Itm - Petitioner (FD)

ITM II NATIONAL MOOT COURT COMPETITION - 2019
MEMORIAL FOR THE PETITIONER

TEAM CODE -03
BEFORE THE HON’BLE

SUPREME COURT OF ZINDIA
ORIGINAL WRIT JURISDICTION
PUBLIC INTEREST LITIGATION
W.P. (CIVIL) NO. ___ OF 2019
UNDER ARTICLE 32 OF THE CONSTITUTION OF ZINDIA
In the matter of Article 14 and Article 21
of Constitution of Zindia
Sulekha Tiwari…………….…………………………………………………PETITIONER
v.
Union of Zindia & Others………....………………….......…………………RESPONDENTS
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES OF THE SUPREME COURT OF ZINDIA
TABLE OF CONTENTS
TABLE OF AUTHORITIES.................................................................................................. 3
STATEMENT OF FACTS .....................................................................................................8
ISSUES RAISED ....................................................................................................................9.
SUMMARY OF ARGUMENTS...........................................................................................10
WRITTEN PLEADINGS
ISSUE I:
Whether the practice of of Female Genital Mutilation (FGM) or ‘Khatna’ is in violation of the
principles of UDHR , Convention on Rights of Child and the United Nations General Assembly
resolution passed in December 2012 regarding rights of the Child banning
FGM?....................................................................................................................................11
A. Zindia is bound to follow International Obligations.......................................................11
B. Consistent practice of Female Genital Mutilation would lead to violation of such
obligation………………………..……………………………………………………………12
C. Zindia is the appropriate forum to enforce the legal right………………………………15
ISSUE II:
Whether the practice of FGM is in violation of Fundamental Rights including Article 14 and
21 and Article 39 of Constitution of India?..............................................................................16
A.Violation of Personal life and liberty of individuals............................................................16
B. Permanent disfiguration of body..........................................................................................18
C.Right to health.......................................................................................................................18
D.Equality clause under threat..................................................................................................19
E.Article 39(f)...........................................................................................................................20
ISSUE III:
Whether the practice of FGM attracts punishment under the provisions of Indian Penal Code,
1860 ?...................................................................................................................................21
A.Distortion of genitalia is against women’s dignity & respect..............................................21
B.Circumcision of girls in the guise of religious is a crime.....................................................23
2
ISSUE IV:
Whether the practice should be declared as illegal and be made a punishable offence in Zindia
?.....................................................................................................................................25
A. FGM is a self-enforcing social convention –social norm....................................................26
B. Long – term health complications........................................................................................27
C. Female Genital Mutilation discriminatory practice.............................................................29
D. Petitioner have an enforceable legal and fundamental right...............................................29
PRAYER.................................................................................................................................31
3
INDEX OF AUTHORITIES
LIST OF ABBREVIATION
3fdgsdaklnslkc And
S. Section
AIR All India Reporter
Asst. Assistant
CEDAW Convention on the Elimination of All Forms of

Discrimination against Women
DEVW Declaration on Elimination of Violence against Women
ed. Edition
ICCPR International Convention on Civil and Political Rights
ICESCR International Convention on Economic, Social and

Cultural Rights
Ltd. Limited
Ors. Others
SC Supreme Court
SCC Supreme Court Cases
UOI Union of India
UDHR Universal Declaration for Human
u/s. Under Section
v. Versus
4
CASES
 [1](2008 (3) SCC 1)

 AIR 1978 Supreme Court 1675
 Akhtari Bi v. State of Uttar Pradesh
 Anuj Garg v. Hotel Association
 Apparel Export Promotion Council v. A.K. Chopraaru v. State of Kerala
 Francis Coraile vs. UT of Delhi, AIR 1978 SC 597
 Independent thought vs UOI
 Kesavanada Bharati Sripadavalvaru v. State of Kerala,
 Kharak Singh v. State of Uttar Pradesh
 Kharak Singh v. State of Uttar Pradesh
 Maneka Gandhi vs UOI
 Minister for Immigration and Ethnic Affairs v. Tech.
 Munn v. Illinois
 National Legal Services Authority v. Union of India
 PSR Sadhanantham vs RS .Naik
 PSR Sadhanantham vs RS .Naik
 Rajneesh Kapoor v. Union of India, AIR 2007 MP 204.
 State of Maharashtra v. Madhukar Narayan Mardikar
 State of Punjab v. M.S. Chawla
 Sunil Batra v. Delhi Administration
 Sunil Batra v. Delhi Administration
 Unnikrishnan vs State of Andhra Pradesh (1993 SCC (1) 645)
 Vincent v. Union of India
 Vishaka v. State of Rajasthan
BOOKS
1. Basu D.D , Constitution of India ,14th edition 2009, LexisNexis, Butterworths

Wadhwa Publication Nagpur.
2. Jain M.P., Indian Constitutional Law, 6th Edition 2011, LexisNexis Butterworth
Wadhwa Nagpur.
3. Rajendra Prasad, Law of Social Status, Edition 1998, Hindu Law House.
4. Seervai H.M. , Constitutional law of India, 4th Edition 2002, Volume 2, Universal
Book Traders.
5
5. Shukla V.N , Constitution of India, 11th edition 2008, Eastern Book Company.
LEGAL DATABASES
1. Manupatra
2. SCC Online
3. West Law
4. Hein Online
LEXICONS
1. Aiyar Ramanathan P , Advanced Law Lexicon, 3rd Edition, 2005, Wadhwa Nagpur.
2. Garner Bryana, Black‟s Law Dictionary,7th Edition,1999
NATIONAL LEGISLATIONS
1. Goa Children’s Act, 2003, India

2. Indian Penal Code , 1860
3. Prohibition Of Child Marriage Act, 2006, India
4. Protection Of Children From Sexual Offences Act, 2012, India
5. The Constitution Of India, 1950
6. The Protection Of Women From Domestic Violence Act, 2005, India
7. The Rights Of Persons With Disabilities Act, 2016, India
INTERNATIONAL CONVENTIONS
1. Convention on the Elimination of All Forms of Discrimination against Women

(CEDAW)
2. Declaration on Elimination of Violence against Women (DEVAW)
3. General Recommendation No. 14 of the CEDAW on Female Circumcision (1990)
4. General Recommendation No. 19 of the CEDAW
5. International Convention on Civil and Political Rights (ICCPR)
6. International Convention on Economic, Social and Cultural Rights (ICESCR)
7. The Joint General Recommendation/General Comment No. 31 of the Committee on the
Elimination of Discrimination against Women and No. 18 of the Committee on the
Rights of the Child.
8. Universal Declaration for Human Rights (UDHR)
6
STATEMENT OF JURISDICTION
The Hon’ble Supreme Court of Zindia has the jurisdiction in this matter under
Article 32 of the Constitution of Zindia which reads as follows:
“32. Remedies for enforcement of rights conferred by this Part-

