Female circumcision, or "khatna," is the practice of removing all or a portion of a woman's genitalia. It is mainly practiced by the Dawoodi Bohra community, a Shia Muslim sect in India. "Regulate female sexuality and moderate sexual desires" is the practice's stated goal.
Arguments were completed by Mr. AM Singhvi, who was speaking on behalf of Dawoodi Bohra members who were against a ban. He asserted that prohibiting the practice would violate the Dawoodi Bohras' right to privacy as well as their freedom of religion.
A seven-judge bench was asked to hear the case by Mr. AM Singhvi. He maintained that a Constitution Bench should examine cases about a religious group's right to administer its religious practices independently of the government. In Sardar Syenda, he referenced the seven-judge Bench.
Mr. Singhvi's request for a larger Bench was resisted by Ms. Indira Jaising, who was representing the intervener in favor of a ban. According to her, the case's issues are similar to those of the five-judge Benches that have heard the Sabarimala Temple Entry case and the Parsi Women Excommunication case. She argued that the precedent for the Bench's approach to the problems posed in this case would be established by the future ruling in the Sabarimala case, which is anticipated to be announced this month. Therefore, she continued, there is no need to establish a larger Bench.
The issue at hand in this case is whether female circumcision infringes on the fundamental rights to equality and individual freedom. The Dawoodi Bohra group contends that Article 26 of the Constitution protects the practice since it is an integral part of their religion. Mr. AM Singhvi made the case for the creation of a CB during the prior session. Citing Sardar Syenda, he said that CBs must listen to inquiries on fundamental religious practices.
Mr. Rohatgi and Mr. KK Venugopal asked the court today to send the case to a CB. According to Mr. Rohatgi, the Dawoodi Bohras place a high value on issues relating to the legitimacy of female circumcision practices. He wanted the matter to be heard by a five-judge CB.
An intervenor's lawyer objected to the proposal for a prohibition. They contended that not all ERP-related issues require referral to a CB. The attorney emphasized that the subject has already been thoroughly heard by the current three-judge Bench. It should be noted that Ms. Indira Jaising opposed sending the case to a CB at the prior hearing. She requested that the Bench hold off until the Sabarimala Temple Entry case's next ruling. According to her, the Sabarimala ruling will establish a standard on the pertinent matters.
The case was referred to a Constitution Bench by the Court.
Arguments in Favor of a Ban
Human rights activist Sunita Tiwari filed a public interest lawsuit demanding that the practice be outlawed. She contends that the practice and female genital mutilation (FGM) are closely related. She contends that the practice violates Dawoodi Bohra women's rights to equality, privacy, and personal liberty and is discriminatory against them.
Ms. Tiwari highlights the World Health Organization's (WHO) FGM report. FGM is a flagrant violation of women's and girls' human rights, according to the WHO. It transgresses the basic protections outlined in the Universal Declaration of Human Rights. Furthermore, because it can result in infections, difficulties giving birth, and other significant physical impairments, FGM is a serious health risk. A unanimous resolution calling for the abolition of FGM was adopted by the UN General Assembly in December 2012.
FGM is prohibited in several nations, including the United States, the United Kingdom, Australia, and several African nations. However, there is no explicit law in India that forbids FGM.
Arguments Against a Ban
A prohibition is rejected by the majority of Dawoodi Bohras. According to them, circumcision is protected by Articles 25 and 26 of the Constitution because it is a religious practice.
They contest the allegation that their actions constitute gender discrimination. Circumcision is mandatory for both men and women in the community. Mr. A.M. Singhvi, a lawyer who represents community members, cautions against referring to the practice as "female genital mutilation." He asserts that Dawoodi Bohras perform female circumcision in a non-mutilating and safe manner. Mr. Singhvi challenges the WHO report's applicability because it deals with FGM rather than circumcision. The Division Bench referred the case to a Constitution Bench on September 24, 2018. The Division Bench ruled that determining whether female circumcision is a necessary religious practice is necessary in this case.
Ms. Sunita Tiwari, the petitioner, is an advocate. She has also been an advocate for human rights and the rights of children. The petition argues that because the practice discriminates against women, it fosters inequity. Furthermore, it is a serious violation of children's rights because all of the victims are minors.
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.
Reasons Behind the Petition
FGM Infringes on the Right to Life
The petitioner emphasizes that the right to life with dignity is a part of the right to life guaranteed by Article 21 of the Indian Constitution of 1950. Furthermore, the Union of India is obligated to safeguard its nationals under Article 39. Since the state has not passed legislation addressing or outlawing FGM or Khatna, it has not fulfilled its obligation to provide protection.
According to Ms. Tiwari, the respondents' inaction suggests that they favor FGM. Even though the Indian Penal Code, 1860, considers it an offense, the practice is nonetheless permitted.
The petitioner cites a documentary on the practice of FGM called "A Pinch of Skin" as well as a number of online petitions. There have been numerous reports of Bohra women, but their following calls for change have been unsuccessful. The petitioner argues that the respondents' flagrant disrespect for the protection of women's and children's fundamental bodily rights is evident.
Does Not Meet International Law Obligations
India adopted the 1948 Universal Declaration of Human Rights, which outlines each person's fundamental rights. Children's rights are outlined in the 1989 United Nations Convention on the Rights of the Child. All nations that have ratified the convention are required to abide by international law and act in the best interests of children. According to a straightforward interpretation of the rights outlined in these international agreements, FGM is a violation that calls for government action.
To safeguard children's fundamental rights, the UN General Assembly passed a resolution in 2012 outlawing female genital mutilation worldwide. The petitioners argue that India has no legislation that forbids FGM or Khatna, despite its duties under international law.