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.
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 does not have a specific law banning FGM.
Arguments against a ban
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 24th September, 2018, the Division Bench referred the case to a Constitution Bench. The Division Bench held that the case necessitates an assement of whether female circumcision is an essential religious practice.
1. Whether the practice of female circumcision violates the right to privacy of the girls on whom the procedure is performed without their consent?
2. Whether the practice violates the right to life and bodily autonomy of women and girls, and infringes on Article 21 of the Constitution?
3. Whether the practice is discriminatory against women and girls, and whether it violates Articles 14 and 15 of the Constitution?
4. Whether the practice is protected as a religious practice under Articles 25 and 26 of the Constitution?