When religious freedom collides with the right to life

Right now, a nine-judge bench of the Supreme Court (SC) is hearing a critically important case, the outcome of which will determine the constitutionality of female genital mutilation (FGM), a practice that threatens young girls’ health, safety, and bodily autonomy, widely considered a form of torture. Although India has technically outlawed FGM through broad criminal prohibitions, the practice continues. If the Court is to continue its tradition of responsive constitutional law, and uphold its international legal obligations, then it must confirm that FGM is not constitutionally permitted. FGM is a cultural practice that embodies “procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons”. It is customary among the Dawoodi Bohra community in India, where girls’ clitoral hood is partially or entirely removed, typically at age seven. While it is often labelled an integral part of Islam, there is no mention of FGM in Islamic scriptures. It is an archaic socio-cultural norm that is a criminal offence in most countries’ domestic law — a position further buttressed by international legal obligations. In 2017, Maneka Gandhi, the then-Minister for Women and Child Development (MWCD), affirmed that FGM “is a crime under the… IPC and… POCSO”. When Shashi Tharoor questioned the practice’s legality in 2023, the incumbent MWCD answered, “In India, the incidence of FGM, if reported, is a penal offence under section 320-326 of the IPC which deals with causing harm to body,” adding that “POCSO can also be invoked”. It is, therefore, peculiar that the SC failed to expressly reaffirm this practice as illegal when it first accepted the case in 2018. This failure may be attributed in part to the Court’s framing. When the case first came before it, the SC tagged questions relating to FGM’s legality with other issues relating to freedom to practise religion and referred this to a larger bench. The nine-judge bench is approaching the case primarily in terms of the scope of religious rights contained in Articles 25 and 26. This may cause concern. The practice is not religious and thus not protected by Article 25 or 26. Even if it were, it cannot be constitutionally protected; it is a form of torture that results in the permanent dismemberment of a girl-child’s body, leading to long-term psychological and physical suffering, and can result in death. The Court must separate the constitutionality of FGM from issues of religious freedom. The respondents argue that FGM is “an integral part” of the Bohra religion. This is patently untrue. Even if it were true, no claim of religious freedom can justify a violation of bodily integrity, human dignity, or fundamental rights. Under the SC’s jurisprudence, even if a practice is intrinsic to a religion, it cannot supersede other essential fundamental rights, particularly the right to life. The respondents argue that the right to life is not implicated by FGM as it is voluntary. This is a flawed interpretation, as consent has no bearing on the right to life. And no child can provide informed consent at age seven. FGM is also in contravention of India’s binding international obligations. The prohibition of torture is a fundamental rule of international law that cannot be overridden in any circumstance. It binds all governments regardless of any other treaty or law. Hope now rests with this bench to expressly reaffirm the grave illegality of this practice. The writer is an international lawyer with multijurisdictional experience working on human rights issues