The Supreme Court on July 31st, 2018 stated that it cannot direct doctors to perform genital mutilation of minor girls of the Dawoodi Bohra Muslim community and questioned the "scientific justification", if any, behind the procedure.
The matter came up before the bench headed by Chief Justice Dipak Misra
, which was hearing a PIL challenging the practice. The court questioning the process said that there was hardly any rationale behind it as a girl child is forced to undergo it due to non-medical reasons.
"Do you wish us to pass an order under Article 142
(which provides extraordinary powers to the Supreme Court to pass any order in the interest of justice) of the Constitution
asking doctors to perform this procedure in a hospital? How it can be done? "What is the scientific justification to direct doctors to perform this procedure," the bench, also comprising justices A M Khanwilkar and D Y Chandrachud
, asked senior lawyer A M Singhvi, representing a Muslim group which supported the practice. Moreover, the court said that asking doctors to perform this kind of procedure would also be violative of medical ethics. The observation came when the senior lawyer said the court may issue directions to ensure proper safety measures in conducting the procedure. Singhvi claimed that the practice has been an essential religious practice which was protected under Article 25 (freedom of conscience and free profession, practice and propagation of religion) of Constitution
. Standard Operating Procedure
Further, the bench asked the standard operating procedure (SOP) for performing the mutilation on small minor girls. "What is your standard operating procedure (SOP)? I am thinking about the trauma of a child who would be crying and objecting to it. Somebody has to hold the child down as there is no anesthesia, no hospital...," Justice Chandrachud asked. The senior lawyer in reply to this said that the same thing happened when a child is vaccinated and moreover, extreme care and caution are taken as the procedure is conducted under the supervision of the mother. Attorney General K K Venugopal
, appearing for the Centre, reiterated the government's stand that it was opposing the practice and said that this has been banned in many countries like the US, the UK, Australia and around 27 African nations. The practice causes irreparable harm to girl children and has many health repercussions, the top law officer said and referred to Article 25 to highlight the point that a religious practice can be stopped if it was against "public order, morality and health". The bench has now posted the matter for further hearing on August 9 and 10.