Justice Amanullah in Sabarimala hearing: ‘Female genital mutilation aberration to human anatomy’

Hearing concludes for the day

Senior Advocate Jaideep Gupta: I appear in the Sabarimala matter for the State of Kerala. I started by saying, my lord, I am representing a state in the midst of a political change. Therefore, I am going to disappoint a lot of people in this room by not addressing on Sabarimala itself.

CJI: We are only evaluating on the premise of hypothetical basis that if it were to be a practice then what is the consequence. If you refuse to follow this practice then it is excommunication.

Pasha: Not at all. There is no excommunication

Pasha: It is like circumcision for boys. There is no worldly sanction for anybody for anybody who doesn't get circumcised

Justice Bagchi: From a public health point, there is a clear difference between circumcision and genital mutilation.

Pasha: It is not mutilation. It is actually symbolic circumcision. It is called a Hoodectomy in the west

CJI: Ultimately, revert back to the as my brother is asking. The effect is that if you refuse to obey this perceived religious dictate, the consequence is your excommunication, and therefore raises the question of relevance if the 1949 Act comes into force, and their view on how it has been upheld through para 61 by Justice Ayyangar, view that becomes the subject matter of reconsideration.

Advocate Pasha: I just want to clarify that this is not a ground for excommunication and also factually of course the fact that it is not mutilation, the fact that it is a wrong description, that's separate. That is not a subject matter of excommunication for sure.

Justice Nagarathna: Is there no law banning this mutilation?

Luthra: 59 countries have banned. In India there is none

Justice Amanullah: Mutilation, the word itself means that it doesn't serve any purpose. It is like a contortion to a human anatomy...This is pure and pure aberration to a normal physical anatomy

Luthra: It is done at the age of 7 when a person is a minor incapable of giving consent and because it is considered to be part of belief system though not ordained by the holy book.

Justice Amanullah: This is mandatory and fundamental under Dawoodi?

Luthra: That's the claim

Luthra: My client I represent Dawoodi Bohra lady who complains about female genital excommunication. I will touch about it later who has been excommunicated, her father and her child has been excommunicated. In such a situation, there has to be a protection of that right as against the religious denomination

Luthra: In 1950 we had gamechanger we got the constitution. The constitution changed the rules of the game because the constitution brought out a series of rights. things which were not acknowledged to us by a colonial master became fundamental to us. It was the recognition on what had existed in us by the constitution and the constitution gave itself...We must consider this that religious beliefs therefore will have to be seen but to test them and i say is to test them to understand the contours of 25. Is it to be seen alone or is it to be seen in relationship with other rights and to what extent?

Hearing resumes after lunch break

Justice Nagarathna: So when the matter goes to 5 judge bench the question whether it would be referred to a larger bench can also be considered by the 5 judge bench. They will refer it to 7 then because they are bound by the reference order or not or they can say that the reference itself was bad

Ramachandran: The five judge bench records the fact of the existence of 2016 Act records the submission of Solicitor General that the question of validity of practice of excommunication still survives and therefore the five judge bench has sent me here saying that of the 7 questions before the 9 judge bench...

CJI (interjects): Mr Raju. The practice of excommunication was bound to survive because 1949 Act had been struck down by this court upholding by majority the practice of excommunication. So the practice stood revived by virtue of the judgment by this court. Now this practice has been legislatively again acknowledged in 2016 Act if you go into the definition clause. It is again acknowledged that this practice is there

Justice Aravind Kumar: Mr Ramachandran pleas come to the prayer in your writ petition. Is there an application for amendment

Ramachandran: Yes that is the whole point

Justice Aravind Kumar: What is that application?

Ramachandran: Either i proceed now according to my note where every aspect of these doubts have been addressed.

CJI: Proceed please.

