Arguments Summary: July 31, 2018
The 3 judge bench headed by CJI Dipak Misra resumed hearings at 11.00 A.M. In the last hearing on 30th July, Senior Counsel Rakesh Khanna and Indira Jaising argued that FGM has no proven health benefits and it violates right to dignity of women. Ms. Jaising argued that the practice which has been outlawed in many countries and cannot be an "essential practice" of the Dawoodi Bohra community.
Today, Mr. Shyam Divan appearing for Dilshad Tavawalla and Shaheeda Kirtane, termed FGM as a "profoundly disturbing practice" which leads to gross abuse of human rights. It not only results in injury to the clitoris but also leads to several psychological problems.
FGM is violative of Section 3(b) of POCSO : it deals with penetrative sexual assault. Section 3 (b) requires insertion to any extent of any object: thus FGM falls within its ambit. Justice Misra noted that Section 3(b) is gender neutral.
Mr. Divan argued that the Dawoodi Bohra community in many countries like US, Australia, Kenya consider it an illegal practice. He urged that khatna be considered a criminal act, thereby forcing the religious leaders to discard this practice.
Various international instruments prohibit the practice of FGM. Mr. Divan referred to: the Child Rights Convention which inspired POSCO; the UNGA Resolution which calls for ending FGM.
Mr. Divan concluded that even when medical professionals perform FGM, it does not become less severe or eliminate long term effects. He added that FGM is irreversible and has no known health benefits – it is violative of various fundamental rights including right to life, dignity, bodily integrity and health.
Mr. Manu Singhvi representing the Dawoodi Bohra community began his arguments by terming FGM as a "contemptible and reprehensible" practice.
Mr. Singhvi submitted that Dawoodi Bohra is one of the most progressive and prosperous communities in India. Schools are set up exclusively for women to promote education; the literacy rate amongst women is 99%. There are community kitchens which encourage to work. He submitted that women pray in the same mosque as men. The practice of triple talaq which was declared unconstitutional by the Supreme Court was not practised by the Dawoodi Bohra community. He urged the court to consider this while deliberating upon the constitutionality of FGM.
Mr. Singhvi opposed the argument that FGM is a non-hygienic, unhealthy practice. According to some studies, it leads to enhanced sexual pleasure. He drew an analogy with the western practice of performing plastic surgery on the clitoris.
Mr. Singhvi objected to the word "mutilation" to describe the practice: the phrase "female circumcision" is more appropriate. He claimed that FGM as practised in Africa is different from its practice in India. He submitted that 80% of the literature presented before the court is with respect to the African practice of FGM.
He also maintained that the practice has a developed a standard operating procedure and is generally performed by trained medical practitioners. Justice Chandrachud requested Mr. Singhvi to provide a copy of the procedure.
Attorney General KK Venugopal submitted that the practice violates the right to bodily autonomy which is recognised as a fundamental right by Puttaswamy.
(This report has been prepared by Mr. Samya Chatterjee.)