Day 4 Arguments: 20th August, 2018
A three-judge bench headed by CJI Dipak Misra is deciding whether or not to ban female genital mutilation (FGM). The Dawoodi Bohra community is opposed to a ban and disagrees with the characterization of its practice of female circumcision as FGM.
Mr. A.M. Singhvi, representing the Dawoodi Bohra community, continued his arguments from the previous hearing. He spent much of the hearing defending female circumcision on the grounds that it is an essential religious practice for Dawoodi Bohras.
Freedom of religion
Mr. Singhvi argued that the practice is covered by the right to freedom of religion guaranteed under Article 25(1) and Article 26(b) of the Constitution. He in particular focused on 25(1) which grants a person the freedom to ‘practise’ religion.
Moreover Mr. Singhvi wanted to demonstrate that female circumcision is an ‘essential’ practice for the Dawoodi Bohras. He was responding to claims made by lawyers Mr. Khanna and Ms. Jasing, where they argue that it is a non-essential practice for Dawoodi Bohras. If the practice is non-essential, the Court has more leeway to consider a ban.
Mr. Singhvi used religious texts to prove essentiality. He highlighted how Dawoodi Bohras have practiced circumcision for centuries. He submitted that the practice of circumcision was handed down from Allah to Ibrahim, which was later embodied in text. He submitted that the practice is a part of the seven pillars of Islam as interpreted by the Fatimid Shia school of thought, followed by Dawoodi Bohras.
Using comparative analysis, he argued that circumcision as practiced by Dawoodi Bohras ought to be considered essential, given what constitutes an ‘essential practice’ for other schools of Islam. He focused on how male circumcision is considered essential for other schools.
He noted, rather confidently, that proving essentiality is a less rigorous test than the Court seems to imagine.
The bench observed that even if a practice is essential, it has to pass the rigours of constitutional morality. Justice Chandrachud observed that constitutional morality demands that the dignity of women, a fundamental right, is safeguarded.
Mr. Singhvi responded that the court should resist the temptation of imposing subjective morality in religious matters. He cited the example of Sati, to argue that controversial religious customs have to be disallowed by the legislature and that the Court’s role should be limited to assessing the validity of such legislation.
He said that it is strange that a public interest litigation has challenged the validity of a customary religious practice even when the State has not taken a view on the practice.
Justice Chandrachud cited Article 51 A(e), which casts a fundamental duty on citizens 'to renounce practices derogatory to the dignity of women', as the source of the Court’s power to look into validity of religious practices.
Mr. Singhvi again pointed out that circumcision is not exclusively practiced on women. Citing religious texts, he demonstrated that both women and men must be circumcised.
Mr. Singhvi submitted that the Dawoodi Bohras have historically been a progressive community where educational qualifications among women were higher than men. He highlighted how, unlike other schools of Shia Islam, the Dawoodi Bohras did not recognise triple talaq.
(The post relies on contributions from Mr. Abhinav Sekhri.)