Female Genital Mutilation as a Constitutional Question: FGM, Dawoodi Bohras, and the Limits of Article 25

Introduction

At the crossroads of bodily autonomy, religious freedom, and constitutional morality lies one of the most legally complex and socially charged questions in contemporary Indian jurisprudence: whether the practice of khatna, or female circumcision, as performed on minor girls within the Dawoodi Bohra community, can survive constitutional scrutiny under Articles 14, 15, and 21 of the Constitution of India, or whether it finds shelter under the religious freedom guarantees of Article 25. The World Health Organization defines female genital mutilation as encompassing “all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.” [1] That definition, which is internationally accepted, sits at the very heart of the ongoing petition before the Supreme Court of India — a petition that has forced the judiciary to confront not only the limits of religious freedom but also the State’s constitutional duty to protect the dignity and bodily integrity of its most vulnerable citizens.

The Dawoodi Bohra community is a sub-sect of Shia Islam, concentrated largely in Maharashtra, Gujarat, Rajasthan, Kerala, and Telangana. Within this community, khatna — also referred to as khafz or khafd — is performed on girls typically between the ages of six and seven, and involves the partial or complete removal of the clitoral hood. The stated rationale is to achieve taharat, or ritual purity, by excising what community tradition describes as an “immoral lump of flesh” thought to obstruct spiritual cleanliness. The practice is not mentioned in the Quran and is not endorsed by the mainstream Islamic scholarly consensus. Its doctrinal basis within the Bohra community rests primarily on Daim al-Islam, a religious text specific to the Fatimid school of Islam followed by the Bohras. [2] This distinction is critical because it directly bears upon whether khatna qualifies as an “essential religious practice” entitled to constitutional protection.

The Constitutional Framework: Articles 25 and 26

Article 25(1) of the Constitution of India declares that “all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.” However, this right is explicitly conditioned by internal qualifications. The article itself provides that the right is “subject to public order, morality and health and to the other provisions of this Part.” Article 25(2)(b) goes further, expressly permitting the State to make law “providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.” While this specific sub-clause addresses Hindu institutions, the broader principle — that the constitutional guarantee of religious freedom is not absolute — pervades the entire framework of Part III. Article 26, which protects the rights of religious denominations to manage their own religious affairs, is similarly subject to the same qualifications of public order, morality, and health.

The question of what constitutes a practice deserving protection under Article 25 has historically been answered through the doctrine of essential religious practices, first formulated by a seven-judge bench in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954 AIR 282). [9] The Court held that the term “religion” is not limited to doctrines or beliefs alone, but extends to rituals and observances. Crucially, it established that “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” This observation seeded the essential religious practices test: only those practices fundamental to a religion, to the extent that their removal would fundamentally alter its character, deserve constitutional protection. Optional or peripheral practices do not qualify. In State of West Bengal v. Ashutosh Lahiri, the Supreme Court held that the slaughter of a cow for religious purposes does not form an essential element of the Muslim religion, and that an optional practice cannot seek shelter under Article 25. The same logic has been extended to a wide range of contested customs.

Sunita Tiwari v. Union of India: The Petition That Changed the Conversation

In April 2017, Delhi-based human rights advocate Sunita Tiwari filed Writ Petition (Civil) No. 286 of 2017 before the Supreme Court of India under Article 32, seeking a complete ban on the practice of khatna within the Dawoodi Bohra community. [8] The petition argued that the practice constitutes a gross violation of Articles 14, 15, and 21 of the Constitution, which protect the right to equality, prohibition of discrimination on grounds of sex, and the right to life and personal liberty respectively. It further invoked the United Nations Convention on the Rights of the Child, to which India is a signatory, as well as the Universal Declaration of Human Rights of 1948. The petition alleged that approximately 75 per cent of women in the Dawoodi Bohra community had been subjected to this procedure and called upon the State to discharge its constitutional duty under Article 39 to protect the person and well-being of citizens. The petitioner drew attention to the fact that the practice causes “permanent disfiguration to the body of a girl child” and that it is illegal in several countries including the United States, Australia, and the United Kingdom.