Justice Sundresh:  If you will watch, what our sister is putting through, every religion will break, every constitutional court will have to be closed because ultimately what you are seeking out before us, it is your belief and your practice or even the injury that emanates out of it, whatever nomenclature you can say, it's a human evaluation, whatever, that's only a consequence. Vis-a-vis the, the right of the another one or group of persons, which may be in the form of religious denomination, as you rightly said, it may be a form. It may be a structure you can give. Now, if this dispute between, between two entities are allowed to be…what is regressive, what is, what is acceptable, what is excessive, these are all relative terms. Now, everybody will question everything. Then if you allow that then and see… Now, it is more like an in-house setup where you want to say what you are doing is wrong. In your case, you may have a civil wrong committed to you. In other case, another member will say, "I don't agree with this. This is, is regressive." The other person will, will say that this is absolutely obnoxious. To what extent we can go into these aspects, in a country where like always it is progressive and it's on the move, we undertake this process, especially when consciously legislation has given, this extraordinary power to be used sparingly by the state under Article 25(2)(b). In the guise of violation of fundamental right, bringing your right under Article 25(1) as against the other side in 25(1), we'll be mixing up too many things.

Justice Nagarathna: What is unique about India as compared to any other region. See we are a civilisation why are we a civilisation despite having so many pluralities and diversities. I said diversity is our strength. We are still a civilisation despite you may call a sovereign democratic republic continue. There is a constant. One of the constants in our Indian society is the relationship of human beings man woman and child with the religion. Now how a religious practice or a matter of religion is questioned, where it is questioned, whether it can be questioned, whether it has to be a question within a denomination for a reform or whether the state will have to do or you want the court to adjudicate upon all these aspects. This is troubling us. What we lay down is for a civilisation that is India. India must progress despite all its economy, everything there is a constant in us. We can't break that constant. That is what is troubling us

Justice Nagarathna: A person belonging to a particular religious denomination which you are representing, he is questioning a practice can that be adjudicated upon in an article 32 petition

Ramachandran: If it involves fundamental rights, it can be is my answer

Ramachandran: I am going to show in the course of my submissions that in the 76-year history of this court, 5 great dissents have become the law of the land subsequently.

Justice Nagarathna: What is binding is the majority judgment

Ramachandran: What is before the 9 judges is both the majority and also the great dissent which is being commended for acceptance.

CJI: Your argument...that there was a existing law duly protected under 25 2 being an existing law. This court should not have interfered because that law had protection of all those parameters which are provided in 25 2. Nevertheless it was interpreted we were not heard. Today there is another statute of 2016. If it is inadequate the law should be interpreted it should be read down in a manner that the protection of 1949 is restored and if it is adequate enough then the law should be protected and this court should not interfere in the existing law. That is your entire case

Justice Nagarathna: His right as a ...under 25 1 to propagate and under article 26 2 under denomination was rather vitiated therefore he challenged against the state

Ramachandran: Only he alone. His subjects didn't matter

Justice Nagarathna: Cannot comment on that but he had the right to test the validity of it. He could have gone under 226 but he came under 32

CJI: Right was interpreted by this court. He had only locus to come and in that locus he should have in all fairness...directly stakeholders and directly likely to be affected by the outcome

Bench: So your argument before us is while interpreting 26 in relation to 25 2 b we should declare the 1962 judgment as not good law

Ramachandran: My conclusion on issue number one, what is the scope and ambit of the right of freedom of religion, and Article 25, I have summarised, once a practice which is conducted in response to secular and social actions of an individual or which has significant secular and social consequences for that individual, cannot be the subject of constitutional protection under Article 25 and consequently cannot be a matter of religion on Article 26.

Bench: What is the situation in the community? Is the excommunication still going on

Ramachandran: Yes

Ramachandran: Mr Siddharth Luthra will follow me on female genital mutiliation that its the fear of reprisal that disallows us to speak

Senior advocate Raju Ramachandran resumes submissions on the excommunication- Dawoodi Bohra case

A nine-judge bench will shortly hear the Sabarimala reference