Female Genital Mutilation Impacts Health, Can’t Be Equated With Circumcision: Supreme Court

New Delhi: The Supreme Court on Thursday expressed concern over the practice of Female Genital Mutilation (FGM) prevalent in some sections of the Dawoodi Bohra community during the hearing of the Sabarimala case before a nine-judge Constitution bench.

What is the case?

A nine-judge constitution bench, which was headed by chief Justice Surya Kant, during the hearing of the Sabarimala reference on Thursday orally voiced concerns about the practice of Female Genital Mutilation (FGM) among sections of the Dawoodi Bohra community.

The main reason for this is that the issues related to religious freedom (Articles 25 and 26) of the Constitution, currently pending before a nine-judge bench, will have a direct impact on this case.

The petitioners argue that the practice violates women's right to live with dignity. Supporters of the practice, on the other hand, say it is an integral part of their religious faith and they have the right to continue it under Article 25.

In such a situation, the Supreme Court is facing a sensitive issue because on one hand there is religious freedom under Articles 25 and 26, and on the other hand there is human dignity, health and sexual autonomy of women.

What did the advocate say?

Senior advocate Siddharth Luthra, who was  appearing for the petitioners opposing FGM, told the bench that the practice is performed on girls as young as 7 years and causes irreversible changes in their bodies, which impact their sexual and reproductive health.

He argued that many families follow this custom because they fear being ostracized from society if they do not. Luthra argued that this custom cannot be considered an essential religious practice and therefore should not be protected by the rights of any religious denomination under Article 26.

What did Supreme Court say?

At the same time, the oral remarks of Justice Joymalya Bagchi could prove to be the most important turning point in this case because he said that perhaps there would be no need for very complex constitutional interpretations to stop this practice because this practice can be banned only on health grounds under Article 25.

Justice Bagchi reminded that Article 25 of the Constitution, which provides for religious freedom, clearly states that religious freedom will be available only within the ambit of public order, morality and health.

"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. 

Agreeing with this, Luthra said that in this practice the skin around the clitoris is removed, causing irreversible damage to 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. 

He also said that 59 countries have banned it.

What did other Judge say?

Justice Nagarathna remarked that the practice would also be questionable on moral grounds under Article 25. Justice Bagchi said that the consequences of ostracism for not following the practice, as well as the impact of this religious practice on a person's physical and mental integrity, also needed to be examined.

Justice Varale expressed concern over its manifold impact while Justice Bagchi remarked that the basic purpose of the practice was to control the sexuality of women.

Luthra argued that the bench should also consider the power structures operating within the community and the social compulsions that people face.

What did Surya Kant say?

Chief Justice Surya Kant asked whether Luthra was suggesting that if a religious practice violates a person's other fundamental rights, the court should intervene despite Articles 25 and 26, to which Luthra replied in the affirmative.

Is it wrong to compare FGM with male circumcision?

It emphasized that the victims of this practice are minors who are legally incapable of giving consent. The bench also clarified that comparing it to male circumcision is incorrect.

Meanwhile, Advocate Nizam Pasha intervened and clarified that no member is expelled from the community for not practicing Female Genital Mutilation (FGM). He also strongly objected to the practice being defined as mutilation.