Writ Petition SummaryBan on Female Genital Mutilation
Background and Issues
A community amongst the Shia Muslims called Dawoodi Bohras practice female circumcision or Female Genital Mutilation (FGM). This is also known as ‘Khatna’. It is performed on girls above the age of five, before they attain puberty. The public interest petition is filed in light of the increased reporting of FGM.
The petitioner, Ms. Sunita Tiwari, is an advocate. She has also been fighting for child rights and human rights. The petition contends that the practice perpetuates inequality since it is discriminating against women. Further, since the victims are all minors, it is a grave violation of the rights of children.
What does the petitioner seek?
The petitioner prayed for the Court to
Place a complete ban on Female Genital Mutilation or Khatna in India
Direct the state police to take action under the existing provisions in the Indian Penal Code, 1860 until new statutes come into force.
Grounds for the petition
FGM Violates Right to Life
The petitioner highlights that the right to life under Article 21 of the Constitution of India, 1950 includes the right to life with dignity. Further, under Article 39 the Union of India has a duty to protect its citizens. The State has failed its duty to protect as it has not enacted laws pertaining to, and abolishing Khatna or FGM.
Ms. Tiwari contends that the non-action on the part of the respondents imply a support of FGM. That despite it being considered an offence under the Indian Penal Code,1860, there is no ban on the practice.
The petitioner refers to various online petitions and a documentary titled “A Pinch of Skin” made on the practice of FGM. Several accounts of women from the Bohra community and subsequent petitions made by them to effectuate change have been in vain. The petitioner contends that this is a blatant disregard to the protection of the basic bodily rights of women and children by the respondents.
Does Not Meet International Law Obligations
The Universal Declaration of Human Rights, 1948, (to which India ratified in 1948), sets out the fundamental rights of every individual. The UN Convention on the Rights of the Child which was signed in 1989 sets out the rights of children. It requires that all countries that have ratified the convention are bound by international law and must act keeping the best interests of children in mind. A plain reading of rights under these international conventions indicates that FGM is a violative practice requiring state intervention.
The United Nations General Assembly adopted a resolution in 2012 banning Female Genital Mutilation internationally, in order to protect the fundamental rights of a child. The petitioners contend that despite international law obligations, there is no law in India that bans FGM or Khatna.