Can't call a practice 'religious' just because it's age-old, says SC

New Delhi: The Supreme Court said Monday that the argument on female genital mutilation (FGM) of minor girls of the Dawoodi Bohra Muslim community is being practised from tenth century is not "sufficient" to hold that this formed part of the "essential religious practice", which cannot be scrutinised by court.

A bench headed by Chief Justice Dipak Misra was responding to submissions of senior advocate A M Singhvi, appearing for a Muslim group, that this was an old practice which formed part of "essential religious practice" and, hence, was not open to judicial scrutiny.

Singhvi told the bench, also comprising justices A M Khanwilkar and D Y Chandrachud, that the practice was protected under Article 25 and 26 of the Constitution which deals with religious freedom.

However, the bench differed, saying, "The fact that this is being practised from 10th century is not sufficient for us to hold that this is the essential part of religious practice."

This practice will have to pass the test of constitutional morality, the bench said.

Singhvi said that Dawoodi Bohras have been the most progressive and educated among the Muslim communities and the practice is not so grave as has been made out by those opposing it. He said the practice has also been an essential religious practice which was protected under Article 25 (freedom of conscience and free profession, practice and propagation of religion) of Constitution.

The females of the community are educated and moreover, it also does not practice the instant triple talaq for divorce which has been banned by the apex court.

The hearing in the matter remained inconclusive and would resume on August 27.

Earlier, the court had made it clear that it cannot direct doctors to perform genital mutilation of minor girls of the community and had questioned the "scientific justification", if any, behind the procedure.

It had questioned the practice saying that there was hardly any rationale behind it as a girl child is forced to undergo it due to non-medical reasons.

Attorney General K K Venugopal, appearing for the Centre, had reiterated the government's stand that it was opposing the practice and said that this has been banned in many countries like the US, the UK, Australia and around 27 African nations.

The practice causes irreparable harm to girl children and has many health repercussions, the top law officer said and referred to Article 25 to highlight the point that a religious practice can be stopped if it was against "public order, morality and health".

The bench was hearing the PIL filed by Delhi-based lawyer Sunita Tiwari against the practice in the community.

Senior advocate Indira Jaising, appearing for Masooma Ranalvi, a lawyer who herself has been a victim of mutilation, had said the practice of "removal of the clitoral hood" for non-medical purposes of a minor constituted an offence under the IPC and the Protection of Children from Sexual Offences Act (POCSO Act).

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

Tiwari, in her plea, 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.