The case named Sunita Tiwari v. Union of India (Ban on Female Genital Mutilation) is a very famous case about Ban on female genital mutilation. The case is important from every point of view. Supreme Court delivered the judgment in this case. Let us see it in detail with some important points and some important issues, with the judgment.
Judges
Ajay Manikrao Khanwilkar, D.Y. Chandrachud and Dipak Misra
Brief Description:- 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.
Facts of the case in which the Supreme Court delivered the judgment on the Ban on Female Genital Mutilation
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 xxxuality and moderate xxxual desires’.
Arguments in favor of a ban on female genital mutilation
•Sunita Tiwari, a human rights advocate, filed public interest litigation calling for a ban on 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 Organization’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 that called for the elimination of FGM.
• Mr. Divan stated that FGM is a violative is penetrative xxxual assault via Section 3 (b) of the Protection of Children from xxxual Offenses Act (POSCO). Under Section 3 (b), any act where an object is inserted into the vagina of a child is penetrative xxxual assault. CJI Misra added that Section 3 ( b ) is gender-neutral.
•Mr. Divan argued that the many Dawoodi Bohra community outside of India consider female circumcision an illegal practice. He cited Dawoodi Bohras located in the United States of America, Australia, and Kenya. He urged the Court to criminalize FGM in India, in order to encourage religious leaders to discard the practice.
• Mr. Divan discussed various international treaties which prohibit FGM. He discussed the Child Rights Convention, which inspired POSCO, and the FGM abolition UN Resolution.
•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.
• The majority of Dawoodi Bohras are opposed to a ban. They argue that circumcision is a religious practice and hence is protected under Articles 25 and 26 of the Constitution.
• 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 24 September 2018, the Division Bench referred the case to a Constitution Bench. The Division Bench held that the case necessitates an assessment of whether female circumcision is an essential religious practice.
Issues (Ban on female genital mutilation)
1. Does the practice violate the right to life and bodily autonomy of women and girls, and infringe on Article 21 of the Constitution?
2. Does the practice of female circumcision violate the right to privacy of the girls on whom the procedure is performed without their consent?
3. Does the practice discriminate against women and girls, and does it violate Articles 14 and 15 of the performed without their consent?
4. Is the practice protected as a religious practice under Articles 25 and 26 of the Constitution?
Updates
24 September 2018
• The Court referred the matter to a Constitution Bench ( CB ) upon the request of Mr. Mukul Rohatgi, counsel for Dawoodi Bohras, and Attorney General KK Venugopal.
• In the previous hearing. Mr. AM Singhvi argued for the formation of a CB. He stated that questions pertaining to essential religious practices must be heard by CBS, citing Sardar Syeda.
• Today, Mr. KK Venugopal and Mr. Rohatgi requested the Court to refer the matter to a CB. Mr. Rohatgi submitted that questions pertaining to the legality of female circumcision practices are of great significance to the Dawoodi Bohras. He urged a five-judge CB to hear the matter.
•A counsel for intervenors seeking a ban objected to the request. They argued that not every matter pertaining to ERPs needs to be referred to a CB. The council emphasized that the current three-judge Bench has already heard the matter at length. In the previous hearing Ms. Indira Jaising also opposed referring the case to a CB. She asked the Bench to wait for the upcoming judgment in the Sabarimala Temple Entry case. She stated that the Sabarimala judgment would set a precedent on the relevant issues.
• The Supreme Court recommended that the matter of female genital mutilation (FGM) practiced in the Dawoodi Bora community be referred to a seven-judge bench and heard alongside other matters pertaining to women’s right to pray, stating that it was a ” seminal issue ” regarding ” the powers of constitutional courts to tread on the question as to whether a particular practice is essential to religion or is an integral of the religion”.
• A five-judge bench led by CJI Ranjan Gogoi made this observation in the 3: 2 majority judgment delivered over the review petitions filed against the apex court’s 2018 Sabarimala verdict.
•” For one, the reference to a larger bench is predicated on this being a religious issue, which FGM is clearly not; it is a cultural issue. It is an issue of rights, gender-based violence, and an act of crime. However, we welcome the reference to a larger bench and hope that now the issue will be heard by a 7 – judge bench on the issue of constitutional morality, ” said Masooma Ranalvi, who has spearheaded a campaign against the practice, also referred to as khatna.
