By Priyanka Sunjay
In the case Sunita Tiwari v. Union of India (W.P. (C) No.286/2017), which has recently been referred to a constitutional bench, a wide range of reliefs are being sought, which include: (a) ensuring a complete ban on the practice of female genital mutilation in India by: first, declaring it to be a criminal offence which is cognizable, non-compoundable and non-bailable; and, second by issuance of directions to the state to frame stricter laws; (b) declaration of the practice as illegal and unconstitutional.
The World Health Organization has defined female genital mutilation (“FGM”) to comprise “all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.” The young girls of the Dawoodi Bohra community undergo khatna or female circumcision, a form of FGM, wherein the clitoral hood is partially or totally removed.
Coming to the first relief, on assuming hypothetically that a stricter law is framed by the legislature subsequent to a Supreme Court order that recognizes that the practice is considered integral by the Dawoodi Bohra Muslims, and thereby directs the legislature to enact a statute to put an end to the practice as was done by Justice Khehar in Shayara Bano v. Union of India[(2016) 2 SCC 725] [“Shayara Bano”], this post examines the constitutionality of: first, such a hypothetical law, and second, the provision of the Indian Penal Code under which it is declared to be criminal offence.
The Dawoodi Bohra Muslim community has sought protection of the practice, which they claim is an ancient and “integral part of the religion” under Article 25 and Article 26 of the Indian Constitution. Article 25(1) of the Indian Constitution declares the right of all persons to freedom of conscience and the right to freely profess, practice, and propagate religion as fundamental rights. Article 26 allows religious denominations to manage their own affairs. Under Article 26, religious denominations are provided the freedom to manage religious affairs, which includes the right to manage their own affairs in matters of religion in clause (b).
On reading the bare constitutional provisions, it is apparent that right under Article 25(1) is subject to public order, morality, health as well as other provisions of Part III, and that Article 26 is only subject to public order, morality and health. In this framework, it is important to consider Article 25(2) that allows state regulation of economic, financial, political and other secular activities that are associated with religious practices in clause (a); and, protects any law that provides for social welfare and reform or throwing open of Hindu religious institutions of public character to all classes and sections of Hindus in clause (b).
The judicial interpretation has substantially contributed—and also altered—the relationship between the two constitutional provisions. On the one hand, this has provided much-needed clarity, while on the other hand, it has complicated matters.
First, in the case of Venkataramana Devaru v. State of Mysore, [1958 SCR 895] [“Devaru”] the supposed conflict between Article 25(2)(b) and Article 26 was addressed. Here, the court judged the constitutionality of a statutory provision that provided for opening of the religious institution to communities other than the Gowda Saraswathi Brahmins in light of Article 26(b). It was argued that it cannot be protected as a measure towards throwing open a temple to all classes and sections of Hindus under Article 25(2)(b) since Article 26(b) falls wholly outside its purview, and where there is a conflict between the two provisions, Article 26(b) must be held to override Article 25(2)(b). The court negated the argument and held that:
“The fact is that though Art. 25(1) deals with rights of individuals, Art. 25(2) is much wider in its contents and has reference to the rights of communities, and controls both Art. 25(1) and Art. 26(b).”
However, the above findings were substantially altered and weakened in the Sardar Syedna v. State of Bombay,[AIR 1962 SC 853] [“Sardar Syedna”]. In this case, the constitutionality of a statute that outlawed the practice of excommunication by the Syedna was challenged on the ground that it is in violation of Article 25 and Article 26(b). Once again, the court considered if the impugned statute is protected under Article 25(2)(b) as a law “providing for social welfare and reform.” Justice Gupta, speaking for the majority, held that barring excommunication on religious grounds violates Article 26(b), and does not come within the ambit of Article 25(2)(b). Justice Ayyangar in his concurring opinion distinguished from the Devaru case on two grounds: first, that statute in the Devaru served another purpose that is enshrined in Article 17: eradication of the practice of untouchability; second, it was also saved under the special provision mentioned in the latter part of Article 25(2)(b) that protects laws providing for access to Hindu temples to all classes and sections. On making such a distinction, the court went to make an additional observation that while basic and essential practices are subject to public order, morality, health as well as provisions given in Part III under Article 25(1), clauses 2(a) and 2(b) of Article 25 only allow state regulation of activities associated with religious practices and do not cover basic and essential practices of religion. Thus, it was concluded that the impugned statute was unconstitutional since it interfered with the power of excommunicated vested in the Syedna, which is protected as an essential right under Article 25(1).