(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part.”
\
7
STATEMENT OF FACTS
 Ruhani Naaz, 7 years old, lives in Mendi Bazaar in Numbai city of Zindia. She belongs
to Dohra community, a subsect of Islam.
 One morning, while Ruhani was on her way to school, her grandmother lured to treat
her with chocolates and took her to a small dimly lit room at the back of a decrepit
building near Mendi Bazaar.
 On reaching there, Ruhani was asked to lie down, her hands and legs were held by her
grandmother. A woman who was present in the room pulled her pants down and with a
blade cut off her clitoris.
 Ruhani experienced excessive bleeding and excruciating pain between her legs. She did
not know what had happened with her and why she had to experience such an inhuman
treatment.
 Her grandmother had told her this was a tradition which every girl had to follow. After
some days, Ruhani developed an infection into her vagina, had genital sores and also
experienced post traumatic stress disorder.
 She kept sick for a long time. After a month, Sulekha, a renowned advocate and child
rights activist was invited as a chief guest at Ruhani’s school function where she got to
interact with Ruhani. Ruhani saw a friend in her and shared what she had been going
through and how its repercussions have been haunting her day and night.
 After hearing the incident, Sulekha researched and read articles on the internet where
she got to know that this practice of female genital mutilation was prevalent amongst
the Dohra community.
 She decided to stand up for the women who experienced such cruel, inhuman and
degrading treatment and filed a PIL in the Supreme Court of Zindia. The matter is
pending before the Hon’ble Supreme Court of Zindia.
8
STATEMENT OF ISSUES
ISSUE I:
Whether the practice of of Female Genital Mutilation (FGM) or ‘Khatna’ is in violation

of the principles of UDHR , Convention on Rights of Child and the United Nations
General Assembly resolution passed in December 2012 regarding rights of the Child
banning FGM?
ISSUE II:
Whether the practice of FGM is in violation of Fundamental Rights including Article 14

and 21 and Article 39 of Constitution of India?
ISSUE III:
Whether the practice of FGM attracts punishment under the provisions of Indian Penal
Code, 1860 ?
ISSUE IV:
Whether the practice should be declared as illegal and be made a punishable offence in
Zindia ?
9
SUMMARY OF ARGUMENTS
ISSUE –I
Whether the practice of Female Genital Mutilation (FGM) or ‘Khatna’ is in violation of

the principles of UDHR , Convention on Rights of Child and the United Nations General
Assembly resolution passed in December 2012 regarding rights of the Child banning
FGM?
It is humbly submitted before the Hon’ble Court (hereinafter Petitioner) that the practice of
Female Genital Mutilation (FGM) or ‘Khatna’ is in violation of right to life and personal
liberty and security of a person supported by UDHR, and also violates several duties of state
that are mentioned under the purview of Convention on Rights of Child and the United Nations
General Assembly resolution on banning Female Genital Mutilation.
ISSUE –II
Whether the practice of FGM is in violation of Fundamental Rights including Article 14

and 21 and Article 39 of Constitution of India?
It is humbly submitted before the Hon’ble Court (hereinafter Petitioner) that, the practice of
Female Genital Mutilation (FGM) or ‘Khatna’ is in violation of the Fundamental Rights of the
Constitution, attracting Article 14, 21 and 39(f) which are under the purview of protecting life,
bodily integrity, a good standard of health, socialistic principle and the policy orientation in
protection from inhumane activities as a faculty of the State.
ISSUE- III
Whether the practice of FGM attracts punishment under the provisions of Indian Penal
Code, 1860 ?
Female Genital Mutilation (FGM) or ‘Khatna’ falls under the scale of punitive provisions for
it’s inhumane procedure, permanent disfiguration to the body of a girl child, for causing total
mental and psychological problems for the females in their tender age. It is submitted to be
punishable under section 324, 326 of Indian Penal Code and Section 3 of POCSO Act.
ISSUE –IV
Whether the practice should be declared as illegal and be made a punishable offence in
Zindia ?
It is humbly submitted before the Hon’ble Court (hereinafter Petitioner) that, Every act or
practice must stand the scrutiny of the Constitution of India and we demonstrate it to be non-
discriminatory. FGM is not only illegal but is also unconstitutional as it disproportionally
impacts the girl child. It is also prohibited by International conventions which Zindia being
signatory.
10
ARGUMENTS ADVANCED
I.THE PRACTICE OF FEMALE GENITAL MUTILATION (FGM) OR‘KHATNA’ IS

IN VIOLATION OF THE PRINCIPLES OF UDHR, CONVENTION OF RIGHTS OF
CHILD AND THE UNITED NATIONS GENERAL ASSEMBLY RESOLUTION
PASSED IN DECEMBER 2012 REGARDING RIGHTS OF THE CHILD BANNING
FGM
It is humbly submitted before the Hon’ble Court (hereinafter Petitioner) that the practice of
Female Genital Mutilation (FGM) or ‘Khatna’ is a “harmful cultural practice” that violates
human rights of girls and women as enshrined in the 1948 Universal Declaration of Human
Rights (UDHR); the 1966 International Covenant on Economic, Social and Cultural Rights
(ICESCR); and the 1966 International Covenant on Civil and Political Rights (ICCPR). It is
also prohibited under the 1979 Convention on the Elimination of All Forms of Discrimination
against Women (CEDAW) and the 1989 Convention on the Rights of the Child (CRC). The
United Nations (UN) General assembly adopted Resolution 67/146 on 20 December 2012 that
banned FGM worldwide. The writ petition filed by the Petitioner against the Respondent is
maintainable before the Supreme court of Zindia as [A]. Zindia is under an obligation to protect
the best interest of child. [B]. Consistent practice of Female Genital Mutilation shall lead to
violation of such obligation. [C]. Further, the violation of such obligation would infringe the
legal as well as fundamental right of the Petitioner and therefore, the supreme court of Zindia
is the appropriate forum to enforce the legal right which has been infringed by the respondent
violating the fundamental rights.
A.Zindia is bound to follow International Obligations
(¶1.)In order to fulfil spirit of international obligations which Zindia has entered into, having
no conflict with the existing domestic law, the Hon’ble Supreme Court has extensively gave
importance in upholding the international standards and conventions ratified. It is humbly
submitted before this Hon’ble Court that United Nation Convention on the Rights of the Child
(UNCRC) , United Nation Declaration on Human Rights (UDHR) and UN charter, to which
Zindia, a ratified member is under an obligation to protect the right to life and personal liberty
of child not to cause any inhuman treatment or damage and also not to violate the basic human
rights.
11
(¶2.)The protection of child rights are a praised possession of Zindia as they are considered as
future strength of nation the courts shall not be detested to refer to the International
Conventions in safeguarding those buds. Children signify eternal optimism in the human being
and provide potential for the development of nation and every nation developed or developing
links its future with the status of the child.
(¶3.)A child of today cannot develop to be a responsible and productive member of tomorrow’s
society unless an environment, which is favourable to his social and physical health, is assured
to him1. If the children are deprived of their childhood-socially, economically, physically and
mentally2 the nation gets dispossessed of the potential human resources for social progress,
economic empowerment, peace and order, social stability and good citizenry.
(¶4.)The action of respondent have often indulged in actions violating the same by a consistent
practice of Female Genital Mutilation by Dohra community. It was submitted, in Vishaka v.
State of Rajasthan, 1997, a landmark judgment on sexual harassment of women at
workplaces, that “regard must be had to international conventions and norms for construing
domestic law when there is no inconsistency between them and there is a void in the domestic
law”. Not only did the court use international law to find the meaning of domestic law, it also
held that international conventions not inconsistent with fundamental rights must be read “to
enlarge the meaning and content thereof”. This was reaffirmed in the National Legal Services
Authority v. Union of India, 2014 – the case that recognised transgender as a third category
of gender. The court said: ‘If parliament has made any legislation which is in conflict with
the international law, then Indian courts are bound to give effect to the Indian law, rather
than international law. However, in the absence of a contrary legislation, municipal courts
in India would respect the rules of international law.
1
Article 2 of the United Nations Convention on the Rights of the Child
2
Article 37 of the United Nations Convention on the Rights of the Child
12
(B) Consistent practice of Female Genital Mutilation would lead to violation of such
obligation
(¶5.)FGM, it is a violation of the human rights of women and children. It infringes on the right
to life and physical integrity3, the right to health4and the right to freedom from torture, cruel
and unusual treatment, and violence5. Since FGM is mostly practiced on girls below the age of
18 years, it is also a violation of rights enshrined in the United Nations Convention on the
Rights of the Child, 1989 (UNCRC) and violates the guarantee of non-discrimination.
(¶6.)The right to be free from gender discrimination is guaranteed in numerous international

