Quest for Women’s Right to Bodily Integrity: Reflections on Recent Judicial inroads in India

Invariably, the male members of society have always sought to prescribe limits for women (called Lakshman-Rekha), deciding what was good for them, what they can yearn for as well as even how, when and what women can do with their own bodies. In turn, such thresholds, practices and societal mores were duly sanctified through societal customs, religious prescriptions, and later in the form of legislations.

In the post-independence India, many of the practices, rituals, taboos and gender-based inequalities have been variously brought down by progressive social reform movements, legislative developments as well as through many bold and innovative judicial interventions. India has been witnessing one such phase of remarkable perplexity for gender sensitivity as well as quest for women’s rights, equality and what has now come to be placed under the rubric of women’s “bodily integrity.” The Supreme Court (SC), and in many cases even some of the state high courts, have had the audacity to change the status quo. Their judicial hammerings have sought to lead the way for making decisive inroads for basic human rights of Indian women in a society essentially driven by patriarchy. The practice of discrimination takes place, among others, under the garb of cultural norms, religious mores, and social constructs as well as even under legislations (as has been the case with the 1860 Indian Penal Code [IPC]). The Constitution and many of the statutes provide for equality of all individuals and grant them equal protection before the law. Hence, the role of the courts, especially the higher judiciary, becomes imperative since they are the watchdog for enforcement of fundamental rights enshrined under the Constitution.

The SC has played the vanguard role for protecting the right to life and liberty, protection and promotion of human rights and emerged as the harbinger of hope for the quest of women and “others” to reclaim control over their right to bodily integrity. 
The apex court has recently dealt with cases of discriminatory practices especially against women, such as  globally ostracised  female genital mutilation (FGM), restriction on entry of women at places of worship, issue of adultery and arbitrary practice of triple talaq as well as decriminalisation of unnatural offences. The cumulative effect of these path-breaking judicial decisions have pushed the envelope for realisation of human rights of women and lesbian, gay, bisexual, transgender and queer (LGBTQ) community so as to affirm their inherent right to bodily integrity. 

In this article, five concrete cases will be analysed to provide a glimpse into the effects of wider judicial horizons of the judges of the SC and how it is taking on the task of “socio-legal engineering” for upholding the fundamental human right of women to bodily integrity. Each of these cases has significance in terms of how the issue at stake impinges upon the persona (mind and body) of a woman. The legal ramifications of the apex court’s judgments comprise upholding inherent right of women to have final say in every aspect that affects them ranging from divorce to choices in sexual matters to negating practice that suppresses their sexuality to asserting right to worship unfettered by particular biological process of the body.        

Female Genital Mutilation 

FGM includes procedures that intentionally alter or cause injury to the female genital organs for non-medical reasons. It is also referred to as female circumcision or female genital cutting. It is a cultural practice that has no proven health benefit for girls and women.  It is carried out on young girls between infancy and adolescence, and occasionally on adult women.  According to the reports of the World Health Organization (WHO), more than three million girls are estimated to be at risk for FGM annually. More than 200 million girls and women are subjected to FGM in 30 countries in Africa, the West Asia, and Asia (2018).

FGM is a “harmful cultural practice” that violates human rights of girls and women as enshrined in the 1948 Universal Declaration of Human Rights (UDHR); the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR); and the 1966 International Covenant on Civil and Political Rights (ICCPR). It is also prohibited under the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the 1989 Convention on the Rights of the Child (CRC) (Thomas et al 2009). The United Nations (UN) General assembly adopted Resolution 67/146 on 20 December 2012 that banned FGM worldwide.[1] Each year 6 February is celebrated as the International Day of Zero Tolerance for Female Genital Mutilation.

Against this backdrop, in the case of Sunita Tiwari v UOI (2017), the practice of FGM was raised before the SC as a public interest litigation (PIL) under Article 32 of the Constitution. The SC has questioned the practice of FGM or khatna or khafd or female circumcision (FC)[2] as a violation of fundamental rights and integrity of the girls (PTI 2018). In fact, the practice of FGM as “essential religious practice” has also been questioned. The SC bench observed that no one has the right to violate the bodily privacy and integrity of women in the name of religion (Hindu 2018). The petitioner contended that it is a crime which may be brought within the ambit of the Protection of Children from Sexual Offences (POCSO) Act, 2012. It protects minor girls from sexual assault. The respondents argued that FGM or khafz is integral to religious and cultural beliefs, and hence protected under Articles 25 and 26 of the Constitution (right to practice and propagate religion). 
Underscoring the seminal issue at stake as well as taking an emphatic objective view, Justice D Y Chandrachud countered these contentions and asked: 

