The Supreme Court Monday referred a petition seeking a ban on female genital mutilation of minor girls, allegedly prevalent among the Dawoodi Bohras, to a five-judge Constitution Bench.
A bench of Chief Justice of India Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud said this deserved to be answered by a Constitution Bench. The court was hearing a PIL filed by Delhi-based lawyer Sunita Tiwari, seeking a declaration that the practice amounts to violation of a woman’s right to life and dignity.
The petitioner contended that the procedure is performed “illegally upon girls (between five years and before she attains puberty)” and is against the “UN Convention on the Rights of the Child, UN Universal Declaration of Human Rights of which is India is a signatory”. This also resulted in “permanent disfiguration to the body of a girl child”, the petitioner stated.
During the hearing, the bench had earlier observed that “control over one’s genitalia is vital to privacy, autonomy, dignity”. Noting that the practice violates the “bodily integrity” of a girl child, it had asked how bodily integrity of an individual could be part of religion and an essential practice.
The Centre, represented by Attorney General K K Venugopal, was of the view that it went against various fundamental rights of the girl child and moreover, such kind of genital mutilation had serious repercussions on their health. Venugopal too favoured a ban and pointed out that it had already been prohibited in the US, UK, Australia and several African countries.
Appearing for a group defending the practice, senior counsel Abhishek Manu Singhvi referred to the practice of male circumcision (khatna) in Islam and said it had been allowed in all countries and is an accepted religious practice. He requested the court to refer it to a Constitution Bench as there were questions of essential religious practice involved.
Petitioner Tiwari contended that the practice had no basis in any religious texts and was being carried out without any medical reason. She also stressed on the long-term consequences that it leaves on a girl child.
The petition demanded implementation of the 2012 United Nations resolution on elimination of FGM and referred to World Health Organisation records which classify FGM as a violation of human rights.
“…the practice of Khatna is illegal and against the religious norms/customs and amounts to serious violation of child rights as well as the rights of a woman to live with freedom and dignity and also a violation of human rights, and hence, amounts to cruelty of the first order, which is a heinous crime,” the petition stated.