The hearing in the PIL praying for the practice of Female Genital Mutilation (FGM) to be declared unconstitutional on Monday witnessed some positive, feminist remarks from the Supreme Court.
“The principle of gender sensitivity is entrenched in the Constitution...a practice (FGM) which is engaged in solely to make a woman more appealing to her husband cannot be constitutional...in view of the numerous health hazards associated with it, FGM amounts to a violation of Article 21 which accords primacy to health...when you are thinking of affirmative action in favour of women, you cannot suddenly reverse the process...”, observed Chief Justice Dipak Misra.
Continuing, the judge remarked, “the practice has been imposed not on a class but the other sex...why should a lady be expected to make such efforts? Is she chattel? Or has she been subjugated so much that the only purpose of her being is to please her husband?”
Noting that the impugned practice, prevalent among the members of the Dawoodi Bohra community in India, infringes the Right to Privacy, recognised as a Fundamental Right in Justice K. S. Puttaswamy (2017) Judgment, Justice D. Y. Chandrachud weighed in, “one has supreme authority over genitalia...it is central to one’s identity, dignity and autonomy...”
On Monday, Senior Counsel Indira Jaising countered the attempt to justify the practice under the garb of the ‘Essential Practices’ doctrine, indicating that the practice of FGM attracts provisions of the IPC as well as the POCSO Act- “something that is declared criminal cannot be an ‘essential practice’...also, FGM is not practiced internationally. Several countries like England and Australia have abolished it by statute, pursuant to which this community residing in those countries has denounced the practice by their own ‘Anjumans’. The Islamic faith asks its followers to respect the law of the land where they reside, and hence, the practice has been abandoned in these countries...”
“Any touching of the genitals of a woman is an offence under the IPC and the POCSO, the only exception being medical purposes...even if a doctor or a ‘dai’ was to touch the genital parts for no medical purpose, it would attract the IPC... even if there is no special legislation in this respect, ‘hurt’ and special hurt cover FGM...”, continued Ms. Jaising.
She submitted that the children, on whom FGM is practiced, being minors and hence, having no agency of their own, even their guardians could not give consent for the performance of the procedure.
On the question of locus standi, she advanced, “I am representing a woman who has herself undergone this process...she is a lawyer and she has testified that she still, in her adult years, feels the trauma...”. She indicated a report which documents the first person accounts of the trauma faced by such women.
In response to the argument that the IPC and the POCSO both require penetration into the vagina while FGM relates to the clitoral hood, Ms. Jaising cited how studies in America have associated the part with the sensation of pleasure in women. Indicating Explanation 1 to section 375, IPC which includes the labia majora in the use of the term ‘vagina’, she suggested that ‘vagina’ must be understood to mean any part of the female anatomy.
She relied on section 42A of the POCSO Act to submit that it be read together with the IPC, in addition to and not in derogation of the IPC.
“There has been a long history of social reform within the Dawoodi Bohra community...the state of Maharashtra had passed the Bombay Prevention of Excommunication Act as a redressal for some boycotted members of the community (which was held to be unconstitutional by the majority opinion of the apex court in Sardar Syedna Taher Saifuddin Saheb; the reconsideration is pending before the court)...excommunication is the coercive reason for many parents to unwillingly subject their children to this practice...there is a chilling effect on people who are having to subject to this practice to avert expulsion by their religious creed...”, advanced Ms. Jaising. However, the bench did not seem inclined to venture into the issue of excommunication.
Rebutting the objection raised on the opposite side regarding the maintainability of the petition on the ground of Article 14, the Senior Advocate contended, “We only seek for the practice (of circumcision) to be declared unconstitutional so far as women are concerned and not for men...that does not mean that the petition should not be allowed...circumcision has proven health benefits for men, while it is a hazard for women...”
The bench concurred, with Chief Justice Misra distinguishing classification and over-inclusion, while Justice Chandrachud reflected that a legislation does not have to deal with all evils to be able to subdue some.
Earlier in the course of the hearing, Senior Counsel Rakesh Khanna had walked the court through the concept of FGM, how it is being argued to differ from the relatively less-invasive ‘Female Genital Cutting’ or ‘Female circumcision’ and its physical, emotional and psychological ramifications.
The World Health Organisation deems FGM as comprising all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.
Mr. Khanna indicated that the practice has no health benefits, that it causes impediments in the natural functioning of the body having long term consequences and the need for repeated surgery, that women who have undergone the procedure suffer, inter alia, painful urination, risk of infections and a higher rate of maternal death. Besides, there are mental health issues such as psychosexual problems, post-traumatic stress disorder and phobias.
He submitted that the only reason for the practice which is inferred on a perusal of the religious texts of the Dawoodi Bohra community is purity. He quoted portions from religious authorities asking the members to circumcise their daughters, not before the age of 7, and to “not cut it entirely” and to “retain part of it” because “it is better for their complexion”.
When the bench inquired about the constitutional perspective of the impugned practice, Mr. Khanna advanced that it violates Article 21- “Children as young as 3 or 7 years old are put through trauma...there are instances where they have bled so much that hospitals have found it difficult to save their life...(the cutting) is generally performed by midwives or other non-medical staff...”
Justice Chandrachud noted that the procedure is also in the teeth of Article 15 and that even the right to practice one’s religion under Article 25(1) is subject to public morality and health.