When religious freedom collides with the right to life
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Context
A 9-judge Constitution Bench of the Supreme Court is currently hearing petitions challenging the constitutionality of Female Genital Mutilation (FGM), a practice prevalent in the Dawoodi Bohra community. The core legal dispute examines whether this customary practice—locally known as 'khafz'—is protected under religious freedom or if it violates fundamental human rights. This landmark case will determine the boundaries between religious denominational autonomy and individual bodily integrity in India's constitutional framework.
UPSC Perspectives
Polity and Constitutional Framework
The central conflict in this case pits religious freedom against the fundamental right to life. Defenders of FGM argue that it is protected under (freedom of conscience and free profession, practice, and propagation of religion) and (freedom to manage religious affairs). However, the Supreme Court relies on the Essential Religious Practices doctrine to determine if a custom is absolutely fundamental to a faith. Even if a practice clears this test, it remains subject to public order, morality, health, and other fundamental rights. Critics and legal experts argue that FGM severely violates a woman's right to bodily autonomy, dignity, and privacy—all integral facets of . This case is part of a larger constitutional reference that includes other religious disputes, such as the entry of women into the Sabarimala temple, allowing the judiciary to lay down a comprehensive framework on constitutional morality versus traditional religious customs.
Social and Legal Governance
From a legal standpoint, FGM physically harms young girls, bringing it squarely under the purview of strict criminal laws. The Union Government has clarified that the practice constitutes grievous hurt under the (Sections 320-326). Since FGM is typically performed on minors around the age of seven, it also invites severe prosecution under the . Socially, the practice is rooted in patriarchal notions aimed at controlling female sexuality and ensuring chastity, reinforcing deep-seated gender inequalities. Treating a minor's forced submission to FGM as 'voluntary' is a deeply flawed legal argument, as children are inherently incapable of providing informed consent. Despite the availability of broad criminal statutes, India currently lacks specific anti-FGM legislation, highlighting a critical gap between statutory availability and ground-level enforcement when dealing with minority religious customs.
International Relations and Human Rights
FGM is globally recognized as a gross violation of human rights, a form of torture, and severe gender-based violence. The absolute prohibition of torture is considered a fundamental, non-derogable rule of international law, known as , which is universally binding and supersedes domestic laws or religious customs. India is a signatory to major international human rights treaties, including (the core international treaty on women's rights) and the . Permitting FGM to continue unabated places India in direct contravention of these binding international obligations. The Indian judicial system often imports international human rights norms to expand the scope of domestic fundamental rights, as seen in landmark privacy and gender justice cases. With the World Health Organization strongly advocating for FGM's total eradication, the Supreme Court's impending ruling will heavily impact India's standing in global human rights compliance.