human rights instruments. Article 1 of the Convention on the Elimination of all forms of
Discrimination against Women, 1979 (CEDAW) defines ‘discrimination’ as:“any distinction,
exclusion, or restriction made on the basis of sex which has the effect or purpose of impairing
or nullifying the recognition, enjoyment, or exercise by women, irrespective of their marital
status, on a basis of equality of men and women, of human rights and fundamental freedoms in
the political, economic, social, cultural, civil, or any other field.”6
(¶7.)Unlike male circumcision that has beneficial health consequences, FGM/C adversely
affects the health of females and is a practice aimed primarily at controlling women’s sexuality
and subordinating their role in society. When a woman undergoes FGM/C, she is a victim of
3
Article 3, UDHR: “Everyone has the right to life, liberty and security of person.”
Also Article 6(1), ICCPR: “1. Every human being has the inherent right to life. This right shall be protected by
law. No one shall be arbitrarily deprived of his life.”
4
Article 12, ICESCR: “1. The States Parties to the present Covenant recognize the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right
shall include those necessary for:
(a) The provision for the reduction of the stillbirth-‐‑rate and of infant mortality and for the healthy development
of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) The creation of conditions which would assure to al l medical service and medical attention in the event
of sickness.”
5
Article 5, UDHR: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.”
Article 7, ICCPR: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment. In particular, no one shall be subjected without his free consent to medical or scientific
experimentation.”
6
Article 1, CEDAW
13
discrimination based on sex that compromises the recognition and enjoyment of her
fundamental rights and liberties. The prohibition of gender discrimination is supported in
numerous international and regional human rights instruments including Universal Declaration
for Human Rights, 1948 (UDHR)7, International Convention on Civil and Political Rights
(ICCPR)8 and International Convention on Economic, Social and Cultural Rights (ICESCR).9
(¶8.)The right to life is considered a basic human right and is protected by a number of
international instruments, including Article 3 of the UDHR, Article 6(1) of the ICCPR and
Article 6 of the UNCRC.10 In extreme cases of FGM/C, the procedure also sometimes leads to
death or may also contribute to maternal and neo-natal deaths.
(¶9.)The right to physical integrity, while often associated with the right to freedom from
torture, encompasses a number of broader human rights principles, including the inherent
dignity of the person, the right to liberty and security of the person, and the right to privacy.
Acts of violence threatening a person’s safety, such as FGM/C, also violate a person’s right to
physical integrity.
(¶10.)The right to the highest attainable standard of physical and mental health is
enshrined in a number of international and regional instruments particularly Article 25 of the
UDHR.11 Further, Article 12 of the ICECSR states that all State parties to Covenant recognize
the right of everyone to the enjoyment of the highest attainable standard of physical and mental
health.12
(¶11.)While the immediate health consequences include extreme pain and bleeding, the long-
‐‑term consequences can include chronic pain, infections, decreased sexual enjoyment and
psychological consequences, such as post-‐‑traumatic stress disorder as mentioned earlier.13
Further, a WHO multi-‐‑country study confirmed that women who had undergone genital
7
Article 2, UDHR
8
Article 2, 3 and 26, ICCPR
9
Article 2 and 3, ICECSR
10
Article 6, UNCRC: “1. States Parties recognize that every child has the inherent right to life.
2. States Parties shall ensure to the maximum extent possible the survival and development of the child.”
11
Article 25, UDHR: “Everyone has the right to a standard of living adequate for the health and well-being of
himself and of his family.”
12
Article 12, ICECSR: “The States Parties to the present Covenant recognise the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health”.
13
27 OHCHR, UNAIDS, UNDP, UNECA, UNESCO, UNFPA, UNHCR, UNICEF, UNIFEM, WHO,
‘Eliminating Female Genital Mutilation: An Interagency Statement’, 2008 at p. 11.
14
mutilation/cutting faced significantly increased risks for adverse events during childbirth and
death rates among babies during and immediately after birth were higher for those born to
mothers who had undergone FGM.
(¶12.)FGM is commonly performed upon girls in the age range of 1 to 15 years. Therefore, the
international community has generally regarded FGM as a violation of the rights of the child.
The UNCRC places on the government the ultimate responsibility for ensuring that the
fundamental rights of children are recognized and protected. The guiding standard established
by the UNCRC under Article 3 is “the best interests of the child.” Article 24, UNCRC,
specifically mentions traditional practices, saying that “States Parties shall take all effective
and appropriate measures with a view to abolishing traditional practices prejudicial to the health
of children.”
(¶13.)It is almost accepted proposition of law that the rules of customary international law
which are not contrary to the municipal law shall be deemed to have been incorporated in the
domestic law and shall be followed by the courts of law. As Zindia is a member of United
Nations and a ratified party to the aforementioned conventions it is bound to follow the
obligations and responsibilities set out by these International Instruments i.e to not cause any
inhumane treatment and to protect the best interest of child14.
C. Zindia is the appropriate forum to enforce the legal right
(¶14.)Art. 51 of the Indian Constitution directs the State that it shall endeavor to foster respect
for international law and treaty obligations in the dealings of organized peoples with one
another. In the case of Kesavanada Bharati Sripadavalvaru v. State of Kerala, it was stated
that in view of Art. 51 of the Constitution, the Court must interpret language of the Constitution,
if not intractable, in the light of United Nations Charter and the solemn declaration subscribed
to it by Zindia. The Hon’ble Supreme Court has also pointed out in the case of Apparel Export
Promotion Council v. A.K. Chopra, that domestic courts are under an obligation to give due
regard to the international conventions and norms for construing the domestic laws, more so,
when there is no inconsistency between them and there is a void in domestic law. In other
words, Courts in India would apply the rules of international law according to the principles of
comity of Nations, unless they are overridden by clear rules of domestic law in the present case
as there is no overridden by international law.
14
Article 3 of UNCRC
15
(¶15.)It is almost accepted proposition of law that the rules of customary international law
which are not contrary to the municipal law shall be followed by the courts of law. The rules
laid down in the aforementioned International Instruments casts an obligation upon the
Respondents the following of which is their duty. This duty is directed towards the Petitioners
for the reason that the failure of this internationally casted duty towards Respondents and hence
the Petitioners has a title, that is to say, certain practice of event by a particular communities
consistent practice doesn’t have the right to practice inhumane treatment.
(¶16.)Furthermore, International law can be used to provide a relief contained in a covenant
but not in national law. As Zindia is a ratified party of these conventions it creates a legitimate
expectation amongst the people with regard to its observance. This rule of legitimate
expectation of an international rule has been recognized in the case of Minister for Immigration
and Ethnic Affairs v. Tech. For the aforementioned reasons, the Petitioners have a legal right
which is enforceable and this legal right flows from the ‘enforceable public duty’ that is casted
upon the Respondent.
(¶17.)It is humbly submitted that while interpreting legal provisions a court of law cannot be
unmindful of the hard realities of life. The approach of the court in dealing with such cases
should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than
formal and practical rather than precedental.
In light of the aforementioned reasons, it is humbly submitted that the practice of Female
Genital Mutilation is in gross violation of International Convention.
II. THE PRACTICE OF FGM IS IN VIOLATION OF FUNDAMENTAL RIGHTS

