SC refers female genital mutilation case to 5-judge Constitution Bench

The Supreme Court on Monday referred to a five-judge constitution bench the plea challenging practice of female genital mutilation among Dawoodi Bohra Muslims.

A bench headed by Chief Justice Dipak Misra considered the submissions of Dawoodi Bohra Women's Association for Religious Freedom (DBWRF) that female circumcision has been practised by Dawoodi Bohra community for centuries and its validity has to be examined by a larger bench to ascertain whether it was an essential religious practice protected under the Constitution.

Attorney General K K Venugopal, appearing for the Centre, had earlier reiterated the government's stand that it was opposed to the practice as being violative of fundamental rights and had said this has been banned in many countries like the United States, the United Kingdom, Australia and around 27 African nations.

He had also referred to Article 25 to highlight that a religious practice can be stopped if it went against 'public order, morality and health'.

On Monday however, Venugopal supported the submissions of DBWRF, represented by senior advocate A M Singhvi that the PIL, filed by Delhi-based lawyer Sunita Tiwari against the practice of FGM, be referred to a five-judge bench.

The court considered the written notes of the parties, including the Centre, and said it would pass an order referring the plea to a five-judge constitution bench.

Expressing disappointment over the reference to a larger bench, lawyer Masooma Ranalvi, the founder of NGO 'WeSpeakOut' which has been working for survivors of the FGM and had intervened in the case, said 'what is shocking is the clear volte face by the Attorney General K K Venugopal...'.

"The referral is an attempt to re-frame the issue from one of FGM being a violation of the Constitutional and human rights, to that of a right to continue this discriminatory practice under the garb of religious freedom.

"It is also clearly aimed at delaying a verdict in this case, in which arguments have already been extensively heard by a three-judge bench before which it is pending," she said.

Earlier, DBWRF, which was supporting the practice, had said that the courts should not decide the constitutionality of a centuries-old religious practice of female circumcision through the PIL route.

"The object of female circumcision (FC) and male circumcision (MC) is a religious practice in Islam and they are related to purity aspect," Singhvi had said, adding that he was representing over 70,000 Dawoodi Bohra Muslim women who were in favour of the practice.

Singhvi had said that no affected Bohra Muslim woman has come to the court challenging the practice and allege that it has harmed them emotionally and physically.

The apex court had said that FGM of minor girls of the community leaves a 'permanent emotional and mental scar' on them and the practice may be held as violative of dignity of women as prescribed in the Constitution.

It had also said questioned the FGM of minor girls saying women cannot be 'subjugated' to the level where they have to 'please' their husbands only.

Ranalvi, a lawyer who herself has been a victim of the FGM, had said the practice of 'removal of the clitoral hood' for non-medical purposes of a minor constituted an offence under the Indian Penal Code and the Protection of Children from Sexual Offences Act (POCSO Act).

"Something which has been declared illegal and criminal by the law cannot the essential practice of religion. This constituted an offence under the IPC and the POCSO Act," she had said.

The court had on May 8 agreed to examine the issues raised by Tiwari in her PIL by saying that the practice of female genital mutilation was 'extremely important and sensitive'.

Tiwari, in her PIL, had sought a direction to the Centre and the states to "impose a complete ban on the inhuman practice" of 'khatna' or 'female genital mutilation' throughout the country.

Female genital mutilation 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 is India is a signatory', the plea had said, adding that the practice caused 'permanent disfiguration to the body of a girl child'.

The top court had issued notices and sought replies from four Union ministries, including the Woman and Child Development, besides Maharashtra, Gujarat, Rajasthan and Delhi where Dawoodi Bohras, who are Shia Muslims, predominantly reside.

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.