The Quest for Taharat: Sunita Tiwari v. Union of India

- Shardha Rajam*



Introduction

On July 9, 2018, the Supreme Court of India began hearing a petition to ban female genital mutilation practiced by the Dawoodi Bohra community. This petition brought to light the dark secret of ‘khafz’ or female genital mutilation in India (‘FGM’) which was previously thought to be prevalent only in African countries. The petition is hinged on Article 21 of the Constitution of India (Right to Life),[1] as well as Articles 19 and 24 of the United Nations Convention on the Rights of the Child,[2] protecting the right to life, and the right to health of children respectively. However, the Dawoodi Bohra Women’s Association for Religious Freedom (‘DBWRF’) has contested[3] this petition on several grounds. According to the DBWRF, khafz is not FGM as understood by international instruments, and the doctrine of essential religious practices developed by the Supreme Court provides immunity for khafz as the Court cannot interfere with practices deemed essential.


On September 24, 2018, the Court referred the question of the constitutionality of khafz, to a larger bench.[4] In this article, I discuss the legal provisions prohibiting the practice, while examining the practice itself through a Foucauldian lens of biopower. FGM best fits within Foucault’s conception of biopower as it seeks to control women and their lived experiences by taking control of their bodies. FGM perpetrates the idea that women’s sexualities must be restrained by seizing agency regarding bodily integrity from them, thereby allowing institutionalized religion to exercise power over these bodies. In this case, the Supreme Court’s recognition of this aspect of FGM is necessary at a principle level for the State to step in to revert bodily privacy and agency to women.


Understanding Khafz

Although practiced by a majority within the Dawoodi Bohra community, khafz remains secretive and thereby largely hidden from public discourse. In khafz, girls around the age of seven, have their clitoral hood either partially or completely removed as it is considered to be an ‘immoral lump of skin’ which obstructs the attainment of purity or ‘taharat’.[5] According to the United Nations,[6] FGM comprises of all procedures that involve altering or injuring the female genitalia for non-medical reasons, and therefore, khafz would fall squarely within its ambit. In 2016, the religious leader of the Bohras unequivocally stated that wherever legal, the practice of khafz must continue.[7] Consequently, despite several international instruments safeguarding the right of women to be free from all forms of discrimination,[8] and guaranteeing the right to life and physical integrity,[9] as well as the right to health,[10] khafz persists in India as it is commonly understood to be legal. This is because there is no specific provision, policy or statute prohibiting it.


Legal obligations on the State to prevent FGM

At the international level, the United Nations General Assembly (‘UNGA’) in 2006 specifically condemned religious considerations as a justification for violence against women.[11] In pursuance of the same, the UNGA specifically adopted a resolution to impose a worldwide ban on FGM in 2012,[12] and again in 2014.[13] The Commission on the Status of Women had adopted a resolution to end female genital mutilation specifically as well,[14] despite which nearly seventy-five percent of women of the Dawoodi Bohra community in India had subjected their daughters to the cruel practice.[15]


Aside from these specific resolutions, several international instruments protect the right to quality life of all individuals. For instance, the Universal Declaration of Human Rights[16] and the International Covenant on Economic Social and Cultural Rights[17] protect the right to life and physical integrity, along with the right against cruel or inhuman treatment. The United Nations Convention on Rights of Child[18] specifically imposes a duty on States to protect children from all forms of physical violence, injury, abuse, maltreatment or exploitation including sexual abuse. Currently, the joint program of the United Nations Population Fund and the United Nations International Children’s Emergency Fund to eradicate FGM focuses only on African countries,[19] as data on the practice in most other countries remains unavailable. Therefore, India remains invisible in the list of countries affected by FGM.[20]


Domestically, the recent Supreme Court judgment upholding the fundamental right to privacy[21] has included the right to bodily integrity as a right emanating from Article 21.[22] Further, the Protection of Children from Sexual Offences Act, 2012 (POCSO) makes touching the genitalia of a girl less than eighteen years of age for non-medical purposes an offence punishable with imprisonment,[23] while provisions also exist for punishing sexual assault committed by deadly weapons.[24] Moreover, voluntarily causing grievous hurt upon the body of a person using dangerous weapons is punishable up to ten years according to the Indian Penal Code, 1860 (IPC).[25] Additionally, the National Policy for Children, 2013,[26] specifically prohibits the use of customs and religious practices to restrict children from enjoying their rights. Read together, these provisions impose an obligation on the State to prevent and punish female genital mutilation.


