Understanding the Supreme Court’s latest judgement mentioning female genital cutting in India
On November 14, after a year of silence on the female genital mutilation/ cutting (FGM/C) case pending before it, the Supreme Court of India mentioned that the case will be referred to a seven-judge Constitution bench. It is likely that the case will now be heard in conjunction with three other petitions dealing with women’s rights and freedom of religion: cases about Hindu women’s entry into the Sabarimala temple, Muslim women’s entry into mosques, and the entry of Parsi women married to non-Parsis into fire temples. Previously, in its September 2018 order, the Court had referred the FGC case to a five-judge Constitution bench. Since then, the case had been pending. On November 14, however, the Supreme Court brought up the FGC case while hearing a batch of review petitions in the case about Kerala’s Sabarimala temple, where women of menstruating age were traditionally not allowed to enter. The review petitions challenged the Court’s 2018 order which lifted the ban on women’s entry into the temple. In its November 14 judgement, a five-judge Supreme Court ruled that the debate on women’s entry into the temple overlapped with other cases about gender and religious rights that are pending before the Court, including women’s entry into mosques and fire temples and female genital mutilation/cutting among Dawoodi Bohras. It stated that a larger bench first needs to rule on the interpretation of the very principles governing the fundamental right to freedom of religion in the Constitution, before passing judgement on all of those cases from different communities. The implications of clubbing these various cases under one umbrella are yet to be seen, but the Court’s judgement does raise some concerns. Although these cases share the common theme of women’s rights within religion, the cultural ritual of cutting minor girls’ genitals is very different in substance from the rules restricting women’s entry into places of worship. It would be ideal if each of these issues are evaluated separately, on a case-by-case basis. Sahiyo believes that the matter of FGC needs to be treated with a little more urgency. Fourteen months have already passed since the Supreme Court first referred the FGC case to a Constitution bench last year. That bench was never formed, and now the Court’s decision to first adjudicate on larger questions of law is likely to stall hearings that may have been scheduled in the FGC case. Since the practice of FGC involves causing bodily harm to young girls, every delay puts more girls at risk of being cut. A quick recap of the FGC case In April 2017, Delhi-based lawyer Sunita Tiwari filed a Public Interest Litigation (PIL) in the Supreme Court seeking a ban on the practice of female genital cutting (also known as khatna, khafz, sunnath or female circumcision) in India. FGC is practiced among the Dawoodi Bohras and other Bohra sects in India, as well as among certain Sunni Muslims in the state of Kerala. Tiwari’s PIL, however, refers only to FGC among the Dawoodi Bohras. After Tiwari’s PIL was admitted in the Court, other intervention petitions were also filed in the case, some supporting a ban on the ancient practice, and one party (the Dawoodi Bohra Women’s Association for Religious Freedom) defending FGC on the grounds that it is an essential religious practice for the Bohras. The Dawoodi Bohra Women’s Association demanded that the matter of FGC be heard by a Constitution bench since it was about the Constitutional right to religious freedom. The case was heard by a three-judge bench which observed during a hearing in July 2018, that the “bodily integrity of women” cannot be violated. However, in September 2018, the bench referred the case to a five-judge Constitution bench. This meant that the practice of cutting a girl’s genitals — which the United Nations classifies as a human rights violation — would now be scrutinised through the lens of religious freedom. In light of the latest Supreme Court judgement, this will continue to be the case, except that now a larger, seven-judge bench will first examine the interpretation of Articles 25 and 26 of the Constitution pertaining to the right to religious freedom, before adjudicating on matters of FGC and women’s entry into places of worship. What the Court said: Majority and Minority judgements The Supreme Court’s judgement on November 14 was not unanimous. Three of the five judges on the bench delivered the majority judgement, in favour of referring the Sabarimala, FGC and other cases to a seven-judge Constitution bench. This 9-page majority judgement was authored by Chief Justice Ranjan Gogoi. The other two judges (Justices Nariman and Chandrachud) authored an elaborate 68-page dissent, insisting that there was no merit to the review petitions in the Sabarimala case and that the other cases of FGC, mosque entry or fire temple entry should not be clubbed together with the Sabarimala issue. The majority judgement stated the following: “The issues arising in the pending cases regarding entry of Muslim Women in Durgah/Mosque;…of Parsi Women married to a non-Parsi in the Agyari;…and including the practice of female genital mutilation in Dawoodi Bohra community…may be overlapping and covered by the judgment under review. The prospect of the issues arising in those cases being referred to larger bench cannot be ruled out…The decision of a larger bench would put at rest recurring issues touching upon the rights flowing from Articles 25 and 26 of the Constitution of India.” The majority judgement specified that the larger bench would essentially have to answer seven questions about the principles of Articles 25 and 26. These questions include these four points: What is the interplay between Constitutional freedom of religion and other rights granted in the Constitution, particularly the right to equality and prohibition of discrimination on the grounds of religion, sex, race, caste, etc? What exactly does “constitutional morality” mean? To what extent can the Court determine whether a practice is essential to a religion or a religious denomination? To what extent can the Court give judicial recognition to