“Why should the bodily integrity of a woman be subject to some external authority? One’s genitals are extremely private affairs.” (Hindustan Times 2018) 

By referring UDHR and CRC, it was contended that the practice is inhuman and a violation of Article 21. It could be treated as an offence under IPC. During the proceedings, efforts have been made to refer it to a larger bench, and in turn to delay judicial verdict in the matter. 

Women and girls who have been subjected to FGM suffer lifelong physical and psychological impairments (Hindustan Times 2017). According to the WHO, FGM enhances both short- and long-term health risks to women. It leads to severe pain, excessive bleeding, shock, genital tissue swelling, HIV, infections, prenatal risk, psychological problems and even death.[1] Essentially, the practice has been used as a tool to curb female sexuality. The core of the legal battle on FGM centres on the argument that “it amounts to a serious violation of the rights of children as even minors have a right of security of person, right to privacy, bodily integrity and the freedom from cruel, inhumane or degrading treatment.” (Hindustan Times 2018). In the wake of hearing, the apex court has amply viewed FGM as causing “permanent emotional and mental scar” on girls, violation of the dignity of women and subjugation of women sexuality under the garb of religious practice (Times of India 2018). Thus, any cultural tradition or custom or religious tenet cannot be used as a tool that comes into direct conflict with the values enshrined in the Constitution. It appears that the SC would uphold this foundational value for girls and women who are subjected to FGM. Can judicial order of the highest court bring about death of a cruel and harmful customary practice? This remains to be seen. 

Entry into Sabarimala Temple

The Sabarimala temple in Kerala has traditionally denied entry of female devotees of menstruating age (decided between 10–50 years). The rules that validated the ban were listed under the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965. The Rule 3(b) was challenged before the Kerala High Court (S Mahendran v The Secretary, Travancore Devaswom Board  1993), which conceded the exclusion of “women at such time during which they are not by custom and usage allowed to enter a place of public worship.” 

The rule basically covered women of menstruating age. The high court upheld this rule and was of the opinion that the usage was not in violation of Articles 15, 25 and 26 of the Constitution. The high court also did not find it to be violative of the provisions of Hindu Place of Public Worship (Authorisation of Entry) Rules/Act (1965) since there was the restriction against women on basis of particular age group and not a class.
This rule of denying entry to menstruating women into the Sabarimala temple was challenged before the SC through a writ petition (Indian Young Lawyer’s Association v. Union of India Writ Petition  2006). Five legal questions were posed before the apex court. It dealt with issues of exclusion as discriminatory practice. Whether such exclusion comes within the purview of essential religious practice under Article 25 of the Constitution? Can a religious denomination assert this right under the umbrella of right to manage its own affairs in the matters of religion? The issue of the denominational character of Lord Ayyappa was also placed before the SC especially if Rule 3 permits religious denominations to ban entry of menstruating women.  It was questioned whether the rule is ultra vires the parent act.  Both the parties gave differing interpretations of fundamental rights under Articles 14, 15, 16, 17, 21, 25, 26.

The petitioners claimed that the temple cannot claim the character of an independent religious denomination as it is managed by the Travancore Devaswom Board. The board receives public funds and any restriction on women due to their menstruation cycles was a form of untouchability and “its practice in any form is forbidden” under Article 17. The respondents, however, claimed this restriction as an age-old practice and that the followers of Ayyappa were a separate denomination.

They sought concession, being a separate denomination, that Ayyappa has the right to practise and preserve its Dharma, including its vow of Naishtika Brahmachari under Article 25(1) and the right to privacy under Article 21.
Notwithstanding these contentions, the SC held that any restriction on entry of women to the temple is a discriminatory practice. It was a manifestation of patriarchal rules of restricting only menstruating women and hence had to fall. Any such treatment of menstruating women as impure and polluted was construed as a symbol of exclusion, and tantamount to nothing but forbidden practice of untouchability (Article 17). It has been contended by some that “arbitrary fixation of the age of 10–50 years as the age of taboo is also founded on a patriarchal myth that sexuality of a woman and menopause are the same” (Ram 2018). 