INCLUDING ARTICLE 14 AND 21 AND ARTICLE 39 OF CONSTITUTION OF
INDIA
Female Genital Mutilation (FGM) or ‘Khatna’ is in violation of the Fundamental Rights of the
Constitution, attracting Article 14, 21 and 39(f) which are under the purview of protecting life,
bodily integrity, a good standard of health, socialistic principle and the policy orientation in
protection from inhumane activities as a faculty of the State.
16
A. Violation of Personal life and liberty of individuals
(¶1.)Article 21, a protector of life and liberty of every person is considered as a Magna Carta
of the Constitution15and a most organic and progressive provision in our living constitution
forming as a foundation of every laws16. The term “life” and personal liberty have a wider sense
giving space to many interpretations and a broader meaning by the Supreme Court.
Right to Life does not merely mean the continuance of a person‟s animal existence but a quality
of life.
(¶2.)In Munn v. Illinois,:
“By the term “life” as here used something more is meant than mere animal existence. The
inhibition against its deprivation extends to all those limbs and faculties by which life is
enjoyed. The provision equally prohibits the mutilation of the body by amputation of an arm or
leg or the pulling out of an eye, or the destruction of any other organ of the body through which
the soul communicates with the outer world.”- this judgement delivered was approved and
quoted in the Supreme Court verdict17 . It is thus submitted that the practice of Female Genital
Mutilation is self-explanatory in emphasising the deprivation of the life and personal liberty
and also enumerated to include a life with good health so as to enjoy all faculties of the human
body in their prime conditions in a peaceful manner18.
(¶3.)Female Genital Mutilation as stated, is being practiced to the girls in their tender age which
falls under the purview of Child protection and rights which deliberately being underscored by
the International script, “ The Convention on the Rights of the Children” emphasising its
importance of ensuing protection and care for children and recognizes the responsibility of state
parties in this regard19. Various rulings by the court of law have stated that depriving the child
of the right was not only against the interests of the child but against the interest of the society
as well20through which it is submitted FGM to be a an action of depriving a societal interest.
Being it a girl child they are at a very much alive and kicking right whether she is married or
not and deserve recognition and acceptance21.
(¶4.)In the purview of personal liberty it is most humbly submitted that the expression 'personal
liberty' used under Article 21 has been given a very wide and liberal interpretation by the
15
PSR Sadhanantham vs RS .Naik
16
Rajneesh Kapoor v. Union of India, AIR 2007 MP 204.
17
Kharak Singh v. State of Uttar Pradesh
18
Sunil Batra v. Delhi Administration
19
Article 3
20
Akhtari Bi v. State of Uttar Pradesh
21
Independent thought vs Union of India
17
Supreme Court.22 . Personal liberty is used as compendious term to include itself all varieties
of rights which go to make up personal liberties23.Under its wider interpretation the practice of
Female Genital Mutilation violates the basic essence of personal liberty by its inhumane
procedure and its reasonability. The abridged version makes it clear that FGM if continued in
action would lead to an uncontrollable violation of the Magna Carta of the Constitution24. It is
submitted that in any organized society, right to live as a human being is not ensured by meeting
only the animal needs of man. It is secured only when the person is assured of all facilities to
develop himself and is freed from restrictions which inhibit his growth25.Noting that the
impugned practice, prevalent among the members of the Dawoodi Bohra community in India,
infringes the Right to Privacy, recognised as a Fundamental Right in Justice K. S. Puttaswamy
(2017) Judgment, Justice D. Y. Chandrachud weighed in, “one has supreme authority over
genitalia...it is central to one’s identity, dignity and autonomy...”
B.Permanent Disfiguration of body
(¶5.)As Article 21 incorporates various rights to the Human directly or indirectly the practice
of FGM signifies the need for protection of physical integrity of the girl child. The right to
physical/ bodily integrity, is often associated with the right to freedom from torture,
encompasses a number of broader human rights principles, including the inherent dignity of
the person the right to liberty and security of the person, and the right to privacy. The right to
bodily integrity was initially recognized in the context of privacy in State of Maharashtra v.
Madhukar Narayan Mardikar26, wherein it was observed that no one has any right to violate
the person of anyone else, made the following statement about the privacy rights of women:
"Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and
when he likes. So also it is not open to any and every person to violate her personal rights as
and when he wishes. She is entitled to protect her personal rights if there is an attempt to violate
it against her wish. She is equally entitled to protection of the law." So it is submitted that any
act of violence threatening the person’s physical integrity, which falls under the purview of
deprivation of any person’s above mentioned rights leads to violation of Article 21.27
22
Maneka Gandhi vs UOI
23
Kharak Singh v. State of Uttar Pradesh
24
PSR Sadhanantham vs RS .Naik
25
Francis Coraile vs. UT of Delhi, AIR 1978 SC 597
26
AIR 1991 SC 207
27
Article 21
18
C.Right to health
(¶6.)The right to life guaranteed under Article 21 includes within in its ambit the right to health
and medical care28,as emphasised under international and regional instruments particularly
Article 25 of the UDHR which talks about the right to the highest attainable standard of physical
and mental health, With regard to female genital mutilation, such a practice tends to a violation
of a person’s right to the highest attainable standard of health, thus it is suitable to submit that
FGM directly affecting the healthy body which is the very foundation of all human activities29to
be brought under the purview of Fundamental Right to Life and Personal Liberty guaranteed
under Article 21. The consequences of female genital mutilation for most women who deliver
outside the hospital setting are expected to be even more severe30 and such an absence of
medical necessity and can lead to severe consequences for a woman’s physical and mental
health, which affects the basic standard enshrined under Article 21. Thus it is submitted before
the court of law, Female genital mutilation is a violation of a person’s right to the highest
attainable standard of health, which directly affects the person’s Right to life.
D.Equality clause under threat
(¶7.)The treatment of a human being which offends human dignity, imposes avoidable torture
and reduces the man to the level of a beast would certainly be arbitrary and can be questioned
under Art. 1431.. Female Genital Mutilation serves all the ingredients mentioned above;
 Deprives human dignity32
 Impose torture through the method of action
 Affects person’s physical integrity
(¶8.)FGM is a part of wider patriarchal practices, which is existing for a longer period rooted
in inequality between the sexes and aimed at controlling women and girls sexuality, their bodies
and their sexual and reproductive rights. It is submitted that sustaining gender norms and
stereotypes affects the individuals right to be treated equally, that contravene human rights. In
the light of Anuj Garg v. Hotel Association33 case, it stated “Gender stereotyping is contrary to
28
State of Punjab v. M.S. Chawla
29
Vincent v. Union of India
30
WHO Study Group on Female Genital Mutilation and Obstetric Outcome, (2006).
31
Article 14 of Indian Constitution reads as ‘Equality before law The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth’
32
AIR 1978 Supreme Court 1675 , Sunil Batra v. Delhi Administration
33
(2008 (3) SCC 1)
19
the principles of equality as enshrined in the Indian Constitution and India’s international
obligations under CEDAW as have elaborated earlier”. FGM precisely denies the equality
clause to the women directly and indirectly creating a disadvantage with their physical and
mental integrity; freedom from violence; the highest attainable standard of health; freedom
from discrimination on the basis of sex; freedom from torture, cruel, inhuman and degrading.
(¶9.)It is submitted that the practice of Female Genital Mutilation is unconstitutional as it pose
gender stereotyping in women and girls and thus is violative of their fundamental rights under
Articles 14 and 1534 of the Indian Constitution. Practising FGM under the shelter of custom
and religion victimises women and violates their rights to physical autonomy and their right to
life guaranteed under Article 21 of the Indian Constitution.It is for the court to review that the
majoritarian impulses rooted in moralistic tradition do not impinge upon individual autonomy.
E. Article 39(f)
“Certain principles of policy to be followed by the State: The State shall, in particular, direct
its policy towards securing
(f)) that children are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment”
(¶10.)The view that Part III and Part IV of the Constitution are not mutually exclusive to each
other and should not be read in exclusion, the Fundamental Rights (part III) are the means
through which the goals enumerated in Part IV are achieved.35 It is just to be submitted that the
non-justifiable part of the Constitution where Article 39 is placed are indirectly achieved
34
Article 15 of Indian Constitution reads as ‘ Prohibition of discrimination on grounds of religion, race, caste,
sex or place of birth
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth
or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any
disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of
State funds or dedicated to the use of the general public
(3) Nothing in this article shall prevent the State from making any special provision for women and children
(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision
for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes
and the Scheduled Tribes’
35
Unnikrishnan vs State of Andhra Pradesh (1993 SCC (1) 645)
20
through Part III of the Constitution, so in recognition of the rights of the people either of the
provisions should not be compromised.
(¶11.)Relating Article 39(f) and the practice of FGM, It is submitted that the practice of Female
Genital Mutilation attract the provisions of this Socialist principle of the Constitution, and
emphasises on securing and providing all required facilities to the children ( as FGM is
practiced widely among the tender aged children) specified in the basic norm of the faculty of
the State.
Genital Mutilation is in gross violation of International Conventions
III. THE PRACTICE OF FGM ATTRACTS PUNISHMENT UNDER THE

