For e.g., suppose a law were passed to ban female circumcision under 25(2)(b) providing for social reform. Under that constricted reading, it'd automatically exempt Dawoodi Bohras who are a religious denomination under art. 26 even if primarily intended for the community. 2/2
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"Health" is an exception for 25(1). See if a law passed under 25(2) eats away party of Article 26 that's absolutely fine for me. But to say that even in the absence of law, right to worship in 25(1) and by making 25(2) a substantive provision destroying 26 is my problem
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I agree there - the need for a law is absolutely correct. My issue is, on a purely textual reading, scope of protection for that law would not extend to art. 26 it appears. TLV overcame that by relying on the phrase "all classes & sections" but that'd only apply to Hindus.
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Here, you are right that SC will probably cite some health studies to justify it. (Though, I have doubts about their value. There are lot of assumptions made in these like poor sterility, general surgical complications, etc. which could apply to any sort of procedure).
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A big complication with this procedure is keloid scar formation which could happen equally with, say, ear piercings. So, I am not altogether convinced about this line of argument though I am sure it will be cited & media will run with it.
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For FGM, hurt etc are already crimes under IPC.
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It is done with parental consent just as male circumcision & ear/nose piercings. So, is that an issue?
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And my reading of 26 is completely different. It is not at all group right. It is like a corporate right to acquire and maintain property. Hence passed without much debate in CA.
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That would be true of parts a, c & d. But art. 26(b) is broader: "to manage its own affairs in matters of religion" that would seem to cover anything of this sort, wouldn't it?
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In my view what is a religious affair must be decided at 25. And 26 is more of right to form association and manage its stuff. Then you won't get into messy judicial discretion of who is denomination and who is not. I will read CA again on this.
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