Case Description

The case will decide whether the practice of female genital mutilation or "khatna" should be completely banned.

Background

The practice of female genital mutilation (FGM) or female circumcision, more commonly known as ‘khatna’ involves the removal of either part or all of female genitalia. FGM aims to 'regulate female sexuality and moderate sexual desires'. In India it is widely practiced in the Dawoodi Bohra community, a sect of Shia Muslims.

 

The World Health Organisation (WHO) has identified four types of FGM:

  1. Removal of the clitoral hood, the skin around the clitoris with partial or complete removal of the clitoris;
  2. Removal of the labia minor with partial or complete removal  of the clitoris and the labia majora;
  3. Removal of all or part of the labia minor and the labia major and the sticking of a seal across the vagina, leaving a small opening for the passage of urine and menstrual blood (infibulation) and;
  4. Other miscellaneous modes, including cauterisation of the clitoris, cutting of the vagina, and introducing corrosive substances into the vagina.

The WHO states that FGM may lead to infections, cysts, infections, infertility, and result in physical impairments.

 

FGM reflects a deep-rooted inequality and discrimination against women. The WHO has classified FGM as a gross violation of human rights of girls and women. It violates the fundamental guarantees provided by the Universal Declaration of Human Rights. In December 2012, the United Nations General Assembly adopted a unanimous resolution which called for elimination of FGM. Several countries including United States of America, the United Kingdom, Australia, and several countries in Africa have banned FGM.

 

India does not have a specific law banning the practice of FGM. A documentary filed titled A Pinch of Skin”released in 2012, recorded the experience of 20 women from the Dawoodi Bohra community who were subjected to FGM. This garnered public attention and saw increased protest from Bohra women.

 

Sunita Tiwari, an advocate working on child rights and human rights, has filed a public interest litigation petition. She sought the Court to: direct the State to explicitly ban FGM; declare FGM as a non-bailable, cognizable and non-compoundable offence under the Indian Penal Code, 1860.

 

On 8th May 2017, a Bench comprising of the then Chief Justice Jagdish Singh Khehar, and Justices Sanjay Kishan Kaul and D Y Chandrachud asked the Centre and the States of Maharashtra, Gujarat, Rajasthan and Delhi to submit a detailed reply on the issue.

 

The bench is reconstituted and will have the current Chief Justice Dipak Misra, Justices Ajay Manikrao Khanwilkar and D Y Chandrachud.

Issues

1. Whether the practice of female genital mutilation violates the right to life and bodily autonomy of women and girls of the Dawoodi Bohra community and infringes Article 21 of the Constitution?

2. Whether the practice of female genital mutilation is discriminatory against women and girls and does it violate Article 14 of the Constitution?

3. Whether the practice of female genital mutilation violates the right to privacy of the girls on whom the procedure is performed without their consent?

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