A Chance to Redeem and Rationalise the Law: Reflections on Recent Judicial Inroads in India

In India often it is seen that the male members of society prescribe limits for women, deciding what is good for them, what they can yearn for and even prescribing what women can do with their own bodies. Interestingly, such practices and societal norms were duly sanctified through customs, religious prescriptions, and later through legislations. Post-independence India witnessed an era of progressive social reform movements, legislative developments, as well as bold judicial interventions which altogether brought down many of the rituals, taboos, and gender-based inequalities.

Currently, India is going through a state of bewilderment for gender sensitivity as well as for women's rights and equality. The Constitution¹ provides for equality of all individuals and grants them equal protection before the law. Despite this, gender-based discriminatory practices take place under the garb of religious and cultural norms. However, the Indian judiciary has generated many rays of hope for basic human rights of women in a society essentially driven by patriarchy. Time and again the Supreme Court has played the vanguard role for the enforcement of fundamental rights of women enshrined under the Constitution. The Supreme Court has recently dealt with cases of discriminatory practices especially against women, such as globally ostracised female genital mutilation/cutting (FGM/C) as well as excommunication of Parsi women upon marrying a non-Parsi man. These path-breaking judicial decisions have once again highlighted the phase of remarkable perplexity for gender sensitivity as well as the quest for women's rights and equality.

In this article, two concrete cases will be analysed to provide a glimpse into the effects of wider judicial horizons of the Supreme Court and how it is taking on the task of “socio-legal engineering” for upholding women's rights and equality.

Female genital mutilation

Female genital mutilation/cutting (FGM/C) is a global concern, which amounts to major human rights violation of girls and women worldwide. Due to the disruptions caused by the COVID-19 Pandemic, UNICEF estimates that two million additional cases of FGM/C may occur over the next decade.² According to the World Health Organisation (WHO), FGM encompasses “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”.³

Despite the global and national efforts to promote abandonment of the practice, FGM/C remains widespread in different parts of the world. Over 200 million girls and women have undergone FGM/C. The practice is most common in 30 countries across Africa and in some countries in Asia (particularly the Middle East) and Latin America and among migrants from these areas.⁴ In India, this practice is common amongst the Bohra community, where the ritual is referred to as “Khatna” or “Khafz/Khafd”.⁵ Khatna essentially involves cutting the tip of a girl's clitoris when she is 6-­7 years old.⁶ It is performed by Mullanis i.e. women who have a semi-­religious standing, by traditional cutters, or by any woman with some experience. As some families become more interested in a safe circumcision, they prefer to go to doctors.⁷ Members of the family are usually involved in the decision-making about FGM/C, although the elder women of the family are usually responsible for the practical arrangements for the ceremony.

There are various socio­-cultural reasons for FGM/C, which vary from region to region. Underlying all these reasons, however, is deep-rooted discrimination against women and girls. The various justifications that have been advanced for FGM/C include religious dicta, an aid to female hygiene and a tool to control or reduce female sexuality. In many places, the practice is often linked to a ritual marking the coming of age and initiation to womanhood. In a study conducted amongst women of the Dawoodi Bohra community, it was found that religious requirements, traditions and customs and the wish to curb the girl's sexuality were the main reasons for the flourishing practice.⁸

FGM/C, in many instances, is also perceived as a way to cleanse a girl from impure thoughts and desire. The perception is that a girl who is circumcised does not get as aroused as one who is in “qalfa” (meaning with a clitoral hood) or one whose clitoris is intact. Sexual desire in girls and women is viewed as something from which they need “protection”. This perceived protection extends beyond protection of the girl herself to the protection of the whole family's reputation.⁹ In many places, the belief that the clitoral head is “unwanted skin” or that it is a “source of sin”, which will make them “stray” out of their marriages are reasons that lie at the heart of a practice that predates Islam but thrives amongst Bohras.

Against this backdrop, in Sunita Tiwari v. Union of India,¹⁰ the practice of FGM/C was raised before the Supreme Court as a public interest litigation under Article 32¹¹ of the Constitution. This petition brought to light the dark secret of “khafz” or female genital mutilation in India. The Supreme Court has questioned the practice of FGM/C or khatna or khafz as a violation of fundamental rights and integrity of the girls. In fact, the practice of FGM as “essential religious practice” has also been questioned. The Supreme Court observed that no one has the right to violate the bodily privacy and integrity of women in the name of religion. The respondents argued that FGM or khafz is integral to religious and cultural beliefs, and hence protected under Articles 25¹² and 26¹³ of the Constitution (right to practice and propagate religion). While taking an emphatic objective view, D.Y. Chandrachud, J. countered these contentions and asked, “Why should the bodily integrity of a woman be subject to some external authority? One's genitals are extremely private affairs”.¹⁴