Chandrachud observed: 

“The social exclusion of women, based on menstrual status, is but a form of untouchability which is an anathema to constitutional values.”  
However, the lone women judge on the SC Bench, Indu Malhotra, inexplicably gave a dissenting opinion and sought to justify her view on the ground that “In a secular polity, issues which are matters of deep religious faith and sentiment must not ordinarily be interfered with by courts.” 

Such a view taken by Indu Malhotra, the woman member on the SC bench, has caused a lot of disquiet among women activists and others who want genuine equality of women in all spheres without any fetters, including matters of faith.  

In fact, double standards of the Indian society, duly supported by many women themselves, have been emphatically pointed out by the then Chief Justice of India (CJI) Dipak Mishra. His words will have reverberations for the time to come: “The dualism that persists in religion by glorifying and venerating women as goddesses on one hand and by imposing rigorous sanctions on the other hand in matters of devotion has to be abandoned. Such a dualistic approach and an entrenched mindset results in indignity to women and degradation of their status.” The judgment has not only shaken the orthodox religious beliefs of the Hindu community in Kerala but at the same time perceived with scepticism by the members of other religions. 

It is also important to raise question: Are there any limits to “essential religious practices’’? It could now open floodgates for such cases to the courts. Notwithstanding such possibilities, an enlightened SC bench could not have denied judicial redress for discriminatory practices against menstruating women. 

Adultery

         
Adultery generally refers to consensual sexual intercourse between a married person with another person who is not their spouse. It entails near universal disapprobation and is condemned on social, religious and moral grounds. In various countries it also attracts legal consequences.

What precisely constitutes adultery varies as does its consequences. In most of the Western countries (notable exception being the United States), adultery is no longer a criminal offence. It may have civil ramifications, while in other countries, especially those following the Sharia Law, adultery is considered a criminal offence and attracts harsh penalties like caning.

The criminalisation of adultery has drawn attention because in most instances it leads to discrimination and violence primarily against women. It is the woman who is invariably dubbed a sinner. In a major step forward in 2012, a UN Working Group on women’s rights counselled States to decriminalise adultery (United Nations 2012).

In India, the constitutional validity of Section 497 of the IPC that criminalised adultery has been challenged in many cases. The primary contention in such cases was that Section 497 unfairly discriminated between the genders as it exempted women from punishment (Yusuf Abdul Aziz v State of Bombay 1954) or discriminated against women by not allowing them to start the legal process (V Revathi v Union of India 1988). The SC, however, had in the past upheld the constitutional validity of Section 497 and treated it as a special provision made for the welfare of women under Article 15(3) of the Constitution (Yusuf Abdul Aziz v State of Bombay, 1954). The Court’s opinion at that time for not including women in prosecution of adultery was that it furthered “social good” (V Revathi vs Union of India 2012). 

In a remarkable metamorphosis, however, in the recent case of Joseph Shine v Union of India (2017), Section 497 has been held to be unconstitutional by a five-judge Constitution Bench of the SC. 

The petitioner in the Joseph Shine case also challenged the validity of Section 497 on the grounds that it violated Article 14 of the Constitution. The SC bench was, however, of the opinion that Section 497 saw women simply as victims having no agency or right to complain. This IPC provision considered a married woman as merely a commodity of her husband, did not “protect and preserve” the sanctity of marriage. It was instead aimed at protecting the “proprietary right of a husband.” The provision symbolised extreme form of derogation of a women’s bodily integrity as it sought to safeguard “sexual exclusivity of a married women for the benefit of her husband.” The SC bench hence opined that Section 497 degraded women and violated their constitutionally guaranteed dignity, privacy and sexual autonomy. Thus, the SC held that Section 497 was unconstitutional as it was violative of Articles 14, 15 and 21. As a logical corollary, it also held the procedural provision Section 198 of the Code of Criminal Procedure to be unconstitutional. 

Unlike in earlier cases, the SC Bench in this case also questioned whether adultery should be construed as a crime in the first place. Any criminal offence is generally defined as an act that is harmful to society at large and construed as a public wrong. However, in the case of adultery, the then CJI Misra opined that a couple may separate on the grounds of adultery but to consider it as a criminal offence is “inapposite.” In fact, the manner in which married couples deal with adultery is “absolutely a matter of privacy at its pinnacle.”