The Dawoodi Bohra Women’s Association for Religious Freedom (DBWRF), which claimed to represent over 70,000 community women, filed counter-affidavits contesting the petition vigorously. Senior Advocate Abhishek Manu Singhvi, appearing for the DBWRF, argued that the practice was over 1,400 years old, that it was an essential religious practice within the Fatimid school of Islam, and that any judicial ban would accordingly constitute an unconstitutional interference with the community’s right to freedom of religion under Articles 25 and 26. He further argued that because male circumcision is similarly practised within the community, treating female circumcision differently would itself violate Article 14. [2]

The Supreme Court bench of Chief Justice Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud, while hearing the matter on 27 August 2018, made a series of sharply critical observations. The bench remarked that “this kind of mutilation leaves a permanent emotional and mental scar on small girls,” and added: “you just cannot inflict any kind of injury to another person.” The bench also referred to Article 25(2) and noted that it “enabled the State to make law and if the State does not make the statute, even then on the ground of ‘public order, morality and health’ the practice of FGM can be scrutinised by the court.” The bench was categorical that “the fact that the practice is essential religious practice does not make it constitutional.” [4]

On 24 September 2018, the three-judge bench formally referred the question of the constitutionality of khatna to a larger five-judge Constitution Bench. [8] The order of that date in Sunita Tiwari v. Union of India, WP(C) No. 286/2017, observed that “regard being had to the nature of the case, the impact on the religious sect and many other concomitant factors, we think it apposite not to frame questions which shall be addressed by the larger Bench,” and directed that the matter be considered in its entirety from all perspectives.

The Sabarimala Overlay and the Seven-Judge Constitution Bench

The trajectory of the FGM petition became significantly more complicated in November 2019. While hearing review petitions in the Sabarimala matter — Indian Young Lawyers Association v. State of Kerala, (2018) 10 SCC 689 [5] — the Supreme Court ordered that several pending cases involving gender and religious freedom, including the Sunita Tiwari petition, be referred to a seven-judge Constitution Bench. The majority in the review proceedings explicitly stated that “the issues arising in the pending cases regarding entry of Muslim Women in Durgah/Mosque…of Parsi Women married to a non-Parsi in the Agyari…and including the practice of female genital mutilation in Dawoodi Bohra community…may be overlapping and covered by the judgment under review.” The seven-judge bench is, as of writing, yet to take up the consolidated hearing.

The Sabarimala judgment itself, delivered on 28 September 2018 by a four-to-one majority, is foundational to the pending FGM question. The majority held that the exclusion of women between the ages of ten and fifty from the Sabarimala temple was not an essential religious practice within Hinduism — there being no scriptural evidence that the exclusion was fundamental to the religion — and that “constitutional morality must prevail over social morality.” The Court’s reasoning, that practices grounded in biological distinctions and notions of ritual purity cannot override constitutional guarantees of equality and dignity, applies with even greater force to khatna, which involves permanent physical alteration of a child’s body. Justice D.Y. Chandrachud’s observation that “Dignity of the individual is the unwavering premise of the fundamental rights” carried unmistakable resonance for the FGM question. [5]

Female Genital Mutilation Through the Lens of Fundamental Rights

The constitutional challenge to khatna operates across multiple intersecting provisions of Part III. Article 21, as interpreted through post-Maneka Gandhi jurisprudence, encompasses not merely the right to life in a narrow biological sense but the right to live with dignity, bodily integrity, and freedom from unwanted physical intrusion. The Supreme Court’s nine-judge bench in Justice K.S. Puttaswamy (Retd.) v. Union of India, decided on 24 August 2017, [6] declared the right to privacy to be a fundamental right under Articles 14, 19, and 21 of the Constitution. The judgment held that “privacy recognises the ability of individuals to control vital aspects of their lives” and that the “autonomy of the individual and the right of every person to make essential choices which affect the course of life” lie at its core. The judgment expressly categorised “bodily privacy” — defined as the ability to prevent others from violating one’s body — as a primary type of privacy interest. Since khatna is performed on minor girls aged six to seven without their consent, it constitutes precisely the kind of violation of bodily privacy that Puttaswamy guards against.

