Ban on Female Genital Mutilation

Sunita Tiwari v Union of India

The Court will decide whether or not to ban the practice of female circumcision, or "khatna". In particular, the Court will evaluate circumcision as it is practiced in the Dawoodi Bohra community.

Pending

Parties

Petitioner: Sunita Tiwari

Lawyers: Rajesh Khanna

Respondent: Union of India; Ministry of Health and Family Welfare; Ministry of Social Justice & Empowerment; Ministry of Woman and Child Development; State of Maharashtra; State of Gujarat; State of Rajasthan; Govt. of National Capital Territory of Delhi; State of Kerala; State of Telangana

Lawyers: K.K. Venugopal

Intervenor: Dilshad Tavawalla; Shaheeda Kirtane; Masooma Ranalvi

Lawyers: Abhishek Manu Singhvi; Indira Jaising; Shyam Divan

Case Details

Case Number: WP (C) 286/2017

Next Hearing:

Last Updated: September 24, 2018

Key Issues

1

Does the practice of female circumcision violate the right to privacy of the girls on whom the procedure is performed without their consent?

2

Does the practice violate the right to life and bodily autonomy of women and girls, and infringe on Article 21 of the Constitution?

3

Does the practice discriminate against women and girls, and does it violate Articles 14 and 15 of the Constitution?

4

Is the practice protected as a religious practice under Articles 25 and 26 of the Constitution?

Case Description

This case has been tagged to be heard with the Sabarimala review petitions.

The practice of female circumcision, or ‘khatna’, involves the removal of either part or all of a woman’s genitalia. In India it is widely practiced in the Dawoodi Bohra community, a sect of Shia Muslims. The practice aims to ‘regulate female sexuality and moderate sexual desires’.

 

Arguments in favor of a ban

Sunita Tiwari, a human rights advocate, filed a public interest litigation calling for a ban of the practice. She argues that the practice is closely tied to female genital mutilation (FGM). She argues that the practice is discriminatory against women, violating Dawoodi Bohra women’s right to equality, right to privacy, and right to personal liberty.

Ms. Tiwari draws attention to the World Health Organisation’s (WHO) report on FGM. The WHO has classified FGM as a gross violation of the human rights of girls and women. It violates the fundamental guarantees provided by the Universal Declaration of Human Rights. Furthermore, FGM is a serious health concern as it can cause infections, problems relating to childbirth, and other severe physical impairments. In December 2012, the United Nations General Assembly adopted a unanimous resolution which called for the elimination of FGM.

Several countries including the United States of America, the United Kingdom, Australia, and several African countries have banned FGM. India however, does not have a specific law banning FGM.

 

Arguments against a ban

The majority of Dawoodi Bohras are opposed to a ban. They argue that circumcision is a religious practice and hence is protected under Articles 25 and 26 of the Constitution.

They disagree with the claim that their practice is discriminatory against women. Both women and men in the community are required to be circumcised.

Mr. A.M. Singhvi, a lawyer representing members of the community, argues against using ‘female genital mutilation’ to describe the community’s practice. He claims that female circumcision is practiced in a safe and non-mutilating manner by Dawoodi Bohras. Mr. Singhvi questions the relevance of the WHO’s report, given that it pertains to FGM, not circumcision.

On September 24th, 2018, the Division Bench referred the case to a Constitution Bench. The Division Bench held that the case necessitates an assessment of whether female circumcision is an essential religious practice.