SC refers female genital mutilation plea to 5-judge constitution bench
The court said an order on the terms of reference would soon be passed.
New Delhi: A five-judge Constitution Bench of the Supreme Court will decide whether female genital mutilation/circumscision is an integral aspect of religious practice of the Dawoodi Bohra community of Islam for over 1,000 years and whether court can interfere with this faith. The court said an order on the terms of reference would soon be passed.
A three-judge bench comprising Chief Justice Dipak Misra and Justices A.M. Kanwilkar and D.Y. Chandrachud hearing petitions filed by advocate Sunita Tiwari and others, seeking a declaration that the practice amounts to violation of a woman’s right to life and dignity. The top court referred the matter for adjudication by a Constitution Bench after senior counsel Mukul Rohatgi pleaded for such a reference and this was supported by attorney-general K.K. Venugopal.
On behalf of Bohar community, it was clarified that it was incorrect to say that girls in Bohra community are subjected to female genital mutilation as only circumcision was being done which is harmless than female genital mutilation. She said this practice is an essential aspect of Islam and cannot be subjected to judicial scrutiny.
Quoting from religious texts, it was demonstrated that this practice has been followed for centuries.
The petitioner had alleged that female genital mutilation or “khatna” is a practice prevalent among the Dawoodi Bohra religious community of Shia sect, as it is a crime and punishable offence. This practice is an age-old tradition in this community to mark the arrival of womanhood.
The community however rejected the charge that FGM/circumscision was a crime.
The Centre had supported the petitioners stating that the FMG is a crime with a punishment of seven years of imprisonment “under the existing laws don’t permit FMG and that the court can further clarify on the matter and issue guidelines. It also pointed out that the United Nations has deprecated this practice and FMG has been banned in USA, UK, Australia, Canada and 27 African countries and it should not be allowed to continue.
The petitioner have described the practice as “inhuman” and “violative” of girl’s rights under the Constitution’s Article 14 (Right to Equality) and Article 21 (Right to Life). They sought a direction to declare it illegal and unconstitutional, non-compoundable and a non-bailable offence. They have asked the court to frame guidelines to curb the practice and to issue directions to the state police chiefs to take action against those who indulge in such practice.
Rejecting the petitioner’s charge, counsel said even the Centre had conceded that there is no data as to how many persons are affected by this practice. Only a miniscule population of around five lakh Bohra community members follows this practice, which is essential and integral to their faith. Except a minor physical inconvenience to signify purity, there is no major physical injury caused in FGC.