This judgment has triggered mixed responses, some have hailed it as historic, and others called it an “anti-women decision” (Indian Express 2018). There is also misinformation regarding the case as it is being understood to have given the license for adultery. However, that is not the case. The SC verdict has only decriminalised adultery. Hence, it could still constitute a valid ground for divorce. The SC has, in actual effect, struck down an antiquated provision that went against dignity of the women by stigmatising and encasing her in a subordinate position in the institution of marriage.  

Triple Talaq

In Islamic jurisprudence, the term talaq signifies the “release from the marriage tie” (Aqil 2010).  A Muslim husband can repudiate marriage by different modes of talaq. Triple talaq is one of the modes of divorce practised by an Indian Muslim husband, which has become a bone of contention. Triple talaq is already banned in many countries, including Islamic countries. Though, it is allowed in certain exceptional circumstances but it was not appreciated under the Islamic scriptures.[2] As per Islamic jurisprudence, before pronouncing talaq, it has been advised that the parties should first prefer reconciliation. Over the years, the legal status of women under the Islamic law itself has attracted controversial debates (WesahlAgherdien 2005).

It has been argued that “It is a popular fallacy that a Muslim male enjoys under the Quranic Law an unbridled authority to liquidate the marriage. The whole Quran expressly forbids a man to seek pretexts for divorcing his wife so long as she remains faithful and obedient to him. Indeed, a deeper study of the subject discloses a surprisingly rational, realistic and modern law of divorce.” (Yousuf Rawther v Sowramma 1971)

In pre-Islamic Arabia, men were having uncontrolled right to divorce for any reason or no reason (Tahir 1980). After the advent of Islam, the prophet declared talaq as a “worst of all permitted things (abghad-ul-mabahat).” However, the practice of "Talaq-ul-Sunnat (triple talaq) was prevalent at the time of the Prophet. It was regarded as a most approved form of talaq. Under Islamic jurisprudence, the origin of "talaq-e-biddat" (instant triple talaq) can be traced back to the time of Caliph Umar (1,400 years ago) largely followed by the Hanafi school though still regarded as a sinful act.

Initially, the Indian judiciary had recognised the instant triple talaq as one of the approved forms of divorce under the Muslim law. Later, the judicial trend differed from it, and in different cases, the Courts viewed “instant triple talaq is good in law though bad in theology.” [4] Thus, the constitutionality of the practice of instant triple talaq arose before a Constitutional Bench of the SC in Shayara Bano v Union of India (2016). It was contended as violative of fundamental rights guaranteed to the citizens of India. The SC faced the question: Can instant triple talaq be protected under religious rights (Article 25) guaranteed under the Constitution?

While deciding on this issue, the SC went through many references of Quran, Hadith and other secondary Islamic scriptures. Even references to many international instruments were factored in. It comprised the 1948 UDHR, the 1966 ICESCR and the 1979 CEDAW. As one of the respondents, the Union of India contended that triple talaq violates not only the fundamental rights but is also against constitutional morality.

The SC finally has declared “Instant Triple Talaq unconstitutional and also violative of Article 14 of the Indian Constitution.” Instant triple talaq is not an integral part of Islam and has no protection under Article 25 of the Constitution. The Court, therefore, struck down the Muslim Personal Law (Shariat) Application Act, 1937 insofar as it sought to recognise and enforce triple talaq. The Court held that every talaq must be reasonable and be preceded by attempts at reconciliation. 

The historic judgment of the SC in triple talaq not only underscores the rights of women under Articles 14, 15 and 21 of the Constitution but is also in conformity with the Holy Quran. As a sequel to the apex court’s judgment, the Muslim Women (Protection of Rights on Marriage) Bill, 2018 was introduced and passed in Lok Sabha on 28 December 2017. However, it is currently pending in the Rajya Sabha (Krishnadas 2018). The quantum of punishment in this bill is still not acceptable to many among the Muslim community. The question here arises: If a man pronouncing talaq is sent to three years of jail term then who will give maintenance to the family? (Krishnan 2018). After the completion of punishment, will the husband give the same love and respect to his wife? Will the family be able to overcome the social stigma that they will suffer because of the imprisonment of a family member?