Article 14 guarantees equality before law and equal protection of law. The petition argues that khatna is inherently discriminatory: it is performed exclusively on female children with the stated aim of controlling their sexuality, while no comparable tissue-removing procedure is performed on male children for the same purpose. Article 15(1), which prohibits the State from discriminating against any citizen on grounds of sex, would, if engaged, render any State inaction that effectively permits FGM constitutionally suspect. The petition also presses Article 21 in tandem with Article 15, arguing that the constitutional guarantee of life with dignity demands that the State act — legislatively or otherwise — to prevent a practice that mutilates the bodies of girls based on their sex.

Existing Statutory Framework and Its Application to Female Genital Mutilation

India does not have specific legislation criminalising female genital mutilation. This lacuna has meant that the practice has persisted without direct legal prohibition. However, several existing statutory provisions are capable of being applied to Female Genital Mutilation as a matter of interpretation.

The Protection of Children from Sexual Offences Act, 2012 (POCSO) applies to all persons below the age of eighteen. Section 7 criminalises “sexual assault” and provides that “whoever, with sexual intent touches the vagina, penis, anus or breast of the child” commits sexual assault, an offence punishable with a minimum of three years’ imprisonment under Section 8. [7] Legal commentators have argued that khatna — which involves the deliberate cutting of the genitalia of minor girls — may fall within the scope of Section 7, and that the aggravating circumstances present (performed without the child’s consent, causing permanent physical injury) may attract the provisions of aggravated sexual assault under Sections 9 and 10 of the Act. The POCSO Act was enacted in recognition of India’s obligations under the UN Convention on the Rights of the Child and reflects a legislative intent to protect children from all forms of bodily harm involving their genitalia.

The Indian Penal Code, 1860 also provides potential avenues of prosecution. Section 319 defines “hurt” as the causing of bodily pain, disease, or infirmity to any person, while Section 320 defines “grievous hurt” to include the permanent disfiguration of the head or face. Since khatna involves the removal of a part of the body and leaves the child with a permanent alteration, a strong argument exists that it constitutes “grievous hurt” under Section 320, punishable under Section 325 with imprisonment of up to seven years, and under Section 326 where the grievous hurt is caused by means of an instrument. The petition before the Supreme Court specifically sought directions to the Director Generals of State Police to invoke these provisions of the IPC in the absence of dedicated legislation.

Internationally, the contrast is stark. Australia’s first FGM prosecution in the case of R v. A2; R v. KM; R v. Vaziri resulted in the conviction of a retired nurse and a mother belonging to the Dawoodi Bohra community under Section 45 of the Crimes Act, 1900 (NSW), with the court holding that khatna falls squarely within the legal definition of FGM. [3] Following the conviction, the Anjuman-e-Burhani Trust of Sydney conceded that the practice constituted a crime. That concession from within the community — in a jurisdiction where the law was clear — is itself significant.

The Essential Religious Practices Test Applied to Khatna

The most pivotal legal question is whether khatna satisfies the essential religious practices test so as to claim the protection of Article 25. The test, refined through decades of judicial interpretation following Shirur Mutt, requires the court to determine whether the absence of the practice would “fundamentally alter the religion.” The Dawoodi Bohra community argues that khatna is mandated by Daim al-Islam, is over fourteen centuries old within their tradition, and is observed as a matter of religious obligation, thereby satisfying the essentiality criterion.

The counter-argument carries far greater constitutional weight. The Quran — the primary source of Islamic law — makes no reference to female circumcision. Islamic scholarly opinion from across the world broadly rejects the practice as having no Quranic foundation. The practice is banned in several Muslim-majority countries. The Supreme Court’s clear signal during the August 2018 hearing — that essentiality alone does not make a practice constitutional — reflects the growing jurisprudential position that Article 25 cannot be used as a shield for practices that harm the bodies of non-consenting children. The bench drew the explicit analogy of sati and devadasi, both once defended as essential religious obligations and both ultimately abolished. [4]

Constitutional morality, as powerfully articulated in Sabarimala, provides the decisive normative frame. Even where a practice is genuinely embedded in religious tradition, it must conform to the values of equality, dignity, and non-discrimination that the Constitution mandates. A practice that structurally subjugates women — by removing part of their genitalia without consent, in childhood, for the purpose of suppressing their sexuality — is quintessentially in conflict with the constitutional commitment to the dignity of women under Article 21 and the directive of Article 51A(e) to renounce practices derogatory to the dignity of women.