While admittedly, the Devaru case was more about promoting access to Hindu institutions by all sections and classes of Hindus, the findings about the interplay between Article 26(b) and Article 25(2)(b) were not specific to the second portion of the article. Also—and more importantly—such an interpretation is better equipped to protect laws – the objective of which is social reformation. Thus, I feel that the court unnecessarily introduced an artificial distinction between essential religious practices, and other practices that do not form the core of a religion. By doing so, it narrowed the scope and strength of Article 25(2)(b) and made it subservient to Article 25(1).
Yet, an important difference between the Sardar Syedna case and the present one is that in the former, excommunication was not prejudicial to public order, morality or health. However, the negative health impacts of FGM have been proven. Thus, even on assuming that it is not protected as a social reform measure under Article 25(2)(b), it can be protected as a measure that protects public health—a limitation imposed on rights guaranteed under Article 25(1).
Coming to the second relief. Firstly, it is to be acknowledged that the challenge is of a religious practice, which was earlier immune from constitutional scrutiny because it was outside the ambit of Article 13(1). This is not the position of law anymore due to Justice Chandrachud’s opinion in Indian Young Lawyers Association & Ors. v. The State of Kerala,[2018 (8) SCJ 609] [“Sabarimala case”] wherein he observed, “no body of practices can claim supremacy over the Constitution and its vision of ensuring the sanctity of dignity, liberty, and equality.”
Second, while it accepted that that “religion” under Article 26(b) includes the practices, rites and ceremonies that are regarded by the community to be essential, the same has been subsequently subject to scrutiny by judicial review in order to determine if it is essential by the tenets of a particular religion. The Dawoodi Bohra community argue that the Fatimid School of Islam that deems ‘purity’ or ‘taharah’ as one of the 7 pillars requires the age-hold practice. It is further argued that while male circumcision is universally required under Islam, female circumcision is prescribed in the Fatimid School.
It has been held that an essential practice is one in the absence of which the fundamental nature of the religion would be altered. If a religion can exist even without the practice in question, it cannot be considered to form the core of the religion. Furthermore, merely because it has been practised since time immemorial does not make it essential. Also, religious scriptures have been referred to by courts to determine the essentiality of a practice. The practice of FGM has been illegalised in various Muslim majority countries, such as Egypt, and leaders as well as authorities of the Dawoodi Bohra Muslim community have denounced the practice as having no foundation in Islam. Thus, FGM cannot be said to be an essential part of the religion as practised by the Dawoodi Bohra community.
In Shayara Bano, Justice Nariman’s refused to refer the matter to the Legislature and declared the practice to be unconstitutional on observing that Article 25(2)(b) would only apply if the religious practice is covered under Article 25(1). Moreover, even assuming that it constitutes as an essential practice, Justice Chandrachud in the Sabarimala case made a plea for non-venturing of judges into questions involving the religious domain and emphasised the importance of constitutional morality and noted that religion cannot trump dignity of women:
“Dignity of the individual is the unwavering premise of the fundamental rights. Autonomy nourishes dignity by allowing each individual to make critical choices for the exercise of liberty…Anything that is destructive of individual dignity is anachronistic to our constitutional ethos. The equality between sexes and equal protection of gender is an emanation of Article 15.”
Thus, I feel that the second relief is the better alternative, and that the Supreme Court must declare the practice as unconstitutional instead of passing the ball to the legislature.
[The author graduated from National Law University, Jodhpur in 2019.]
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