PROVISION OF INDIAN PENAL CODE , 1860
It is humbly submitted before the Hon’ble Court (hereinafter Petitioner) that,the practice of
Female Genital Mutilation (FGM) or ‘Khatna’ falls under the scale of punitive provisions for
it’s inhumane procedure, permanent disfiguration to the body of a girl child, for causing total
mental and psychological problems for the females in their tender age. It is submitted that it
shall be punishable under section 324, 326 of Indian Penal Code and Section 3 of POCSO Act.
A.Distortion of genitalia is against women’s dignity & respect.
(¶1.)FGM practice is a violation of the right to privacy of women and that this is a case of
sexual sensitivity & health can be dangerous for them. This practice is the focal point of any
person’s identity & this act is against person’s identity causing “permanent disfiguration to
the body of a girl child and women”.
(¶2.)A criminal act cannot be allowed merely because it’s a religious practice. FGM has been
causing “permanent emotional and mental scar” on girls, violation of the dignity of women
and subjugation of women sexuality under the garb of religious practice. Thus, any cultural
tradition or custom or religious tenet cannot be used as a tool that comes into direct conflict
with the values enshrined in the Constitution.
(¶3.) The bodily integrity of a woman been subject to some external authority causing grievous
hurt where one’s genitals are extremely private affairs. By referring UDHR and CRC, it can be
contended that the practice is inhuman and a violation of Fundamental rights, It can be treated
as an offence under IPC.
21
(¶4.)According to the WHO, the immediate complication of FGM/C can include excessive
bleeding (haemorrhage), genital tissue swelling, wound healing problems, injury to
surrounding genital tissue, shock and death while the long term consequences include urinary
problems, vaginal problems, menstrual problems, sexual problems etc.36 and thus persons
undertaking FGM/C may be prosecuted under the IPC.Particularly, Sections 324 and 326, IPC
provide penalties of imprisonment and fines for ‘voluntarily causing hurt’ and ‘voluntarily
causing grievous hurt’.37
(¶5.)Mere words do not amount to an assault. But the words which a person uses may give to
his gestures or preparation such a meaning as may make those gestures or preparations amount
to an assault.38
(¶6.)According to Justice Raghubir Dayal, Cheating39 can be committed in either of the two
ways described in Section 415, IPC it’s not however necessary that deception should be
expressed in words but it may be by conduct or implied in the nature of transaction itself.
Deception: The person deceived may also be intentionally induced to do or to omit to do
anything which he would not have done if not deceived, and which act of his caused or was
likely to cause damage or harm in body, mind, reputation or property.
(¶7.)52. “Good faith”.—Nothing is said to be done or believed in “good faith” which is done
or believed without due care and attention.
The expression ‘due care and attention’ used in this section has nowhere been defined in the
Code. The Courts have tried to explain it on the basis of their own judgment based on logic
and reason. A good intention and reasonable care and skill are important factors to be taken
into account to determine as to whether an act has been done in good faith. General
36
See: http://www.who.int/mediacentre/factsheets/fs241/en/
37
Section 324 of IPC: “Voluntarily causing hurt by dangerous weapons or means.-- Whoever, except in the case
provided for by section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting,
or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated
substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by
means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the
blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may
extend to three years, or with fine, or with both.”
Section 326 of IPC: “Voluntarily causing grievous hurt by dangerous weapons or means.--Whoever, except in the
case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting,
stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means
of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any
explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow,
or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with
imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
38
Section 351. Assault.—Whoever makes any gesture, or any preparation intending or knowing it to be likely
that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or
preparation is about to use criminal force to that person, is said to commit an assault.
39
415. Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived
to deliver any proper¬ty to any person, or to consent that any person shall retain any property, or intentionally
induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so
deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind,
reputation or property, is said to “cheat”. Explanation.—A dishonest concealment of facts is a deception within
the meaning of this section.
22
circumstances and the capacity and intelligence of the concerned person must be kept in mind.
The phrase “due care and attention” implies genuine effort to reach the truth and not ready
acceptance of an ill-nurtured belief. It has been held that when a question arises as to whether
a person acted in good faith, and then it devolves upon him to show not merely that he had a
good insertion but that he exercised such care and skill as the duty reasonably demanded for
its due discharge.
(¶8.)In Sukaroo Kabiraj v. Emp., the accused operated upon the deceased for internal piles by
an ordinary knife resulting in his death from haemorrhage and blood loss. It was held that even
though he had performed similar operations before, his act could not be held to have been done
in good faith because he did not hold any degree in surgery which would make him legally
entitled to perform operations.
(¶9.)Under the eighth clause of grievous hurt40, any hurt which endangers life or which causes
the victim to be during the space of twenty days in severe bodily pain, or unable to follow his
ordinary pursuits amounts to grievous hurt. Where a doctor describes an injury as dangerous
to life, he means that this is a hurt which endangers life, and so the injury is grievous hurt.
B. Circumcision of girls in the guise of religious is a crime
(¶10.)Any touching of the genitals of a woman with the exception of for medical reason is an
offence under the IPC and the POCSO, the only exception being medical purposes, even if a
doctor or a ‘dai’ was to touch the genital parts for no medical purpose, it would attract the IPC.
(¶11.)Section 3 of the Protection of Children from Sexual Offences Act, 2012 (POCSO
Act) that addresses penetrative sexual assault by any person on any child, inter alia defines it
as insertion of any object into the vagina of the girl. 41 It is established precedence that
penetration in sexual offences need not be complete penetration. In fact, Explanation 1 of
Section 375, IPC categorically states that the term vagina includes labia majora. FGM/C, which
requires insertion of a sharp object into the vagina of a child, may be covered under Section 3,
40
Sec 320 : Grievous hurt.—The following kinds of hurt only are designated as “grievous”:—
(First) — Emasculation.
(Secondly) —Permanent privation of the sight of either eye.
(Thirdly) — Permanent privation of the hearing of either ear,
(Fourthly) —Privation of any member or joint.
(Fifthly) — Destruction or permanent impairing of the powers of any member or joint.
(Sixthly) — Permanent disfiguration of the head or face.
(Seventhly) —Fracture or dislocation of a bone or tooth.
(Eighthly) —Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in
severe bodily pain, or unable to follow his ordinary pursuits
41
Section 3(b) of POCSO: “Penetrative sexual assault.- A person is said to commit "penetrative sexual assault"
if-
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or
anus of the child or makes the child to do so with him or any other person”
23
POCSO Act read with Explanation 1 of section 375 IPC.touching the private part is a crime
under POCSO. section 42A of the POCSO Act to be read together with the IPC, in addition to
and not in derogation of the IPC.
(¶12.)The Goa Children’s Act, 2003 (GC Act) under Section 2(y)(i) defines ‘Sexual assault’
as “different types of intercourse; vaginal or oral or anal, use of objects with children”, and
“deliberately causing injury to the sexual organs of children,...”FGM depending on facts
and circumstances may fall to be prosecuted under any one of these provisions.
(¶13.)The National Policy for Children, 2013 (NPC) affirms that: ”the State is committed to
taking affirmative measures -‐‑ legislative, policy or otherwise -‐‑ to promote and safeguard
the right of all children to live and grow with equity, dignity, security and freedom, especially
those marginalised or disadvantaged; to ensure that all children have equal opportunities; and
that no custom, tradition, cultural or religious practice is allowed to violate or restrict or
prevent children from enjoying their rights.". The NPC recognises and prioritises the right to
health, survival, development and protection as inalienable rights of children. With regard to
protection, the NPC recognises that “a safe, secure and protective environment is a
precondition for the realisation of all other rights of children."ʺ It commits to creating ”a
caring, protective and safe environment for all children, to reduce their vulnerability in all
situations and to keep them safe at all places, especially public spaces"ʺ, and protecting
children from all forms of violence, abuse, exploitation and discrimination, or any activity that
harms their personhood or impedes their development.
(¶14.)Further, the NPC notes the State'ʹs obligation to take special protection measures to
secure the rights of children in need of special protection, as characterised by "ʺtheir specific
social, economic and geo-‐‑political situations, including their need for rehabilitation and
reintegration"ʺ. The Policy also states that the State must "ʺenact progressive legislation, build
a preventive and responsive child protection system, including emergency outreach services,
and promote effective enforcement of punitive legislative and administrative measures against
all forms of child abuse and neglect to comprehensively address issues related to child
protection."ʺ
(¶15.)The centrally sponsored Integrated Child Protection Scheme (ICPS), launched in 2009
by the Ministry of Women and Child Development, aims to create and establish an efficient
protective system for vulnerable children. Its objectives include institutionalising and
integrating essential services and strengthening structures for emergency outreach, institutional
care, family and community based care, counselling and support services; strengthening child
protection at family and community level, and promoting preventive measures to protect
children from situations of vulnerability, risk and abuse. The scheme aims to integrate service
provision into a range of existing services to cater to the multiple needs of children in difficult
24
circumstances, through an interface with various sectors, including health, education, judiciary,
police, and labour, among others. Systems under ICPS promote right to privacy and
confidentiality of the child and institutionalisation of the child is seen as a measure of last resort.
(¶16.)While the practice of carrying out FGM may qualify as a form of “hurt or grievous hurt”
under the IPC and a crime under Section 3 of the POCSO Act being carried out with an
instrument used for cutting and may be addressed under the existing laws of sexual assault,
child sexual abuse and domestic violence, addressing this practice requires a more holistic
approach. Such an approach needs to address the various other aspects of FGM including
abetting or aiding the practice, propagating the practice, prevention of FGM, regulations on
medical/health professionals who carry out this practice, duty to report, support and
rehabilitative provisions and awareness generation.
Genital Mutilation is a crime and is a punishable offence under Indian Penal Code and
various other Acts and schemes of the government of Zindia.
IV. THE PRACTICE SHOULD BE DECLARED AS ILLEGAL AND BE MADE A