However, while provisions regarding grievous hurt do exist in the IPC, the need for a specific provision which addresses the inhumane act of female genital mutilation remains absent. The provisions on grievous hurt do not envisage the added brutality of FGM. As practiced by the Dawoodi Bohras, FGM generally entails a parent or family member of the child on whom the child reposes trust, commit or at the very least aid the commission of FGM. The sheer violence that this act involves, does not find place in Sections 319 to 338 of the IPC.[27]


The POCSO Act, unlike the IPC, provides for a category of aggravated offences with regard to penetrative and non-penetrative sexual assault. Aggravated offences are considered so because of who they are committed by and how they are committed. Therefore, an added burden is imposed on certain individuals who have the additional duty to protect the child. This category includes individuals such as public servants, relatives by blood or marriage, the management staff of hospitals, and includes acts such as sexual assault committed by deadly weapons, etc. Despite the absence of the term ‘female genital mutilation’ in the POCSO Act, it does provide for the unique circumstances involved in a case of FGM, by considering sexual assault committed by deadly weapons and sexual assault committed by the relative or a family member of the child as ‘aggravated sexual assault’.[28] Additionally, it also mentions that sexual assault committed on a child below the age of twelve years is aggravated. By classifying such circumstances as aggravated and distinct from other kinds of sexual assault, POCSO recognises the trauma involved in FGM.


The Fallacious Road to Religious Freedom

The Indian Constitution guarantees to all persons the fundamental freedom to practise, profess and propagate one’s religion, subject to public order, morality and health.[29] Although not provided for in the Constitution, the Supreme Court of India has carved out the exception of ‘essential religious practices’ which are exempt from constitutional guarantees.[30] According to this doctrine, it is left to judicial discretion to determine what constitutes ‘essential’ practice and to effectively exclude such practices from scrutiny through a fundamental rights lens.


In the context of the Dawoodi Bohra community and their religious rights, the Supreme Court has held in the past that even the practice of excommunication of an individual, although specifically prohibited by a Bombay statute, can be considered ‘essential religious practice’ thereby immunising it from judicial scrutiny.[31] Although several women from the community have come out against FGM today,[32] according to the DBWRF,[33] khafz is an essential practice, and thereby inroads by the Constitution and in turn, the judiciary cannot be made to abolish this.


Such ‘essential’ practices are fiercely protected and offer a justification for allowing discriminatory traditions against women and cruelty in the name of religion. Recently, in the case of Indian Young Lawyers Association v. State of Kerala (the Sabarimala case),[34] the dissenting opinion of J. Malhotra, hinged precisely on ‘essential religious practices’ to continue to disallow women from entering the shrine. The doctrine is clearly a slippery slope, where the fundamental rights of citizens are not necessarily considered before cordoning off certain practices as non-negotiable.


In the petition by Ms. Sunita Tiwari, it has been acknowledged by the Supreme Court that this is not merely about women’s rights, but must be viewed as a child rights issue.[35] Consequently, the DBWRF – which constitutes of adult women of the community – could not be considered as the sole stakeholder regarding the practice of khafz.


Through the Foucauldian lens

Recognising Foucault’s conception of bio-power would allow the Supreme Court to pin liability on the State, in order to consider FGM as a real threat faced by many women in India. Acknowledging that women’s bodies are treated as mere conduits of human reproduction and are controlled for that very purpose by FGM, allows the Court to comprehensively understand the threats posed by FGM at a jurisprudential level. According to Foucault, biopower is the State’s capacity to regulate subjects through diverse techniques which aim to use bodies to control populations by subjugating the human body.[36]The human body is considered to be the site through which power is exercised, and therefore, mechanisms to control the bodies of individuals have been developed by the modern state. However, biopower according to Foucault works only if justified rationally, and therefore, explanations regarding the protection of life, promotion of well-being and health play a crucial role in nurturing biopower. Aside from the State, other establishments such as schools, as well as institutionalized religions may also use the human body to control populations.