However, it cannot be denied that the SC judgment helps in restraining the arbitrary power of the Muslim husband to pronounce divorce to his wife. He cannot escape maintenance by merely divorcing his wife and getting married to another woman (Punwani 2018). It helps in ensuring the rights of women that were curtailed by the patriarchal society in the name of sharia. The government has promulgated the Muslim Women (Protection of Rights on Marriage) Bill, 2018 on 19 September 2018.  It remains to be seen as to what shape this bill takes when it is tabled in the Parliament. 

Unnatural Offences

Section 377 of the IPC has remained an antiquated provision. This provision deals with unnatural offences like same-sex sexual relationship (carnal intercourse) and bestiality. The battle for decriminalising the colonial law with respect to the portion of same-sex sexual relationship has been fought for long. The initiative was taken by the AIDS Bhedbhaws v Virodhi Andolan 1994, when it filed a petition in Delhi High Court to decriminalise the section (Roy 2018). However, it did not catch much momentum. 

The initiative to decriminalise was again taken up by the Naz Foundation in 2001 to the Delhi High Court by challenging the constitutionality of Section 377. It was decriminalised by the verdict of the high court (Naz Foundation v Government of NCT, Delhi 2009). However, in 2013, the decision was overturned by the SC. It reinstated the criminality attached to Section 377 of the IPC (Suresh Kumar Koushal and another v Naz Foundation and others 2013). A relief came to the LGBTQ community in 2014 when the SC in NALSA v Union of India (2013) endowed transgender people with the identity of “third gender.”  A major turnout, however, came when the 2013 SC judgment was overturned by the Constitutional Bench in Navtej Singh Johar and Others s Union of India (2018) which decriminalised section 377. However, the “reading down” has still left non-consensual sex and bestiality within the purview of criminality under section 377.
The case has raised vital issues attached to the same-sex relationships comprising dignity, liberty, privacy, and equality as well as non-discrimination, freedom of expression of choice, health and right to shelter. The validity of the provision was also challenged on the grounds of constitutional morality by countering the ground of social morality used in the Kaushal case. The vital question of “Carnal intercourse against the order of nature” has been dealt with in detail. The Court opined that “procreation” is not the only purpose that justifies “order of nature.” The respondent on their part have cautioned and argued that since “sexual orientation” is not mentioned within the grounds of discrimination mentioned in Article 15 of the Constitution, any relief on the grounds of “sexual orientation” will lead to judicial legislation. The Court, however, rejected the contention and stated the “Constitution as an organic charter” and “transformative constitutionality” to be a guiding factor in interpreting “sex” to mean “sexual orientation” as a ground of discrimination.  

The SC accepted the contentions of the petitioner and upheld the principle of constitutional morality, setting aside the notion of social morality.  The judgment has sought to invoke several international law instruments such as the UDHR, ICCPR and the 2006 Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity.  The UDHR and ICCPR were cited to reinstate dignity and privacy of the LGBTQ whereas the Yogyakarta Principles is an exhaustive document dealing with different facets of rights related to LGBTQ community. With reference to the amount of atrocities and hate the community has witnessed since ages, Justice Malhotra has forcefully argued that “history owes an apology to the members of this community.”

As a corollary, the SC has paved the way for freedom and dignity to all. The verdict, however, has a long way to go. Social acceptability and perceptions attached to it still leave serious concerns. The verdict is silent on the issue of LGBTQ marriages. It has only sought to prohibit any meddling into the personal lives of the LGBTQ community. There could be many more issues that need to wait for the future legal developments.

Questions For the Future

Will these judicial pronouncements break the proverbial glass ceiling for women? Will they bring about much-awaited changes in the societal attitudes? Even as there is resistance to change in social mores, customs and religious practices, the judicial inroads have sought to superimpose constitutional values and morality upon prevailing societal morality. Some purists may frown upon such progressive/activist/futuristic judicial view. However, it is appreciable that the apex court went about the task of propounding inalienable rights of women (and LGBTQ community) without waiting for legislative reforms. As often seen in the past, the higher judiciary has not hesitated when issues of “social justice” are thrown into its arena. Will these judgements make a dent on the societal attitudes, treatment of women as “chattel” in most marriage structures and above all providing an equal status in all spheres of national life? These remarkable judicial inroads call for a decisive action and follow-up, especially on the part of Union Ministry of Women and Child Development to push for timely and concrete legal changes. Since the core issue of women’s right to bodily integrity critically depends upon the change in societal attitudes, there is a long way to go before we will see full realisation of women’s equality and exercise of their rights as human beings.