A Supreme Court bench comprising Chief Justice Dipak Misra, Justice A. M. Khanwilkar and Justice D. Y. Chandrachud on Monday heard the case on Female Genital Mutilation and said that the practice violates the 'bodily integrity' of a girl child. FGM is a practice wherein older Dawoodi Bohra Muslim women cut a part of younger girls' genitalia.
Senior Counsel Indira Jaisingh who was representing a petitioner said that FGM leads to an offence under Protection of Children from Sexual Offences Act (POCSO) 2012 and the Indian Penal Code.
“We have also prepared a report on the consequences it has on adult life and the trauma that stays. The act amounts to an offence under the IPC and the POCSO," she submitted before the apex court bench.
Attorney General K K Venugopal, who represented the centre said the Dawoodi Bohra Muslim women's tradition causes irreparable harm to the girl child and should be banned. He also noted that countries including the US, the UK, Australia and around 27 African countries have banned it already.
However, A M Singhvi who represented a group of Dawoodi Bohra Muslim women said that this matter should be referred to the constitution bench as it deals with the issue of a crucial practice of a religion which it needs to examine.
He submitted, “There is a distinction between FGM and female circumcision. The latter is a minute process which is practised by 2 Islamic communities. It is being supported by 95% of the women. This raises issues involving Articles 25, 26 and 29 as well."
To this the bench comprising of Chief Justice Dipak Misra, Justice A. M. Khanwilkar and Justice D. Y. Chandrachud maintained that FGM does come under offence defined under Section 3(b) of POCSO Act.
Singhvi responded by saying, "FGM is a practice which we do not support, circumcision is different. I can show texts dating back to the 10th century. The tests of ‘essentiality’ and ‘integrality’ (of the practice of female circumcision to the religion) for the purpose of Article 25 and 26 are satisfied."
“The ‘sati’ was also an ancient practice. But any such practice has to fulfil the conditions of public order and morality”, repeated the AG.
“The question is if one does not want it, can it be compulsorily imposed”, noted The Chief Justice. “Why should the bodily integrity of a woman be subject to some external authority? One’s genitals is an extremely private affair”, asserted Justice Chandrachud.
Now the SC bench has fixed the PIL filed by advocate Sunita Tiwari against FGM for hearing on July 16.
“Why should the bodily integrity of a woman be subject to some external authority? One’s genitals is an extremely private affair” - Justice Chandrachud
Tiwari, in her plea, has sought a direction to the Centre and the states to "impose a complete ban on the inhuman practice" of 'khatna' or "female genital mutilation" (FGM) throughout the country.
The plea has sought a direction to make FGM an offence on which the law enforcement agencies can take cognisance on their own. It has also sought to make the offence "non-compoundable and non-bailable" with provision for harsh punishment.
The FGM is performed "illegally upon girls (between five years and before she attains puberty)" and is against the "UN Convention on the Rights of the Child, UN Universal Declaration of Human Rights of which India is a signatory", the plea said, adding the practice caused "permanent disfiguration to the body of a girl child."
It goes on to say, "The practice of 'khatna' or 'FGM' or 'Khafd' also amounts to causing inequality between the sexes and constitutes discrimination against women. Since it is carried out on minors, it amounts to a serious violation of the rights of children as even minors have a right of security of person, right to privacy, bodily integrity and the freedom from cruel, inhumane or degrading treatment."