The Supreme Court on Monday referred a petition asking for a ban on female genital cutting to a five-judge bench. The practice of cutting the genitalia of very young girls for non-medical reasons, called khatna by the Bohra Muslim community and female sunnath by certain communities in Kerala, has now become a Constitutional question. Earlier, members of the Bohra community had moved the court arguing that such a ban would violate freedom of religion guaranteed under Article 25.
But this is a debate that is primarily about a woman’s right to bodily autonomy, to privacy, to health. In observations made during hearings, the court had observed that the principle of gender sensitivity was enshrined in the Constitution, that the practice violated Article 15, which prohibits discrimination, and Article 21, which guarantees an individual’s right to life and liberty, that it posed serious health hazards for women, that the bodily integrity of a girl child could not be confused with essential religious practice. That the debate should shift to freedom of religion is at least partly due to the Centre’s confused stand on the matter.
Female genital cutting is proscribed by several conventions of the United Nations, to which India is a signatory. But, through the course of the case, the Centre has executed a series of u-turns. In May 2017, after the court sought replies from four ministries, Minister for Women and Child Development Maneka Gandhi had said that the practice was considered a crime under several provisions of the Indian Penal Code and the Protection of Children from Sexual Offences Act, that she would write to members of the Bohra community to give up the practice, and that if they did not, a separate law against female genital cutting would be enacted. But months later, in December 2017, she submitted that there was no “official data” to show female genital cutting was practised in India. This despite several survivor accounts being presented to the ministry in person and in petitions.
The arguments of attorney general KK Venugopal seemed to follow a similar trajectory. Earlier, he had told the court that female genital cutting “violates the preconditions of public order, morality and health imposed under Articles 25 and 26 and the right to bodily integrity”. Now, he backs the referral to a Constitution bench.
The Centre’s vacillation, especially its fresh concern about essential religious practice, is mystifying. Compare this to its determined attack on triple talaq, where the Bharatiya Janata Party positioned itself as the champion of Muslim women’s rights. While the court declared it unconstitutional and void last year, the Centre recently bypassed Parliament and promulgated an ordinance criminalising triple talaq. This brings about a patently discriminatory situation where non-Muslim men abandoning their wives is a civil offence but Muslim men doing so commit a crime.
While the Centre has been erratic all along, could its squeamishness now have anything to do with a recent Thomson Reuters report which ranks India as the most dangerous country in the world for women? It finds India is the worst for women in terms of sexual violence and religious or cultural practices. In an angry, defensive retort, the Centre said that the survey was incorrect and asserted, once again, that “female genital mutilation” is “not practised in India”. But such denialism comes at a high cost. Thousands of young girls have suffered serious psychological, sexual and physical damage because of genital cutting. Thousands more will continue to do so unless the Centre takes a firm stand against it.
