In the case of the ongoing PIL of Sunita Tiwari vs Union of India in which the impleaded (DBWRF) Dawoodi Bohra Women’s Association for Religious Freedom which represents the voice of over 70,000 and counting Dawoodi Bohra women was heard this week. The Honourable Supreme Court of India heard from Dr. Abhishek Manu Singhvi (on behalf of the DBWRF) and Meenakshi Arora (On behalf of Nafisa Vahanvati, wife of Goolam Vahanvati - Former Attorney General of India, a Dawoodi Bohra intervener who is in support of the practice of Khafz/ FC.

The weeks events saw Dr Singhvi dispel a variety of myths directed at the community. He led with examples and constitutional references to display that the matter is much more than black and white. He argued from gender parity to POCSO, rendering the bench to take notice of the practice in its context as opposed to the negative snowballing and packaging as FGM. A practice which the DBWRF is strongly opposed to and distinguishes Khafz from.

It was pointed out by the Hon’ble Bench on the last date of hearing that the connotation used with the word ‘Morality’ under Article 25 of the Constitution of India refers to Constitutional Morality. In support of his submission on Morality, Dr. Singhvi relied on the decision of Indian Young Lawyers Association & Ors. v. State of Kerela & Ors., which has referred the matter to the Constitution Bench and the judgement is presently reserved. Dr Singhvi also relied on Justice Khehars decision in the Triple Talaq matter and submitted that constitutional morality cannot be used as a tool to defeat a Fundamental Right under article 25 of the constitution of India. What constitutes Constitutional Morality in the context of the expression “morality” as found in Article 25 of the Constitution, is a topic which is not concluded and has not attained finality. He respectfully submitted that the matter ought to be referred to a Constitution Bench, since the matter contains important aspects of interpretation of the Constitution, some of which remain undecided today.

He further submitted that the test of essentiality forms the threshold of the freedom provided under Article 25. This test has been laid down by the Hon’ble Supreme court through various judgments, copies of which were also tendered in Court. He submitted that the practice of Khafz/Female Circumcision [FC] is an essential religious practice of the Dawoodi Bohra Community.

He submitted that the practice of FC can be said to be ‘immoral’ only if it is so abhorrent or socially repugnant that it affects the public at large. He submitted that the majority of the Dawoodi Bohra women in fact want the practice to continue and the PIL is nothing but an attempt to encroach on the rights of the community.

Thereafter, Dr. Singhvi advanced arguments on applicability of article 14 to the present case. It was submitted by Dr. Singhvi that the practice of Male Circumcision [MC] is allowed and in fact practiced amongst all schools of Islam while the same practice for women is sought to be banned by the instant PIL.

Dr. Singhvi submitted that (i) the origin of MC and FC is the same, (ii) both are core tenets of the Dawoodi Bohra faith (iii) MC is performed shortly after birth, FC is carried out around the age of 7(iv) while MC is universally prescribed under Islam, FC is stipulated in the Fatimid school

Dr. Singhvi submitted that it is a clear case of under-inclusion and judicially induced discrimination since MC and FC are identical in procedure and religious significance and yet only MC is acceptable by all. If FC was banned then only men would be able to attain purity/ taharat.

Dr. Singhvi continued his arguments and further submitted that for the Dawoodi Bohra community, both Male Circumcision and Female Circumcision have mandatory sanctions and essentially form the same genus. On these counts the ban sought by the Petitioner in FC is violative of Article 14 of the Constitution.

He invited the attention of the bench to the affidavit filed by the Ministry of Women and Child which in categorical terms states that that there is no official data or study by the National Crime Records Bureau reflecting that the practice of FGM is prevalent in India.

Dr. Singhvi also submitted his arguments on parental autonomy and cited the case of Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India And Ors. [the privacy judgment] to say that a child is nurtured by the parents within the umbrella of customs and traditions of the family. If the autonomy of the child is seen in isolation, then that would affect the mental and spiritual growth of the child. Citing examples of choosing an educational institution for the minor child or choosing vocations for the minor child, Dr. Singhvi submitted that the parents have the right to make decisions on behalf of the child and do so always keeping in mind the best interest of the child.

