Article 1: FGM and Constitutional Morality in India
Why in News: A nine-judge bench of the Supreme Court of India is examining the constitutionality of Female Genital Mutilation (FGM), raising questions on religious freedom vs fundamental rights.
Key Details
- FGM is practised among the Dawoodi Bohra community in India, usually on minor girls.
- The Government of India has stated that FGM is punishable under IPC (Sections 320–326) and the POCSO Act, 2012.
- The case is being examined in the context of Articles 25 & 26 (freedom of religion).
- Internationally, FGM is recognised as a human rights violation and form of torture.
Female Genital Mutilation (FGM): Concept & Nature
- Definition (WHO Standard): FGM refers to procedures involving partial or total removal of external female genitalia for non-medical reasons. It is widely condemned as harmful and unnecessary.
- Prevalence in India: Practised mainly among the Dawoodi Bohra community, usually performed on girls around 6–7 years of age, raising serious concerns about child rights.
- Health and Psychological Impact: It leads to severe pain, infections, long-term reproductive issues, and psychological trauma, violating the right to dignity and bodily integrity.
- Global Perspective: According to global estimates, 200+ million women worldwide have undergone FGM, making it a significant international human rights issue.
Legal Position in India
- Indian Penal Code (IPC): Sections 320–326 criminalise causing grievous hurt, which can be invoked against FGM practitioners as it involves permanent bodily injury.
- POCSO Act, 2012: Since FGM is performed on minors, it falls under sexual assault and child abuse, making it punishable under stringent provisions.
- Government Stand: The Ministry of Women and Child Development has clarified that FGM is already illegal under existing laws, even without a specific statute.
- Judicial Gap: Despite legal provisions, absence of an explicit Supreme Court declaration has led to ambiguity in enforcement and awareness.
Constitutional Dimensions: Fundamental Rights Debate
- Article 21 – Right to Life and Dignity: The Supreme Court has expanded Article 21 to include bodily integrity, privacy, and dignity, all of which are violated by FGM.
- Article 14 & 15 – Equality and Non-Discrimination: FGM disproportionately affects women and girls, violating gender equality and protection against discrimination.
- Article 25 & 26 – Religious Freedom: These rights are subject to public order, morality, and health, meaning harmful practices cannot be justified in their name.
- Doctrine of Constitutional Morality: Courts have emphasised that constitutional values prevail over social or religious customs, especially when fundamental rights are infringed.
Essential Religious Practices (ERP) Doctrine
- Concept of ERP: The Supreme Court uses the ERP test to determine whether a practice is essential to a religion and thus protected.
- FGM and Religion: There is no mention of FGM in core Islamic scriptures, weakening claims that it is an essential religious practice.
- Judicial Precedents: Cases like Shayara Bano (Triple Talaq) show that practices violating fundamental rights can be struck down even if claimed religious.
- Implication: Even if considered religious, FGM cannot override right to life, dignity, and bodily autonomy.
International Law & India’s Obligations
- Human Rights Framework: FGM is recognised globally as a form of torture and gender-based violence, prohibited under international law.
- Relevant Conventions: India is a signatory to CEDAW (Convention on Elimination of Discrimination Against Women) and UNCRC (Child Rights Convention).
- Customary International Law: The prohibition of torture is a jus cogens norm, binding on all states regardless of domestic law.
- Global Practice: Many countries have enacted specific anti-FGM laws, highlighting the need for stronger legal clarity in India.
Key Issues in the Ongoing Supreme Court Case
- Framing as Religious Freedom Issue: The case has been referred to a larger bench primarily on Articles 25–26, raising concerns about misclassification.
- Consent Argument: Claims of voluntariness are invalid, as minor girls cannot provide informed consent, making it a clear violation of rights.
- Judicial Responsibility: The Court must clarify that harmful cultural practices cannot be constitutionally protected.
- Public Health and Gender Justice: The issue intersects with women’s rights, child protection, and public health policy.
Contemporary Relevance for India
- Gender Justice Debate: The issue aligns with broader reforms such as abolition of Triple Talaq and discussions on Uniform Civil Code.
- Child Protection Framework: Strengthening enforcement of POCSO and awareness campaigns is crucial for prevention.
- Socio-cultural Sensitivity: Reform requires community engagement, awareness, and behavioural change, not just legal prohibition.
- Policy Gap: India lacks a specific anti-FGM law, unlike many countries, which creates enforcement challenges.
Conclusion
The Supreme Court must clearly affirm that FGM is unconstitutional, prioritising right to life, dignity, and bodily autonomy over cultural or religious claims. India should consider explicit legislation banning FGM, strengthen enforcement of existing laws, and promote awareness within communities. Upholding constitutional morality will ensure that the republic protects its most vulnerable citizens, especially young girls.
EXPECTED QUESTIONS FOR UPSC CSE
Prelims MCQ
Q. Female Genital Mutilation (FGM) in India can be prosecuted under:
(a) Only IPC
(b) Only POCSO
(c) Both IPC and POCSO
(d) Neither IPC nor POSCO
Answer: (c)
Descriptive Question
Q. “Constitutional morality must prevail over social and religious practices.” Examine in the context of the FGM debate in India. (150 Words, 10 Marks)