By Aditya Aamir
The apex court has held that morality under the Constitution is not public morality or the morality of the multitude. Constitutional morality aims for a pluralistic and inclusive society; that even a minuscule part of society may aspire and prefer different things. In the context of LGBTQ+ rights, social morality itself recognizes the rights of sexual minorities to assert and pursue their preferences.
Yet another such case facing test is a public interest litigation Sunita Tiwari vs Union of India. The case relates to the practice of female circumcision practiced by the Dawoodi Bohra community. Unlike Jews and mainstream Muslims, Dawoodi Bohras read circumcision in a gender-neutral sense. For women, circumcision described in Bohra religious texts involves making a cut on the prepuce or the foreskin of the clitoris to further expose the clitoris to make it more sensitive.
It’s similar to the vaginal cosmetic surgery called clitoral hoodectomy practiced by an increasing number of women in the West to enhance sexual pleasure. Three women of the Dawoodi Bohra faith who claim that their circumcision was performed in a slipshod manner which left it damaged, leaving them incapable of experiencing sexual pleasure, support the PIL. Besides the PIL also has the backing of the anti-FGM (female genital mutilation) activists.
The case has caught the attention of the media. It is a case against patriarchy. The practice is sought to be defended by some 70,000 Dawoodi Borha women, who are crying “cultural imperialism”. They argue that their right to be circumcised and to circumcise their daughters is protected by the right to freedom of religion under Article 25 of the Constitution.
They have produced 10th-century texts to show that sexual pleasure of a woman is central to the tenets of their faith. The texts actually impose a duty on man to ensure that the woman climaxes before he does. The court has during the proceedings observed that any interference with the bodily integrity compromises the child’s right to privacy. The court’s observations that no progressive modern woman can possibly want this for herself has not gone down well with the Bohra women.
It is here that that the apex court’s observations in #377 will be tested: An unpopular position once again is in conflict with prevalent social morality. Will the court judge morality from the perspective of a neo-liberal agnostic judge? The idea of the man as the guru and the woman as the disciple and that their confluence is necessary to attain salvation pervades bhakti and Sufi poetry and literature. Will the Supreme Court sit in judgment over all these traditions and test if they are derogatory to women? Will the bhakti tradition of Krishna devotion be reduced to its metaphor of eve-teasing and tested to see if it agrees with a neo-liberal idea of women’s empowerment?
Is the right to bring up children not part of the right to privacy? Do ear and nose piercings of children not constitute assault on their bodily integrity? The court is also relying on a WHO classification of FGM, which does not differentiate between circumcision and mutilation. Besides, the question whether the practice is harmful to health is still to be settled.
The landmark verdict that decriminalized #377 continues to resonate across the world. For the New York Times it was the top news on Page 1 the day after. And liberal circles have been euphoric. But there are those who are cautiously concerned, seeing in the verdict a hidden agenda.
“Some history folks,” writes a San Diego resident of Indian-origin. “Right-wing political parties in other countries used the same opportunity to spew more hatred and actually won mandates among common people when similar wins of gay marriages or similar rights of marginalised were won with the help of Courts in their respective countries.”
The feeling is the Supreme Court will be tough on lesser issues while lax on bigger issues such as Babri and that intellectuals, media and social activists understand this and lay the ground for turning the historical win to an actual on the ground honest win. (IPA Service)