While hearing a petition against Female Genital Mutilation (FGM), practiced in the Dawoodi Bohra Muslim community in India, the Supreme Court asked, "Why should anyone have the power based on religious practice to touch the genital of a girl."
A three judge bench headed by Chief Justice Dipak Misra asked, "Why and how can the bodily integrity of an individual be part of the religion and its essential practice."
"Why should the bodily integrity of a woman be subject to some external authority? One's genitals is an extremely private affair," asked Justice Chandrachud.
Senior advocate Indira Jaising appeared on behalf of the petitioner Sunita Tiwari, a Delhi-based lawyer. Senior advocated Abhishek Manu Singhvi argued for the Dawoodi Bohra Women's Association for Religious Freedom, The Times of India reported.
"It is a ritual performed on every girl child within the Dawoodi Bohra religious community without any medical reason and does not have any reference in the Quran ," the petition reads, The Press Trust of India reported.
"It violates the rights of the child and human rights. It also violates the Universal Declaration of Human Rights and is a crime in the Unites States of America..." it said.
"We have also prepared a report on the consequences it has on adult life and the trauma that stays. The act amounts to an offence under the IPC and the POCSO," Jaising said, referring to the Protection of Children from Sexual Offences Act (POCSO) 2012 and the Indian Penal Code, Live Law reported.
Comparing FGM to male circumcision, Singhvi said that "khatna" involved a minute nipping of the female genitals, and argued that it was protected by the Constitution under the fundamental right to religion and religious practices.
"There is a distinction between FGM and female circumcision. The latter is a minute process which is practised by 2 Islamic communities. It is being supported by 95% of the women. This raises issues involving Articles 25, 26 and 29 as well as Article 14," he said.
The petition said that FGM has nothing do with religion and is a cultural practice.
The Modi government is supporting complete ban on the practice of female circumcision.
Attorney General KK Venugopal argued that male circumcision had certain health benefits, like reducing infection from HIV, but FGM was a serious health threat.
"Unlike male circumcision, genital mutilation on a female leads to serious vaginal and and uterine complications. The fundamental right to religion and religious practice is always subject to public health and morality," Venugopal said.
"The 'sati' was also an ancient practice. But any such practice has to fulfil the conditions of public order and morality..." he said.