 2017 Triple Talaq judgment- that there is no doubt that the ‘personal law’ has been elevated to the stature of a fundamental right, that it is the constitutional duty of all Courts to protect all fundamental rights, and that it is judicially unthinkable for a Court to accept any prayer to declare as unconstitutional, for any reason or logic, what the Constitution declares as a fundamental right because in doing so the Court would be denying the rights expressly protected under Article 25.Chief Justice Misra reflected that while the latter spoke of the assumption of a Fundamental Right, the reference order in Sabarimala dealt with the denial of such an assumption.“Your Lordships may not apply constitutional morality to deny the relief of an essential practice because some notion of it violates Article 14 or 21...a larger concept of constitutional morality, which is not Article 25 morality, cannot displace an Article of the Constitution...Morality is nothing but a reasonable restriction like those in clauses (2), (3) and so on of Article 19...”, argued Dr. Singhvi.“Constitutional morality, for the purpose of Article 25, means something de hors the practice of a religion, some social repugnance or a law and order situation...”, he continued.“Even if the state does not enact a law under clause (2) of Article 25, the right under the Article is still subject to morality...it is not the morality of a mob but what the constitution envisages, the morality that flows from the preamble and Articles 15 and 21...even if Article 15 does not apply because we are dealing with a private entity, the principle of dignity, which is Fundamental to a human, still would...Suppose a religion says that the eldest daughter of a family has to become a ‘devadasi’? What if a religion allows the practice of polyandry? Can that be said to be conducive to the dignity of an individual just because the practice is an essential one?”, inquired Justice Chandrachud.“One test is that of permanence. If there is a permanent deprivation of life, as in the case of Sati or the cannibalism practiced by the Aghori tribe or even in the ‘devadasi’ ritual, then I bow down...But Your Lordships may not abolish polyandry which is permitted under the customary law in the north-east and the south. Your Lordships would normally wait for a legislation in such an event. To apply the tests of Articles 14 and 21 to an essential practice would amount to subjectivity...”, responded Dr.Singhvi.At this point, the Chief Justice weighed in, “the Constitution, as conceived by this court in the last 45 years, says that you have no right to cause injury to another. All tests of ‘essentiality’ and ‘integrality’ are related to material aspects or have a property orientation (reference made to the 1902 Bombay High Court decision in Jamshedji v. Soonabai where the bequest of property by a Parsi testator for the purpose of perpetual celebration of ceremonies like Muktad baj and Vyezashni was held to be a valid charitable gift, despite not being recognised under the charity law, on the ground that it is sanctioned by the Zoroastrian religion)...one’s right to autonomy is protected under Article 21 and to infringe the same (by compelling one to undergo FC) to enhance the colour of a woman’s skin and to make her more favourable to her husband?”“(FC) may not be life threatening but there is a permanent mental, emotional and physical scarring of a woman”, added Justice Chandrachud.Dr. Singhvi asked about the approach of the bench in the hypothetical scenario where Male...

Female Genital Mutilation [FGM] May Not Be Life Threatening, But A Permanent Mental, Emotional And Physical Scarring At A Woman:Chandrachud.J

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