The Path Forward: Legislative and Judicial Imperatives

The matter pending before the seven-judge Constitution Bench will likely shape India’s approach to the intersection of religion and bodily rights for a generation. The court will be called upon to settle foundational questions: whether constitutional morality trumps popular religious morality where the two conflict; whether the essential religious practices test requires reform or abandonment; and whether the right to privacy and bodily autonomy of a minor can ever be abridged on the basis of parental religious belief. At the UN Human Rights Council’s Universal Periodic Review in 2022, Costa Rica recommended that India criminalise FGM and formulate a national eradication plan. India’s response has remained non-committal.

The government’s obligations, as argued by Attorney General K.K. Venugopal during the initial hearings, are clear: the State is bound by Article 25(2) to regulate practices that run counter to public order, morality, and health, and FGM meets all three criteria. [2] The Women and Child Development Ministry’s on-record position — that no official data from the National Crime Records Bureau confirmed the prevalence of FGM in India — has been criticised as reflecting institutional neglect rather than factual absence. Without a specific statute criminalising the practice, prosecution under the IPC and POCSO remains uncertain, dependent on judicial interpretation rather than clear statutory mandate. The enactment of a dedicated FGM prohibition law, along the lines of those in force in the United Kingdom (Female Genital Mutilation Act 2003) and the United States (18 U.S.C. § 116), would place India in conformity with international human rights norms and discharge its obligations under the UN Convention on the Rights of the Child.

Conclusion

The legal journey of khatna from a closely guarded community secret to a question before a seven-judge Constitution Bench reflects the deep and unresolved tension in Indian constitutional democracy between the claims of religious community and the rights of the individual — particularly the female child who bears, on her body and in her memory, the weight of a practice she had no power to refuse. The constitutional provisions are not silent. Article 25’s guarantee of religious freedom is bounded, explicitly and by design, by public order, morality, and health. The doctrine of essential religious practices does not immunise a practice from constitutional challenge; it only establishes a threshold question. And beyond that threshold lies constitutional morality — a morality that demands religion not be used as a vehicle to perpetuate the subordination of women and the violation of children. It is that question, framed with precision by the facts of Sunita Tiwari v. Union of India, that the Constitution Bench must now definitively answer.

References

[1] World Health Organization, “Female Genital Mutilation: Key Facts” (February 2020) — https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation

[2] Supreme Court Observer, “Ban on Female Genital Mutilation — Sunita Tiwari v. Union of India (Case Background)” — https://www.scobserver.in/cases/sunita-tiwari-union-of-india-ban-on-female-genital-mutilation-case-background/

[3] Law School Policy Review, “Examining the Constitutionality of Female Genital Mutilation in India” (December 21, 2022) — https://lawschoolpolicyreview.com/2022/12/21/examining-the-constitutionality-of-female-genital-mutilation-in-india/

[4] Business Standard / PTI, “FGM Leaves Permanent Emotional Scar on Dawoodi Bohra Girls: SC” (August 27, 2018) — https://www.business-standard.com/article/pti-stories/fgm-leaves-permanent-emotional-scar-on-dawoodi-bohra-girls-sc-118082701011_1.html

[5] Supreme Court Observer, “Sabarimala Temple Entry — Indian Young Lawyers Association v. State of Kerala (Case Background)” — https://www.scobserver.in/cases/indian-young-lawyers-association-v-state-of-kerala-sabarimala-temple-entry-background/

[6] Supreme Court Observer, “Fundamental Right to Privacy — Justice K.S. Puttaswamy v. Union of India (Case Background)” — https://www.scobserver.in/cases/puttaswamy-v-union-of-india-fundamental-right-to-privacy-case-background/

[7] LSE Human Rights Blog, “Female Genital Mutilation/Cutting in India: An Urgent Need for Intervention” (May 6, 2022) — https://blogs.lse.ac.uk/humanrights/2022/05/06/female-genital-mutilation-cutting-in-india-an-urgent-need-for-intervention/

[8] Indian Kanoon, Sunita Tiwari v. Union of India, WP(C) No. 286/2017, Order dated 24 September 2018 (Supreme Court of India) — https://indiankanoon.org/doc/181206322/

[9] Indian Kanoon, The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 AIR 282 — https://indiankanoon.org/doc/1430396/