Clash of the Titans or Friendly Bedfellows? Freedom of Religion or Belief and Women’s Rights in India

Abstract

This article uses a case study of India to examine the contested relationship between two sets of human rights—freedom of religion or belief on the one hand, and women’s rights to life, dignity, equality, non-discrimination, sexual autonomy, and bodily integrity on the other. Through a critical analysis of the practice of female genital mutilation within the Bohra Muslim community, which is currently the subject of a constitutional challenge in the Supreme Court of India, this article illustrates how the contestations between the two sets of rights can be more effectively understood and addressed using the international human rights framework.

Keywords:

• India
• female genital mutilation
• women’s rights
• freedom of religion or belief
• international human rights
• patriarchy
• state obligations

Notes

1 Despite the lack of legal recognition, there are many people in India who consider themselves atheists or who do not practice any religion.

2 These include the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), Convention on Elimination of Discrimination Against Women (CEDAW), Convention on the Rights of the Child (CRC), Convention on Elimination of Racial Discrimination (CERD) and the International Convention on the Prevention and Punishment of the Crime of Genocide, 1948. India is yet to ratify The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and The International Convention for the Protection of All Persons from Enforced Disappearance. .More details about India’s status of ratification of human rights treaties is available at https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=79&Lang=EN, accessed on 16 December 2020.

3 These are: Type I—Partial or total removal of the clitoris and/or the prepuce (clitoridectomy); Type II—Partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora; Type III—Narrowing of the vaginal orifice with creation of a covering seal by cutting and appositioning the labia minora and/or the labia majora, with or without excision of the clitoris (infibulation); and Type IV—All other harmful procedures to the female genitalia for non-medical purposes, for example: pricking, piercing, incising, scraping and cauterization. For further details, see https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation.

4 Details of the campaign and its activities, including research and documentation, are available at https://www.wespeakout.org/, accessed on 16 December 2020.

5 https://dbwrf.org/aboutus.

6 The press release may be accessed at https://wcd.nic.in/sites/default/files/Reuters_poll_PR.pdf.

7 Sunita Tiwari vs. Union of India and Others, Writ Petition (Civil) No. 286 of 2017.

8 Intervenor Application No. 43032 of 2017 of Ms. Masooma Ranalvi in Writ Petition (Civil) No. 286 of 2017, https://theleaflet.in/wp-content/uploads/2018/08/Read-the-Written-Submissions-by-Senior-Advocate-Indira-Jaising-on-behlaf-of-intervenor-Masooma-Ranalvi.pdf.

9 Sunita Tiwari vs. Union of India and Others, order dated 24 September 2018. https://indiankanoon.org/doc/181206322/.

10 Kantaru Rajeevaru vs. Indian Young Lawyers’ Association, Review Petition (Civil) No. 3358/2018 in Writ Petition (Civil) No. 373/2006, order dated 14 November 2019. https://www.sci.gov.in/pdf/JUD_6.pdf

11 For details, see Chawla, Srishti. 2019. The Constitution of India and International Law, IPLEADERS BLOG, (Apr. 19), https://blog.ipleaders.in/constitution-of-india/.

12 Indian Young Lawyers’ Association vs. The State of Kerala 2018 SCC Online SC 1690, Justice Indu Malhotra’s dissenting judgment, para 8.2.

13 Supra n. 8, para 28.

Additional information

Notes on contributors

Saumya Uma

Saumya Uma is a Professor of Law and Director of Centre for Women’s Rights at Jindal Global Law School, O.P. Jindal Global University, India. She works at the intersections of gender, human rights, and the law.