PUNISHABLE OFFENCE IN ZINDIA
It is humbly submitted before the Hon’ble court that Every act or practice must stand the
scrutiny of the Constitution of India and we demonstrate it to be non- discriminatory. FGM is
not only illegal but is also unconstitutional as it disproportionally impacts the girl child. It is
also prohibited by International conventions which Zindia being signatory. A. FGM is a self-
enforcing social convention –social norm, causing B. Long – term health complications further
C. Female Genital Mutilation discriminatory practice and the D. Petitioner have an enforceable
legal and fundamental right.
A. FGM is a self-enforcing social convention –social norm
(¶1.)Female genital mutilation (FGM) comprises 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.
(¶2.)FGM functions as a self-enforcing social convention or social norm. In societies where
it is practised, it is a socially upheld behavioural rule. Families and individuals continue to
perform it because they believe that their community expects them to-do so. They further
25
expect that if they do not respect the social rule, they will suffer social consequences such as
derision, marginalisation and loss of status.
(¶3.)In fact, it is often practised even when it is known to inflict harm upon girls because the
perceived social benefits of the practice are deemed higher than its disadvantages42.
(¶4.)Practice of any type of FGM is a violation of the human rights of girls and women.
According to Article 25 which clearly highlights that a religious practice can be stopped if it
went against “ public order, morality and health”.
(¶5.)FGM is known to cause harmful health consequences to girls and women in many ways.
The removal of or damage to healthy, normal genital tissue interferes with the natural
functioning of the body and causes several immediate and long-term physical, psychological
and sexual consequences43.
B. Long – term health complications
(¶6.)Female genital mutilation is associated with a series of health risks and consequences.
Almost all those who have undergone female genital mutilation experience pain and bleeding
as a consequence of the procedure. The intervention itself is traumatic as girls are usually
physically held down during the procedure44. Those who are infibulated often have their legs
bound together for several days or weeks thereafter45.
(¶7.)It also ignores the long-term complications of the practice, including sexual,
psychological and obstetrical complications that have been found to be associated with FGM,
independently of who performs it.
(¶8.)Reinfibulation recreates, usually several times during a woman’s life, the (removed) tight
vaginal introits of the original infibulations. This recreates the same problems of
gynaecological, sexual and reproductive health, including difficulties associated with childbirth
and the need for further surgeries that the original infibulations had created. This consequently
repeats and increases the suffering for girls and women. Other physical and psychological
health problems occur with varying frequency. Generally, the risks and complications
42
(UNICEF, 2005a).
43
Eliminating female genital mutilation: an interagency statement. (UNAIDS, UNDP, UNECA, UNESCO,
UNFPA, UNHCHR, UNHCR, UNICEF, UNIFEM, WHO. Geneva, World Health Organization, 2008),
Berg RC, Denison EM-L, Fretheim A. Psychological, social and sexual consequences of female genital
mutilation/cutting (FGM/C): a systematic review. Report. Oslo, Norwegian Knowledge Centre for the Health
Services, 2010.
44
(Chalmers and Hashi, 2000; Talle, 2007)
45
(Talle, 1993)
26
associated with Types I, II and III are similar, but they tend to be significantly more severe and
prevalent the more extensive the procedure.
(¶9.) Findings from a WHO multi-country study in which more than 28,000 women
participated, confirm that women who had undergone genital mutilation had significantly
increased risks for adverse events during childbirth. Higher incidences of caesarean section and
postpartum haemorrhage were found in the women with Type I, II and III genital mutilation
compared to those who had not undergone genital mutilation, and the risk increased with the
severity of the procedure46.
(¶10.)A striking new finding from the study is that genital mutilation of mothers has negative
effects on their newborn babies. Most seriously, death rates among babies during and
immediately after birth were higher for those born to mothers who had undergone genital
mutilation compared to those who had not: 15% higher for those whose mothers had Type I,
32% higher for those with Type II and 55% higher for those with Type III genital mutilation.
(¶11.)It was estimated that, at the study sites, an additional one to two babies per 100 deliveries
die as a result of female genital mutilation. The consequences of genital mutilation for most
women who deliver outside the hospital setting are expected to be even more severe47.The high
incidence of postpartum haemorrhage, a life-threatening condition, is of particular concern
where health services are weak or women cannot easily access them.
C.Female Genital Mutilation discriminatory practice
(¶12.)FGM of any type is a violation of the human rights of girls and women48, including: the
right to non-discrimination on the grounds of sex; the right to life when the procedure results
in death; the right to freedom from torture or cruel, inhuman or degrading treatment or
punishment; and the rights of the child.
(¶13.)FGM is also a violation of a person’s right to the highest attainable standard of health, as
it damages healthy genital tissue and can lead to severe consequences for girls’ and women's
physical and mental health. It is on the basis of these human rights violations that many
countries have now passed legal sanctions against FGM.
(¶14.)Communities practising FGM generally consider the practice as an important part of their
cultural tradition and social requirements, and also part of their religious duty.This practice
46
WHO Study Group on Female Genital Mutilation and Obstetric Outcome, 2006
47
WHO Study Group on Female Genital Mutilation and Obstetric Outcome, 2006
48
Resolution A/RES/48/1. Declaration on the Elimination of Violence against
Women, In: 48th Session of United Nations General Assembly, 23 February 1995.
27
cannot continue its discriminatory practice inspite being violation of constitutional and human
rights under the grab of religious freedom.
(¶15.)While the right to participate in cultural life and to freedom of religion are protected
beliefs may not supersede the protection of fundamental rights and freedoms of people.
Therefore, the right to practise religious beliefs and social and cultural traditions cannot be
evoked to justify FGM.
(¶16.)After the effect of the Constitution of India, “dignity of women” under Article 51A(e) is
