9-Judge Bench Supreme Court to Revisit Female Genital Mutilation Case After 7-Year Delay

The case concerning female genital mutilation, first raised in Sunita Tiwari v Union of India, is set to be heard by a nine-judge Constitution Bench of the Supreme Court after remaining pending for over seven years.

The petition challenges the practice of female genital mutilation, also known as khatna or khafz, within the Dawoodi Bohra community. It seeks a declaration that the practice is unconstitutional and calls for specific legislation and strict enforcement under existing criminal laws.

The matter has been linked with other constitutional cases involving religious freedom, including issues related to women’s entry into places of worship. These cases collectively raise questions about the interpretation of Articles 25 and 26 of the Constitution.

Activists argue that the issue is not merely about religion but concerns bodily autonomy and gender justice. Advocate Maya Nirula stated, “FGM is not a religious practice but a sociocultural one, and no claim of religious freedom can justify a violation of a girl’s bodily integrity and fundamental rights.”

The case gained prominence when it was first examined by the Supreme Court in 2018. At that time, a three-judge Bench observed that female genital mutilation appeared to violate privacy and bodily integrity, and lacked any medical or scientific basis, while causing severe physical and psychological harm.

Despite these observations, India still does not have a specific law banning female genital mutilation. Existing laws such as the Indian Penal Code and the POCSO Act may be used, but the absence of a dedicated legal framework has made enforcement difficult.

The Union government earlier stated that there is no official data confirming the prevalence of female genital mutilation in India. However, independent studies have indicated otherwise, highlighting the absence of formal mechanisms to collect such data.

Survivor groups have also played an important role in the litigation. Masooma Ranalvi, founder of WeSpeakOut, emphasised the importance of participation, stating, “As survivors and as an organisation working on this issue every day, it was important that our voices were heard.”

Opposition to the petition has come from groups within the Dawoodi Bohra community, who argue that the practice forms part of their religious freedom. They maintain that khafz is an essential religious practice and cannot be equated with female genital mutilation as understood globally.

This conflict has led the Court to refer the matter to a larger Bench. The key issue before the Court is whether female genital mutilation qualifies as an essential religious practice and, if so, whether it can still be restricted in light of fundamental rights.

The Bench will also examine broader constitutional questions, including the extent of judicial review over religious practices and the balance between religious freedom and rights such as dignity, equality, and bodily autonomy.

Internationally, female genital mutilation is recognised as a violation of human rights. Legal experts argue that India has obligations under global conventions to take steps to eliminate such practices.

The upcoming hearing is expected to address whether practices claimed as religious can override fundamental rights. As Maya Nirula observed, “Even where a practice is claimed to be religious, it cannot override fundamental rights, particularly the right to life, which must take precedence.”