The regulation of women’s bodies, by negating their right to bodily autonomy and privacy, by institutionalized religion would be an exercise of biopower. The practice of khafz or FGM fits neatly within the Foucauldian conception of using bodies to control populations, as it uses women’s bodies to ensure they don’t stray away from marriages. According to the Dawoodi Bohras, such mutilation is necessary for the attainment of purity or ‘taharat’, which is offered as the rational explanation behind the practice. Therefore, women are systematically disallowed from having procreative, pleasurable sexual intercourse, thereby aiming to control their behaviour and using their bodies as conduits solely for reproduction. Once seen in this light, it becomes evident that such practices view women as merely producers of human capital, without agency, choice or freedom.


Foucault also discusses the entrance of biological issues into political life,[37] including decision-making or policy development, by which the body becomes a subject of political discourse. Foucault called this biopolitics,[38] which meant essential questions on life and the bodies of individuals, such as legalising abortion, became moot points for political debates. With regard to women in particular, their bodily autonomy has been politically debated, and legally regulated, whether for legalising abortion, or for urging women to not get pregnant,[39]or even taxing tampons.[40]


In India, with khafz being performed by the country’s minority religious community, the bodies of women and their regulation will once again be subject to political discussion, under the proxy of religious freedom. It is imperative that the Supreme Court, in this case, recognise the rights of women and children to control their bodies and negate religious claims to govern them.


Conclusion

Despite the legal provisions already available in the IPC, today, FGM continues to be practiced widely within the Dawoodi Bohra community in India. The emphasis on child rights in the petition filed by Ms. Sunita Tiwari although remarkable must be taken to its logical end. It is of the utmost importance that there be a separate provision for FGM which addresses the practice specifically, including educating groups who practice it, as well as delineating measures for prevention and rehabilitation. Currently neither the IPC nor the POCSO, under which this offence would fall, provide for rehabilitation, or measures to increase awareness of FGM’s consequences. The Supreme Court, in this case, has the duty to not merely demand the Central and State governments enforce the international and domestic legal obligations with greater force, but rather outline clear guidelines for the creation of a new law. This case will require the Court to balance the doctrine of essential religious practices with the rights of children and women thereby calling the Supreme Court to take a decisive stance, in sync with India’s constitutional and international obligations.



*Shardha Rajam is a fifth year student of the West Bengal National University of Juridical Sciences. She would like to thank Ms. Sregurupriya Ayyappan and the editorial team at Socio-Legal Review for all their support.



[1]Article 21, Constitution of India.


[2]Article 19 and Article 24, United Nations Convention on the Rights of the Child, 1989.


[3]Rina Chandran, No evidence of FGM, India government tells court, appalling activists, Thomas Reuters (November 20, 2018) available at https://www.reuters.com/article/us-india-women-religion/no-evidence-of-fgm-india-government-tells-court-appalling-activists-idUSKBN1EN0QB.


[4]Sunita Tiwari v. Union of India, Writ Petition (C) No. 286/2017 (Supreme Court of India).


[5]Female Genital Mutilation, Guide to Eliminating the FGM practice in India,available athttps://www.lawyerscollective.org/wp-content/uploads/2012/07/Female-Genital-Mutilation-A-guide-to-eliminating-the-FGM-practice-in-India.pdf.


[6]International Day of Zero Tolerance for Female Genital Mutilation, 6 February, United Nationsavailable athttp://www.un.org/en/events/femalegenitalmutilationday/.


[7]Mohua Das, Clarifying his Stand – Circumcision a religious rite, but abide by law of country: Syedna, The Times of India (June 07, 2016) available at http://epaperbeta.timesofindia.com/Article.aspx?eid=31804&articlexml=CLARIFING-HIS-STAND-Circumcision-a-religious-rite-but-07062016008042.


[8]Convention on the Elimination of All Forms of Discrimination Against Women, 1979.


[9]Universal Declaration of Human Rights, 1948.


[10]International Covenant on Economic, Social and Cultural Rights, 1966.


[11]G.A. Res. 61/143, U.N. Doc. A/61/438 (December 19, 2006).


