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After more than seven years of uncertainty, the Supreme Court is set to hear a crucial Public Interest Litigation (PIL) challenging the practice of female genital mutilation (FGM) in India, with a nine-judge Constitution Bench scheduled to begin proceedings from Tuesday, April 7.
The case, originally filed in 2017 by lawyer Sunita Tiwari, marks one of the most significant legal challenges to the practice, locally referred to as khatna or khafz, within the Dawoodi Bohra community. The petition seeks to declare FGM unconstitutional, direct the government to enact specific anti-FGM legislation, and ensure prosecution under existing criminal laws.
The matter is not being heard in isolation. It has been clubbed with a batch of cases dealing with broader constitutional questions on religious freedom, including the entry of women into the Sabarimala Temple, the rights of Muslim women to enter mosques, and the rights of Parsi women married outside the community to access fire temples. These cases collectively raise fundamental questions about the scope of Articles 25 and 26 of the Constitution and the extent to which courts can intervene in religious practices.
Activists, however, argue that the issue goes beyond religious freedom, framing it instead as one of bodily autonomy and a form of gender-based violence amounting to torture.
“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,” advocate Maya Nirula said.
At the time the PIL on FGM was filed, India’s anti-FGM movement was still in its early stages, with only a handful of survivors speaking publicly about their experiences. The litigation, though unexpected, quickly became a rallying point for activists and survivors.
Recognising the significance of the case, Masooma Ranalvi, a survivor-activist and founder of WeSpeakOut, an organisation that has been campaigning to end FGM, filed an intervention petition to bring survivor voices before the court.
Speaking to TNM, Masooma said, “When the PIL was filed, we were still at a very nascent stage as an organisation, trying to find our footing and build community support. We didn’t have the resources to approach the courts ourselves. But once the Supreme Court admitted the petition, we felt we could not remain bystanders.
As survivors and as an organisation working on this issue every day, it was important that our voices were heard. In a sense, we didn’t really have a choice, we had to be present and represent those most affected by the practice.”
A landmark moment in Indian jurisprudence
The case marked the first time the issue of FGM was formally examined by India’s apex court. During hearings in 2018, a three-judge bench led by then Chief Justice Dipak Mishra, along with Justices DY Chandrachud and AM Khanwilkar, made strong oral observations.
The bench noted that FGM appeared to violate a child’s right to privacy and bodily integrity, and observed that the practice lacked any scientific or medical justification while causing significant trauma, pain, and bleeding.
Despite these observations, India still lacks a specific law banning FGM. While provisions under the Indian Penal Code and the Protection of Children from Sexual Offences (POCSO) Act, 2013, may be invoked, the absence of a clear legal framework has complicated enforcement and data collection.
Data gaps and contested narratives
In a controversial submission, the Union government told the SC that there was no official data confirming the existence of FGM in India. Activists and legal experts criticised this stance, pointing out that without a specific legal category, agencies like the National Crime Records Bureau cannot collect such data.
However, independent studies tell a different story. A 2017 report by WeSpeakOut found that nearly 75% of girls in the sampled Dawoodi Bohra community had undergone FGM, with 97% recalling the experience as painful. Many respondents reported long-term psychological effects including anxiety, depression, and loss of trust.
Religious freedom vs fundamental rights
Opposition to the PIL has been equally organised. The Dawoodi Bohra Women’s Association for Religious Freedom emerged as a key intervenor, framing the petition as an infringement on religious freedom.
The group argued that khafz is an essential religious practice and cannot be equated with FGM as understood globally. They also questioned the credibility of the original petitioner, citing her position outside the community, and linked the challenge to broader concerns of religious discrimination.
These arguments ultimately led to the case being referred to a nine-judge Constitution Bench to examine whether banning FGM would violate Articles 25 and 26 of the Constitution, which guarantee religious freedom. The matter was tagged with other cases concerning entry of women into places of worship, further delaying proceedings.
An advocate who is familiar with the details of the case, speaking on condition of anonymity, said the framing of FGM as a matter of religious freedom has shaped both the legal strategy and the movement’s messaging. “Our core argument is that FGM is not an ‘essential religious practice’. Once that is established, constitutional protection under religious freedom cannot be claimed,” the advocate said.
They clarified that the petitioners are not seeking to separate the issue entirely from the broader batch of religious freedom cases, but want to ensure that FGM is not treated as a protected religious practice within that framework. “If it is not essential to the religion, then it should not be considered under that protection at all,” the advocate added.
Global human rights lens
Internationally, FGM is widely recognised as a violation of human rights and, increasingly, as a form of torture. Legal scholar Maya Nirula has argued that the practice meets the threshold of “cruel, inhuman or degrading treatment,” prohibited under international law.
Global conventions – including CEDAW, the Convention on the Rights of the Child, and the UN Convention Against Torture – place an obligation on countries like India to eliminate such practices. The United Nations Human Rights Council, during its 2022 Universal Periodic Review, urged India to enact specific legislation banning FGM and adopt a national action plan.
“Female genital mutilation is a grave form of violence that amounts to torture, violating the rights to physical integrity, dignity, and freedom from cruel, inhuman or degrading treatment,” Maya said.
She also added that India’s failure to prohibit FGM places it in violation of its domestic, international, and universal legal obligations to protect women and children.
Masooma stressed that FGM is not confined to a single religion or community. The practice has been documented across different cultures and faiths globally, including among Christian and tribal communities in parts of Africa, underscoring its sociocultural, rather than strictly religious, roots. “Several countries, including Muslim-majority nations such as Egypt and Indonesia, have introduced legal measures or regulations restricting FGM, challenging claims that the practice is integral to Islam,” she said.
The nine-judge Constitution Bench, which is also set to hear the Sabarimala review petitions from April 7, will take up a series of wide-ranging constitutional questions that extend beyond any single case. The bench headed by Chief Justice of India Surya Kant, also comprises Justice BV Nagarathna, Justice MM Sundresh, Justice Ahsanuddin Amanullah, Justice Aravind Kumar, Justice Augustine George Masih, Justice Prasanna B Varale, Justice R Mahadevan and Justice Joymalya Bagchi.
Central to its deliberations is the “essential religious practices” (ERP) doctrine, which determines what constitutes a protected religious practice under Articles 25 and 26 of the Constitution.
The bench will examine multiple issues of gender and religious rights across communities, including the entry of Muslim women into mosques and dargahs, the rights of Parsi women married outside the community to access fire temples, and the legality of FGM among Dawoodi Bohras.
More broadly, the court is expected to address the interplay between personal laws and constitutional morality, and clarify the extent to which courts can review practices claimed to be “essential” to religion. The proceedings are also likely to explore how the right to religious freedom can be balanced against fundamental rights such as equality, dignity, and bodily autonomy – particularly in cases affecting women.
Another key question before the bench is whether individuals who are not members of a particular religious denomination have the legal standing to challenge its practices, and how the term “morality” under the Constitution should be interpreted – especially whether it must align with constitutional values rather than community norms.
“Even where a practice is claimed to be religious, it cannot override fundamental rights, particularly the right to life, which must take precedence,” Maya said.
As the Constitution Bench prepares to hear the matter, the case is expected to address fundamental questions: can cultural or religious practices justify bodily harm? And where should the line be drawn between religious freedom and constitutional rights?