an essential ingredient of constitutional morality.In Acharya Jagadishwarananda Avadhuta49
(supra) to submit that in order to claim protection of the doctrine of essential religious practices,
the practice to perform FGM must be shown by the respondents to be so fundamental to the
religious belief without which the religion will not survive. On the contrary, no scriptural
evidence has been led by the respondents herein to demonstrate that the practice of FGM is an
essential part of their religion. It can be further stated that the exclusionary practice is as just a
usage and not a religious custom or essential religious practice.
(¶17.)In Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and
others (supra), being the second Ananda Marga case, the Court has elaborately discussed the
true nature of an essential practice and has further laid down the test for determining whether
a certain practice can be characterized as essential to a particular religion in order to guarantee
protection under the Constitution.In the absence of any scriptural or textual evidence, we cannot
accord to the exclusionary practice followed at Dohra community. By banning FGM, it
wouldn’t be imagined that the nature of Dohra Community would be fundamentally altered or
changed in any manner
(¶18.)Nobody can say that essential part or practice of one's religion has changed from a
particular date or by an event. Such alterable parts or practices are definitely not the 'core' of
religion where the belief is based and religion is founded upon. It could only be treated as mere
embellishments to the non-essential part or practices. This view of ours is further substantiated
by the fact that where a practice changes with the efflux of time, such a practice cannot, in view
of the law laid down in Commissioner of Police and others (supra), be regarded as a core upon
which a religion is formed. There has to be unhindered continuity in a practice for it to attain
the status of essential practice. Therefore, there seems to be that FGM doesn’t form the essential
part of the communities existence, in view of this, it cannot be treated as an essential practice.
49
1984 AIR 512,1984 SCR (1) 447
28
D. Petitioner have an enforceable legal and fundamental right
(¶16.)The existence of a right is the foundation of a petition under Art. 32. The right alleged
may be a fundamental right or an ordinary legal right. Legal Right means legally enforceable
right or an ascertainable claim. It was held by the apex court in the case of Jagadish Saran v.
Union of India, that, “it is also well-settled that interpretation of the Constitution of India or
statues would change from time to time. Being a living organ, it is ongoing and with the passage
of time, law must change. New rights may have to be found out within the constitutional
scheme, horizons of constitutional law are expanding.” It is humbly submitted before the
Hon’ble Court that the Petitioners legal right flows from the obligation that the Respondent
has Obligation is a corollary to duty and duty is a corollary to right.
(¶17.)Obligation in its popular sense is merely a synonym for duty. When the law recognizes
an act as a duty, it commonly enforces the performance of it, or punishes the disregard of it.
Every duty must be a duty towards some person or persons, in whom therefore, a correlative
right is vested. There can therefore be no duty unless there is someone to whom it is due; there
can be no right unless there is someone from whom it is claimed; and there can be no wrong
unless there is someone who is wronged. Thus, there cannot be a duty without a corresponding
right.
(¶18.)Children are vested with special human rights that are necessary to protect them during
their minority age50.General rights operative in childhood include the right to security of the
person, to freedom from inhuman, cruel, or degrading treatment, and the right to special
protection during childhood. Particular human rights of children include, among other rights,
the right to life, the right to a name, the right to express his views in matters concerning the
child, the right to freedom of thought, conscience and religion, the right to health care, the right
to protection from economic and sexual exploitation, and the right to education51.
(¶19.) FGM is a global issue where in 2016; UNICEF reported that over 200 million women
and girls are currently living with FGM. 193 Countries agreed the sustainable development
goals to work to eliminate FGM by 2030. Equality now has been at the forefront of global
efforts to eliminate FGM for over 2 decades. Law against FGM protect a girls right not to be
cut and a way to seek justice if they are, and also act as a deterrent to the practice. Today, many
countries where FGM is practiced have banned the practice and laws against the practice.
(¶20.) While legal measures alone often lead to clandestine procedures or initial defiance, a
legal framework in support of women’s and girls’ human rights is an important component. A
50
UNICEF, Convention on the Rights of the Child, 29 November 2005
51
International Covenant on Civil and Political Rights; 16 December 1966 [Retrieved 16 October 2015].
29
law along with administrative measures of promoting awareness, sensitising the community on
the subject and grass roots campaigning for social reform will help us eventually root out the
practice of FGM.A framework that includes preventive measures to promote abandonment, as
well as punitive measures for those who engage in the practice, would show to have positive
effect when FGM is declared to be illegal. Further, the counsel seeks direction to make FGM
an offence on which the enforcement agencies can take cognisance making the offence “non-
compoundable and non-bailable” with provisions of harsh punishment.
Genital Mutilation should be declared illegal and be made punishable offence in Zindia
30
PRAYER
Wherefore in the light of the Issues Raised, Argument Advanced and Authorities Cited, the
Hon’ble Court may be pleased to:
1. Declare that the practice of Female Genital Mutilation (FGM) or ‘ Khatna’ is in violation
of the principles of UDHR, Convention on Rights of Child and the United Nations General
Assembly resolution regarding rights of the Child banning FGM.
2.The practice of FGM is in violation of Fundamental Rights including Article 14 and 21 and
Article 39 of Constitution of India
3.The practice of FGM is a punishable offence in Indian Penal Code, 1860
4. The practice should be declared as illegal and be made a punishable offence in Zindia
AND/OR
Pass any other order, direction or relief that it deems fit in the interest of Justice,
Equity and Good Conscience.
For this act of kindness, the Appellants shall duty bound forever
pray.
SD/-
Counsel for the Petitioner/-
31
32
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ITM II NATIONAL MOOT COURT COMPETITION - 2019

