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Case Description

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

Background

The practice female genital mutilation (FGM) or female circumcision, more commonly known as ‘khatna’ involves the removal of either part or all of female genitalia with the aim of 'regulating female sexuality and moderating sexual desires'. It is widely practiced among 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;0
  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 has classified FGM as a gross violation of human rights of girls and women, as the practice reflects a deep-rooted inequality and constitutes discrimination against women. FGM has been explicitly banned in the United States of America, the United Kingdom, Australia, and several countries in Africa, as it violates the Universal Declaration of Human Rights. In December 2012, the United Nations General Assembly adopted a unanimous resolution on the elimination of FGM.

In India, however, there is no specific law banning the practice of female genital mutilation, despite the WHO recognising that the procedure may lead to infections, cysts, infections, infertility, and result in physical impairments. In 2012, a documentary filed titled A Pinch of Skin” was released recorded the experience of 20 women of the Dawoodi Bohra community who had been subjected to FGM. Consequent to this there have been increased instances of Bohra women protesting the practice.

Sunita Tiwari, an advocate working on child rights and human rights, filed a public interest litigation petition asking the Court to direct the State to explicitly ban the practice of female genital mutilation. She has also asked that it be declared a non-bailable, cognizable and non-compoundable offence under the Indian Penal Code.

On 8th May 2017, a Bench comprising of then Chief Justice J.S. Khehar, and Justices S K 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.

Issues

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

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?

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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