At the international level, the United Nations General Assembly (UNGA) in 2006 specifically condemned religious considerations as a justification for violence against women.¹⁵ In pursuance of the same, the UNGA specifically adopted a resolution to impose a worldwide ban on FGM in 2012,¹⁶ and again in 2014.¹⁷ Despite which nearly seventy-five per cent of women of the Dawoodi Bohra community in India had subjected their daughters to the cruel practice.¹⁸

In the recent cases, the Supreme Court has held that the right to privacy includes the right to bodily integrity as a right emanating from Article 21.¹⁹ 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,²⁰ while provisions also exist for punishing sexual assault committed by deadly weapons.²¹ Moreover, voluntarily causing grievous hurt upon the body of a person using dangerous weapons is punishable for up to ten years according to the Penal Code, 1860 (IPC).²² However, while provisions regarding grievous hurt do exist in IPC, the need for a specific provision which addresses the inhumane act of female genital mutilation remains absent.

The core of the legal battle on FGM centers on the argument that, “it amounts to a serious violation of right to life and bodily autonomy of women and girls under the garb of religious practice”. This case will require the Supreme Court to balance the doctrine of essential religious practices with the rights of women and girls thereby calling the judicial order of the highest court to take a decisive stance, in sync with India's constitutional and international obligations. What remains to be seen is would the Supreme Court be able to put an end to a discriminatory, cruel, and harmful customary practice.

Excommunication of a Parsi women

Currently being heard by the Supreme Court, Goolrokh M. Gupta v. Burjor Pardiwala,²³ attempts to answer the question of whether a Parsi woman “loses her religious identity and gains the religious identity of her husband, upon marriage to a Hindu man under the Special Marriage Act”. The High Court of Gujarat in this case, infamously held that when a Parsi woman marries a non-Parsi person under the Special Marriage Act, 1954²⁴, she ceases to be a Parsi unless she obtains declaration from a competent court stating that she has continued to practise her religion even after marriage.

This judgment of the Gujarat High Court is criticised herein on three grounds. First, it goes against the basic tenet of equality mentioned in Article 14²⁵ of the Constitution of India. Unlike a Parsi woman, a Parsi man married to a non-Parsi woman does not face ostracisation of any kind and is allowed to enter sacred institutions of the Parsi community. Second, the judgment infringes upon the fundamental right to religious freedom and identity of Parsi women granted under Article 25 of the Constitution. Third, the High Court's judgment is in direct opposition to the very object behind enacting the Special Marriage Act i.e. to facilitate inter-religious marriages without individuals having to forgo their respective religious identities. This paper focuses upon the third ground.

By accepting the argument made by the Parsi trust, “that a woman is de facto excommunicated upon marrying a man from another religion”, the Court grants the leaders of a religion the final say on what it means to be Parsi. By holding that a woman's religion is that of her husband's after marriage, the High Court locates her religious identity in her family, not in her as an individual. It further creates a “deemed conversion” for all women marrying men of a different religion in the absence of any religious ceremony. In its judgment, the High Court notes that in the absence of any law by Parliament, a woman's religious identity “shall merge into that of her husband” and that such a rule is “generally accepted throughout the world”. Therefore, the Gujarat High Court has effectively made a woman's religious identity conditional upon her father or husband. By locating a woman's religious identity in the family and not the individual, the judgment stands in direct contradiction to Article 25 of the Constitution.

With the enactment of the Special Marriages Act, 1872²⁶ inter-religious marriage was recognised for the first time in India provided that, “both parties made a declaration to not profess any particular religion”. The Special Marriage Act was amended in 1954, consequent to which a shift was witnessed in the new legislation. In stark contrast, Section 4 of today's Special Marriages Act makes no mention of religion in listing out the conditions for a valid marriage.²⁷ This shift from the 1872 Act to the present-day legislation was cited by Kureshi, J. in his dissenting opinion as part of the Division Bench. He concludes that, “the legislature had specifically provided for the recognition of inter-religious marriage without the need for either spouse to renounce their religion or convert to the religion of the other”. He also added that the current Special Marriages Act was a “reflection on the post-independence constitutional philosophy of a secular State”.

Goolrokh M. Gupta case²⁸ promises to be an intriguing case that brings up to the forum several key constitutional questions. What remains to be seen is whether the Supreme Court would be able to accommodate the individual's views on religion over the communitarian absolutism of the Parsi trust.

Conclusion

As has been witnessed in the past, the higher judiciary has never hesitated whenever issues of “social justice” are thrown into its arena. There have been times when there is resistance to change in social mores, customs, religious practices, but the judicial inroads have sought to superimpose constitutional values upon the so-called prevailing societal morality. In both these cases, it is imperative upon the Supreme Court to take a decisive stance, in sync with India's constitutional and international obligations. Will these judgments bring about the much-awaited change in the societal attitude towards treatment of women. There is a hope that the Supreme Court would certainly change the status quo and lead the way for making decisive inroads for basic human rights of Indian women in a society essentially driven by patriarchy.