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SC Distinguishes FGM from Circumcision on Health Grounds
In a significant oral observation during the ongoing Sabarimala reference hearing, a nine-judge Constitution Bench of the
has firmly differentiated Female Genital Mutilation (FGM) from male circumcision, emphasizing its severe impacts on physical, reproductive, emotional, and sexual health. Justice Joymalya Bagchi remarked,
"From a public health perspective, there is a difference between circumcision and genital mutilation."
The bench, led by Chief Justice Surya Kant, underscored that FGM—practiced on young girls in the
—could be restricted under
of the Constitution on grounds of "health" alone, without delving into whether it constitutes an
. This comes amid broader apprehensions about courts being flooded with challenges to religious customs, potentially eroding India's civilization deeply intertwined with faith. Justices BV Nagarathna and others voiced concerns that excessive judicial intervention could lead to "every religion breaking" and constitutional courts closing down.
The Sabarimala Reference Context
The hearing stems from the Sabarimala verdict, where a five-judge bench by a 4:1 majority struck down the temple's ban on women of menstruating age as violative of gender equality under , holding it not an under . The decision was referred to a larger nine-judge bench to resolve overarching questions on the scope of religious freedoms under Articles 25 and 26, including the "essential religious practices" test from the landmark Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt ( ).
Petitions challenging FGM—filed by survivors and activists like and others—were tagged to this reference, as they raise parallel constitutional questions. FGM, known as khatna in the Dawoodi Bohra sect, involves the ritualistic removal of the clitoral hood on girls as young as seven, purportedly as a "symbolic circumcision." , representing the petitioners, highlighted its irreversibility, noting the loss of at least 10,000 nerve endings and lifelong consequences for sexual and reproductive health.
Assault on Essential Religious Practice Claim
Luthra argued vehemently that FGM cannot claim protection as an
under
(1) or as a
under
. He pointed to social compulsions, including the fear of excommunication by the community's spiritual head, the Dai, which coerces families into compliance.
"It is mutilation of a vital organ of the female body, and it directly impacts physical health, reproductive health and emotional health,"
Luthra submitted, adding
"
"
as supplemented by Justice Bagchi.
The advocate invoked global precedents, noting bans in 59 countries, and stressed the subjects are minors incapable of consent, implicating rights to life and personal liberty. Chief Justice Surya Kant probed whether interference with other warrants court intervention irrespective of Articles 25-26 interplay, to which Luthra affirmed, urging scrutiny of "power structures" and "social compulsions" within the community.
Health and Morality as Constitutional Barriers
The bench appeared inclined to prioritize
's proviso, which permits restrictions on religious practices for public order, morality,
and health
. Justice Bagchi observed,
"As far as female genital mutilation is concerned, we may not even need to travel into all these other rights. The expressions ‘health’ and ‘public health’ themselves may be sufficient."
Justice BV Nagarathna concurred on morality grounds, while Justice Bagchi linked it to control over women's sexuality, intruding into bodily and mental integrity. Justice Prasanna B Varale noted the "multi-fold" impact, and Luthra reinforced that such practices fall foul of Articles 25 and 26 limitations. The bench emphasized excommunication's secular consequences and harm to individuals, particularly minors.
Rejecting the Circumcision Analogy
A key flashpoint arose when , representing community interests, defended FGM as non-mutilatory—"a symbolic circumcision" akin to Western "hoodectomy"—claiming it enhances women's sexual pleasure and lacks worldly sanctions like excommunication. Pasha analogized it to mandatory namaz without punishment for non-observance.
The bench rebuffed this sharply.
"It is just the opposite,"
quipped Justice Ahsanuddin Amanullah, objecting to the circumcision parallel:
"I'm surprised it is compared to circumcision; it is a different concept. Get your facts correct."
Justice Amanullah clarified that mandatory religious status still invites judicial testing, regardless of sanctions.
Community's Counterarguments
Pasha maintained no excommunication or worldly punishment exists, only potential spiritual consequences, disputing the "mutilation" label. He reiterated the practice's internal description and lack of coercion. However, the bench remained skeptical, with Justice Nagarathna querying its objective, underscoring the factual disputes to be resolved later.
Caution Against Judicial Overreach in Religion
Parallel to FGM deliberations, the bench expressed profound unease over courts entertaining endless religious challenges. Justice Nagarathna warned,
"If everybody will start questioning certain religious practices or matters of religion before a Constitutional Court, then what happens to this civilisation where religion is so intimately connected with Indian society. Every religion will break, every Constitutional court will have to be closed."
Justice MM Sundresh echoed that "everyone can question everything," while Justice Nagarathna elaborated on India's
"civilization with many pluralities and diversities,"
where religion is a "constant" amid progress.
"This is troubling us. We, nine judges, what we lay down is for a civilisation, that is India,"
she added. CJI Surya Kant highlighted risks of petitions on temple openings/closures, urging judicial consciousness.
Constitutional Analysis: Articles 25 and 26
This hearing illuminates the tension in Indian constitutionalism between group religious rights (Articles 25-26) and individual dignity (Articles 14, 15, 21). (1) guarantees freedom to practice religion subject to the proviso's limitations—public order, morality, health—offering a threshold bypass for essentiality tests if any ground applies. The bench's health focus aligns with precedents like State of Bombay v. Narasu Appa Mali ( ) on bigamy, but evolves post- Sabarimala and Hijab cases toward prioritizing harm.
FGM's classification as non-essential mirrors on tantric sacrifices. Minors' involvement strengthens Art 21 claims ( on autonomy), potentially invoking overlaps. Globally, deems FGM a human rights violation; India's could extend. The excommunication angle tests on denominational exclusivity.
Broader Ramifications for Indian Jurisprudence
For legal professionals, this signals a health-centric shortcut to invalidate harmful rites, easing burdens on essentiality evidence ( ). It bolsters gender justice post- (adultery decriminalized) and ( ), framing FGM as violence against women ( parallels).
Yet, the floodgates caution tempers activism, echoing (Sabarimala) dissents. It may refine judicial standards: intervene only for collisions, not doctrinal disputes. Human rights lawyers gain ammo for survivor litigation; religious bodies face stricter scrutiny on minors/customs.
Looking Ahead
As live updates continue, the bench's final verdict could redefine religious freedoms' contours, balancing India's pluralistic ethos with modern rights. Whether FGM joins triple talaq in the scrapheap of unconstitutional practices remains pending, but oral remarks suggest health trumps faith when bodies are scarred. Legal practitioners must watch for ripple effects in child rights, gender, and constitutional benches.
