Female Genital Mutilation (FGM) Violates Preconditions Of Public Order, Morality And Health Imposed Under Article 25 And 26 Of Constitution, Submits AG

When the bench had sought Attorney General K. K. Venugopal’s opinion, he had categorically stated that the FGM violates the preconditions of public order, morality and health imposed under Articles 25 and 26 and the right to bodily integrity recognized by the Supreme Court nine-judge bench in Justice K. S. Puttaswamy (2017).“Female Genital Mutilation (FGM) is reprehensible and no one condemns it more than the Dawoodi Bohra community”, submitted Senior Counsel A. M. Singhvi on Tuesday before the Supreme Court.The bench of Chief Justice Dipak Misra and Justices A. M. Khanwilkar and D. Y. Chandrachud was hearing a PIL seeking the practice of FGM, prevalent among the members of the said community in India, to be declared unconstitutional.“FGM is a barbaric, African practice which has been mixed up with Female Circumcision (FC) that is practiced by largely two schools of Shias, including the Fatimid school to which the Dawoodi Bohras belong...50% of the male population in the USA undergoes circumcision, regardless of the religion, while 30% of the men world over are circumcised pursuant to the Islamic faith...Male and Female Circumcision have the same health benefits but the latter which is even less invasive than MC has been equated with FGM? All treaties and articles cited before Your Lordships pertain to FGM. It is like comparing chalk and cheese...a strong, prejudicial imagery was created (by the petitioners) to make FC seem akin to FGM...”, he continued.“‘mutilation’ is only an adjective...tell us what the practice (of FC) constitutes”, inquired Justice Chandrachud.Submitting that FC only involves a nicking of the prepuce, the foreskin covering the clitoris, Dr. Singhvi elaborated, “there is minimum invasion to the prepuce and no harm at all to the clitoris...it is carried out by trained persons who have been doing the same thing from generation to generation...now there is even a codified Standard Operating Procedure (SOP) which stipulates the safeguards and precautions...it is an index of the community’s self-respect and hence, they are very particular about it”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”.Justice Chandrachud reflected that FC is a medical procedure where the child is touched in the genitals by one who is not her mother or a doctor. He noted that a significant amount of trauma, pain and bleeding would transpire considering there is no qualified medical professional involved and hence, no use of anesthesia. Urging that modern progressive tests may not be applied to the issue at hand, Dr. Singhvi responded, “this practice had originated in the 11th century when there were no hospitals and it continues till date... where are the qualified professionals in rural India? Even today people are preferential towards midwives”The Senior Advocate suggested that the bench, in place of venturing into the essentiality of the practice under Articles 25 and 26, record a statement that FC be carried out only by a qualified medical professional. “No doctor would agree to do this...under the Hippocratic oath, the doctors will ask what the scientific justification for this is...MC stands on a different footing from this...it is carried out within 7 days of the birth...”, remarked Justice Chandrachud.“It does not require a major chunk of imagination to see that a child who is undressed and subjected to this procedure would relent...someone must hold the child down?”, asked the judge. When Dr. Singhvi sought to submit that in the West, women have performed surgery on the clitoral hood to enhance sexual pleasure, Justice Chandrachud dismissed the contention, stating that such procedures are undertaken voluntarily. “With consent, one may even undergo breast enhancement or cosmetic surgeries”, noted the judge.“To keep a child within the folds of the community, there are things that have to be done by the parents...the right to privacy cannot extend to birth...there is no question of consent where customs such as ‘Mundan’ or ear and nose piercing are concerned...these are things done lovingly...there is no barbarism...Your Lordships image of a wailing child would also hold true for vaccination...”, responded Dr. Singhvi. However, the bench did not seem impressed by the comparisons.Earlier in the course of the hearing, Senior Advocate Shyam Diwan had drawn the attention of the bench to resolutions passed by the ‘Anjumans’ of the Dawoodi Bohra community in the USA, UK, Canada, Australia, New Zealand and Africa, advising parents and guardians to refrain from practising FC in adherence to the national laws abolishing the same.Dr. Singhvi explained that it has been stated in a Hadith that “love for the land of abode is part of faith”, making it integral to the Islamic tradition to be law abiding citizens. “If there is a...

Female Genital Mutilation (FGM) Violates Preconditions Of Public Order, Morality And Health Imposed Under Article 25 And 26 Of Constitution, Submits AG

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