U.S. Sahiyo Board Member Spotlight: A. Renee Bergstrom, EdD
Sahiyo’s U.S. Advisory Board provides strategic advice to the management of Sahiyo and ensures that we continue fulfilling our mission to empower communities to end female genital cutting, and create positive social change through dialogue, education, and collaboration based on community involvement. For November, we are featuring A. Renee Bergstrom, EdD, a survivor who has worked as an advocate for the abandonment of female genital cutting for decades. 1) Can you tell us a bit about your background? I have been interested in using my story to help end Female Genital Mutilation/Cutting (FGM/C) for most of my adult life. I first became involved internationally in 1981 when I applied for a grant from the Women’s Desk of Lutheran World Federation that led to my spending two weeks in Geneva, Switzerland. I spoke with leaders involved in the FGM/C issue, including Marie Assaad, Egypt’s gentle warrior, who was then Deputy Secretary General of the World Council of Churches. The timing was not right politically for my voice to be heard. I would have been seen as another Western woman interfering in other cultures. A group of African women told me to go home and deal with my country’s cultural issues and then come back and compare notes on culture change strategies. This challenge inspired me to continue my college education. I graduated with two bachelor’s degrees from Winona State University in 1988 and 1989, a Master’s degree in adult education from the University of Minnesota in 1992, and a doctorate in education in leadership from Saint Mary’s University of Minnesota in 2009. My professional career was with the Mayo Clinic in Rochester, Minnesota. I served as a phlebotomist for four years, a certified pulmonary function technologist for seven years, and as a patient education specialist for twenty-three years. I also served on the Mayo Clinic Program in Professionalism and Ethics Communication in Healthcare Faculty. I retired from Mayo in 2012. I was an adjunct professor in Women and Gender Studies at Winona State University in 2010 and 2011. In 2008, I became involved with the Academy of Communication in Healthcare and graduated as ACH Faculty in 2017. My female justice advocacy included mentoring a dynamic young Somali woman, Filsan Ali. In 2015, we produced a brochure for pregnant, infibulated Somali women to share with their physicians or midwives to promote shared decision-making regarding labor and delivery. We distributed the brochures throughout the United States. In the summer of 2016, Filsan and I were interviewed by John Chua, PhD, for his documentary, The Cut. I participated in the End Violence Against Girls Summit on FGM/C in Washington, D.C. on December 2, 2016. On the same day The Guardian published my story including a portion of Dr. Chua’s documentary. I have since been interviewed by several others, including photojournalist Meeri Matilda Koutaniemi of Finland who is writing a book about FGM/C survivors. After going public, two other white Christian North American FGM/C survivors reached out to me. They are younger than my children. One woman came to my home, and we worked with the other by phone to write an article that we seek to publish. Although most Christian denominations do not condone FGM/C, we hope to reach Christian readers from churches that do. Our stories may help others have the courage to speak. Christians need to face the damage done by misinterpreting Biblical passages in order to control women. 2) When did you first get involved with Sahiyo and what opportunities have you been involved in? I was invited to participate in the Sahiyo Stories in Berkeley, California, in May 2018. I so appreciated the opportunity to decide for myself which aspect of my story to tell and illustrate. After much contemplation, I chose to focus on being silenced because it had the greatest long term impact on my life. The Story Center staff provided excellent professional guidance in shaping the videos. The shared community spirit was an additional blessing and key to our ability to complete the daunting process of revealing such personal parts of our lives. I participated with Mariya Taher in showing Sahiyo Stories at the End Violence Against Women Conference at Lesley University, Cambridge, Massachusetts on November 9, 2018. I practiced my ACH Winter Course workshop that uses Sahiyo videos at the Knowledge and Evaluation Research (KER) unit at Mayo Clinic, Rochester, MN. I was encouraged to discuss with appropriate faculty the inclusion of the videos in Mayo Medical School curriculum on January 9, 2019. I facilitated an ACH Winter Course workshop entitled Patient Engagement Through Brief Focused Videos that featured our Sahiyo stories on January 31, 2019. It was well received, although participants were quite overwhelmed by the content. 3) How has your involvement impacted your life? I feel so blessed knowing that my story is now seen as helpful to young women who are standing up to their political, cultural and religious leaders to end FGM/C worldwide. Also, being free of the burden of silence has made me holistically healthier. I experience an ineffable spiritual uplifting. 4) What pieces of wisdom would you share with new volunteers or community members who are interested in supporting Sahiyo? Sahiyo has wisely broadened their scope to include other cultures besides their original focus on the Dawoodi Bohra community. Universal attempts to control women’s sexuality is something for which we women of the world must unite.