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The Supreme Court today made some pertinent observations during the hearing in the case seeking abolition of the practice of female genital mutilation.
Justice DY Chandrachud who was on the Bench hearing the matter along with CJI Dipak Misra and Justice AM Khanwilkar remarked,
“Control over one’s genitalia is vital to privacy, autonomy, dignity.”
The remark was made during the submissions by Senior Advocate Rakesh Khanna who was appearing for petitioners.
“Children of 5 or 7 years of age are put through so much trauma. It is not performed by medical practitioners“, Khanna had submitted.
“Irrespective of how it is performed, is it not a violation of Constitutional provisions?”, asked Justice Chandrachud.
“Is it not a violation of Article 15 as well” Chandrachud J. probed further after listening to Khanna’s submissions on violation of Article 21.
CJI Dipak Misra also echoed Justice Chandrachud’s opinion and quipped,
“Why should a lady be made to put in so much effort as an obligation to her husband. Is that her only obligation, to please her husband”, he asked.
After Khanna concluded his submissions, Senior Advocate Indira Jaising commenced her arguments.
Her argument was that the practice amounted to a crime under the Indian Penal Code and Protection of Children from Sexual Offences Act, 2012 (POCSO), and something declared to be a crime by law cannot be considered an Essential Religious Practice.
“Any touching of female genitalia is an offence under IPC and POCSO. Something declared criminal by law cannot be considered Essential Religious Practice”, she submitted.
Jaising also argued that IPC covers touching of all parts of female genitalia and not just vagina.
“One probable argument could be that it is not vagina but the only clitoral hood, but the explanation to Section 375 makes it clear that all parts of female genitalia are covered by IPC”, said Jaising.
She further argued that assuming it was not a crime, it still has to go since it is not an Essential Religious Practice.
“It is not an Essential Religious Practice because it is not followed everywhere. Many countries have statutorily banned it including England and Australia”, submitted Jaising.
The Central government is also supporting the stance of the petitioner.
The hearing will resume tomorrow.