[12]G.A. Res. 67/146, U.N. Doc. A/67/450 (December 20, 2012).


[13]G.A. Res. 69/150, U.N. Doc. A/69/481 (December 18, 2014).


[14]Commission on the Status of Women, Economic and Social Council,Ending Female Genital Mutilation, Adopted on 12 March 2010.


[15]Shalini Nair, At least 75% Bohra women admit female genital mutilation, says study, The Indian Express (February 6, 2018) available at https://indianexpress.com/article/india/75-bohra-women-admit-female-genital-mutilation-study-5052869/.


[16]Universal Declaration of Human Rights, 10thDecember 1948.


[17]International Covenant on Civil and Political Rights, 1976.


[18]United Nations Convention on the Rights of the Child, 1990.


[19]Joint Programme on Female Genital Mutilation/Cutting: Accelerating Change, available athttps://www.unfpa.org/sites/default/files/pub-pdf/UNICEF-UNFPA%20Joint%20Programme%20AR_final_v14.pdf.


[20]29 Countries, more than 125 million girls and women, available at https://www.unicef.org/spanish/protection/files/00-FMGC_infographiclow-res.pdf.


[21]Justice K.S. Puttuswamy v. Union of India, (2017) 10 SCC 1 (Supreme Court of India).


[22]Article 21, Constitution of India.


[23]Clauses 3 – 13, The Protection of Children from Sexual Offences Act, 2012.


[24]Clauses 5(h) and 9(h), The Protection of Children from Sexual Offences Act, 2012.


[25]Section 326, The Indian Penal Code, 1860.


[26]The National Policy for Children, 2013, available at https://www.childlineindia.org.in/pdf/The-National-Policy-for-Children-2013.pdf.


[27]The Indian Penal Code, 1860.


[28]Clauses 9(h) and 9(n), TheProtection of Children from Sexual Offences Act, 2012.


[29]Article 25, The Constitution of India, 1950.


[30]Durgah Committee v. Syed Hussain Ali, 1961 AIR 1042 (Supreme Court of India).


[31]Sardar Syedna Taher Saifuddin v. State of Bombay, 1962 AIR 853 (Supreme Court of India).


[32]Simantini Dey, Women from the Bohra Community Are Fighting Against Female Genital Mutilation to Win Back Their Freedom, (August 15, 2018) available athttps://www.news18.com/news/buzz/women-from-the-bohra-community-are-fighting-against-female-genital-mutilation-to-win-back-their-freedom-1844119.html.


[33]Update on the PIL Sunita Tiwari v. Union of India, on behalf of the 70000+ Women of the DBWRF, available athttps://dbwrf.org/blog_details/16.


[34]Indian Young Lawyers Association v. Stateof Kerala Writ Petition (C) No. 373/ 2006 (Supreme Court of India).


[35]Female Genital Mutilation violates fundamental rights, says Supreme Court, The Hindustan Times (July 31,2018) available at https://www.hindustantimes.com/india-news/female-genital-mutilation-violates-fundamental-rights-says-supreme-court/story-2NEarAry6tAMsHIIbXojDM.html.


[36]Rachel Adams,Michel Foucault: Biopolitics and Biopower, Critical Legal Thinking (May 10, 2017) available at http://criticallegalthinking.com/2017/05/10/michel-foucault-biopolitics-biopower/.


[37]Vanessa Lemn and Miguel Vatter, Michel Foucault’s perspective on biopolitics, available athttp://www.biopolitica.unsw.edu.au/sites/all/files/publication_related_files/proofs-lemm_and_vatter_0.pdf.


[38]Biopolitics and State Regulation of Human Life, available at http://www.oxfordbibliographies.com/view/document/obo-9780199756223/obo-9780199756223-0170.xml.


[39]Jose Cabezas, El Salvador urges against pregnancies until 2018 as Sika virus spreads, Thomas Reuters (January 22, 2016) available at https://www.reuters.com/article/us-health-zika-el-salvador-idUSKCN0UZ2SP.


[40]Alexandra Svokos, Abortion laws – if men were treated like women, The Elite Daily (March 21, 2016) available at https://www.elitedaily.com/news/politics/abortion-laws-if-men-were-treated-like-women/1428487.

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