MEMORIAL FOR THE PETITIONER

BEFORE THE HON’BLE

ORIGINAL WRIT JURISDICTION

PUBLIC INTEREST LITIGATION

W.P. (CIVIL) NO. ___ OF 2019

UNDER ARTICLE 32 OF THE CONSTITUTION OF ZINDIA

In the matter of Article 14 and Article 21

Union of Zindia & Others………....………………….......…………………RESPONDENTS

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

AIR All India Reporter

CEDAW Convention on the Elimination of All Forms of

DEVW Declaration on Elimination of Violence against Women

ICCPR International Convention on Civil and Political Rights

ICESCR International Convention on Economic, Social and

SCC Supreme Court Cases

UOI Union of India

UDHR Universal Declaration for Human

u/s. Under Section

 [1](2008 (3) SCC 1)

1. Basu D.D , Constitution of India ,14th edition 2009, LexisNexis, Butterworths

1. Goa Children’s Act, 2003, India

1. Convention on the Elimination of All Forms of Discrimination against Women

Article 32 of the Constitution of Zindia which reads as follows:

“32. Remedies for enforcement of rights conferred by this Part-

Whether the practice of of Female Genital Mutilation (FGM) or ‘Khatna’ is in violation

Whether the practice of FGM is in violation of Fundamental Rights including Article 14

Whether the practice of Female Genital Mutilation (FGM) or ‘Khatna’ is in violation of

Whether the practice of FGM is in violation of Fundamental Rights including Article 14

I.THE PRACTICE OF FEMALE GENITAL MUTILATION (FGM) OR‘KHATNA’ IS

A.Zindia is bound to follow International Obligations

(¶6.)The right to be free from gender discrimination is guaranteed in numerous international

C. Zindia is the appropriate forum to enforce the legal right

II. THE PRACTICE OF FGM IS IN VIOLATION OF FUNDAMENTAL RIGHTS

A. Violation of Personal life and liberty of individuals

B.Permanent Disfiguration of body

III. THE PRACTICE OF FGM ATTRACTS PUNISHMENT UNDER THE

IV. THE PRACTICE SHOULD BE DECLARED AS ILLEGAL AND BE MADE A

A. FGM is a self-enforcing social convention –social norm

B. Long – term health complications

C.Female Genital Mutilation discriminatory practice

D. Petitioner have an enforceable legal and fundamental right

Hon’ble Court may be pleased to:

Assembly resolution regarding rights of the Child banning FGM.

Article 39 of Constitution of India

3.The practice of FGM is a punishable offence in Indian Penal Code, 1860

Equity and Good Conscience.

Counsel for the Petitioner/-

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