Thereafter, Dr. Singhvi appraised the Hon’ble Court about the Australian case of R v. A2 wherein 3 persons from the Dawoodi Bohra community were convicted for the offence of FGM as defined in the Crimes Act, 1900 applicable in New south Wales. The Petitioners were relying on this to say that the practice of Khafz/FC has been carried out on the two girls and the perpetrators have been convicted of the offence of FGM.

Dr. Singhvi submitted that in a great win for the community the convictions have now been quashed and all accused have been acquitted.

He informed the Hon’ble Bench that the Court of Appeal has concluded that the practice does not fall within the ambit of the definition of FGM as set out in s. 45 of the Crimes Act and the practice has not resulted in any bodily harm.

He further submitted that as per the very evidence before the Court in New South Wales, there was no harm scar found on the Clitoris of the children who had undergone FC.

The testimony of a Dr. which the prosecution in the Australia case was heavily relying on was in fact one woman from the Dawoodi Bohra Community, who had previously written an anecdotal article on the practice. He informed the Hon’ble Bench that WHO reports and material clearly indicate that there has not been any study or investigation in India to ascertain the extent of the prevalence or the adverse consequences, if any, of FGM in general or the practice of Khafz/FC amongst the Dawoodi Bohra Community in particular and the only reference in the WHO reports is on the basis of the article authored the aforementioned doctor, whose evidence has been entirely discredited.

Dr. Singhvi argued on the provisions of Prevention of Children from Sexual Offences Act [POCSO] and submitted that the concerned sections 3, 5 and 7 all require ‘sexual intent’ as an ingredient for any liability to be fastened under the POCSO. Dr. Singhvi further submitted that by no stretch of imagination can there be any sexual intent in the practice of Khafz and therefore such practice does not fall under any of the provisions of POCSO. Dr. Singhvi submitted that a mother, nanny or relative attending to a child will become liable to be prosecuted under POCSO Act if a wide reading of the legislation is permitted to be undertaken.

Dr. Singhvi submitted that keeping in view the importance of the issues that fall for determination in these proceedings and the ramifications that the directions issued by this Court may have on the community, a reference to the constitution bench to decide the matter was absolutely imperative.

Dr. Singhvi also argued that the present case is unique for being a PIL since it is based on assertions of the Petitioner who claims in a blanket manner, cruelty on women, indiscriminately and arbitrarily equating FC with FGM. Dr. Singhvi submitted that this is not a matter which can be decided without a trial as the account of one or two women cannot be assumed to be true as against the stand being taken by 70,000 women who are defending the practice and have said by way of an affidavit that the practice is harmless.

Dr. Singhvi submitted that in various cases where a religious practice has been upheld / set aside by the under Articles 25 and 26 of the Constitution, the concerned practice was governed by a state / central legislation, the constitutionality of which was challenged before the Supreme Court. He respectfully submitted that in the absence of a legislation the court could not proceed to decide the diverse issues concerning the matter. He submitted that these issues cannot be determined before the Hon’ble Supreme Court in an Article 32 Petition and can only be decided after evidence has been lead after the enactment of a legislation.

Dr. Singhvi submitted that the Hon’ble Court must be vary of entering the realm of judicial activism in a matter where the consequence of banning FC would be would be that men would be able to attain religious purity and women would be deprived of the same. Such a discrimination would be violative of Article 14 of the Constitution. A judgement of the Hon’ble Supreme Court would not be open to judicial review unlike a situation where a legislation regulating/ banning this practice would be enacted.

Sr. Advocate Ms. Meenakshi Arora appearing on behalf of Nafisa Vahanvati (wife of Goolam Vahanvati -Former Attorney General of India) a Dawoodi Bohra intervener who is in support of the practice of Khafz/ FC, tendered religious texts which clearly reflect that the practice of Khafz/FC does not in any manner attempt to repress the sexuality or sexual desires of a woman. Ms. Arora submitted that there is only a nick on the female foreskin (prepuce) covering the clitoris as dictated by the ancient texts. These texts, which are thousands of years old, talk of marital rape, that a man will not force his wife.

The 70,000 women we represent are grateful that their right to practice is being defended and that Dr Singhvi and Meenakshi Arora could challenge the misconceptions the community is facing with reference to its essential religious practice.