This article has been written by Ranjeet Saw, pursuing a Diploma in International Contract Negotiation, Drafting and Enforcement and have been edited by Oishika Banerji (Team LawSikho).
It has been published by Rachit Garg.
Table of Contents
Introduction
A practice of cutting, removing, pricking, and sometimes sewing up the external female genitalia for non-medical reasons, primarily without the consent of the girl child is termed Female Genital Mutilation (FGM). Standing without rationality, the practice is validated by reasons of purifying a girl child, acceptance of her family in the community, proper marriage offers for her in the future and others likewise. UNICEF in one of its 2015 reports observed that FGM has developed into a powerful social norm which while in one hand makes families consciously commit wrong to their girl child, on the other makes families view relevance in marriage prospects and family status instead of the welfare of the girl child. Practice is concentrated in developing and under-developed countries, some of the well-known names are African countries from the Atlantic coast to the Horn of Africa, Middle East countries such as Iraq and Yemen, and also several countries in Asia such as India and Indonesia. Over 200 million girls and women have been subjected to this cruel practice, and every year, another 3 million are at risk. FGM not only causes physical harm but also psychological and emotional trauma. Girls and women who have undergone FGM often experience pain, bleeding, and a range of health complications, such as infections, infertility, and even death. They also suffer the pain of betrayal by their own mothers or grandmothers, who often lure them into undergoing FGM. The practice also has long-term effects on their sexual and reproductive health, causing difficulties during urination, menstruation, sexual intercourse, and childbirth. This article discusses FMG in both global and Indian contexts.
The global context of FMG
Recognized as a violation of human rights, FMG while on one hand increases the risk of health complications, on the other, it has become a recognizable poignant custom across the globe. FGM is a global issue that affects millions of girls and women worldwide. The practice is not limited to any one community or country, and it is found in many cultures and regions around the world. Performed majorly in developing countries, with FMG victims on the rise for the fact that a three-pronged platform is produced as a consequence of the FMG procedure, which is difficult to eradicate. For families to be accepted by communities, FMG developed with deep-rooted sociological impact on females made to undergo the same, thereby showcasing a cycle of cause and effect resulting from societal pressure. Pressure on families by communities is the cause of the effect which is conducting FMG on females.
As has been mentioned previously as well, while FGM has spread its wings in different regions of Africa with statistics rising to 92 million girls, Egypt has been in the limelight with over 87% of the girls being restricted from availing their human rights by means of FGM. It is noteworthy to mention that evidence from the Egyptian mummies has revealed that the practice of FGM dates back to 5000 years, which in itself raises the very question of the treatment of females over the eras with no progressive change in the same. Both Somalia and Yemen alongside countries in Asia and Europe have been named in several reports and research to have made FGM a prevalent custom in the name of religion.
WHO estimated that between 100 and 140 million girls and women across the globe are facing the grievous consequence of FGM in the present date. With three million girls being subject to this ill practice, it is devasting to note that the majority of them are underage to undergo this hazardous procedure. Necessarily termed as a gross violation of the fundamental well-being of females, FGM is the consequence of a complex mixture of socio-cultural perspectives of the majoritarian society which are backed by religious justification across Christian, Jewish, Muslim and certain indigenous African groups.
Female Genital Mutilation in context to India
When it comes to India, FGM have had not seen much daylight when it comes to police reporting or media highlights. But, this ipso facto does not limit us to realise that the ill practice has its roots embedded in this country which has been the home to several religions over the ages. Websites in Google majorly state that when it comes to India, the practice is restricted to some of Islamic groups. Recognised by the name Dawoodi Bohra community, a sub-sect of Shia Muslims in India, FGM is generally said to be performed by them. Named ‘Khatna or Khafd, in place of FGM, the practice makes girls aged 6-7 years as its subject with the aim to remove the clitoral hood which is considered to be a hurdle in the step of attaining purity, by the community. To further state, Daim al-Islam, which is the religious text followed by the Dawoodi Bohra community, is considered to be the source of the practice which also endorses it.
According to a report by the United Nations Children’s Fund (UNICEF), the prevalence of FGM in India is very low, with only 0.3% of women aged 15 to 49 have undergone the procedure. The practice is mostly concentrated in certain communities in the states of Maharashtra, Gujarat and Rajasthan, and is performed by traditional practitioners. India has over 2 million population of Bohra communities residing in the country. Further according to research done by ‘we speak out’, at least 80% of the Bohra community population is practising FGM.
The legality of FGM in India
Currently, India does not expressly have any legislation dealing specifically with FGM which can be viewed both as a boon and a bane. Former because it shows the lesser prevalence of the inhuman activity when it comes to India and the latter because even if the ill custom is prevalent, there lies no strong hand to curb it.
To begin with, the Indian Constitution, considered to be the mother of all legislations prevalent in India, has recognised both constitutional and legal rights for females to be empowered and exercise choices concerning their lives all by themselves. While the constitutional rights are expressly mentioned in the Indian Constitution, legal rights are provided in several enabling legislations, the source of which is the Constitution. Article 14 read with Article 21 of the Indian Constitution discusses the right to equality in terms of living a dignified life with personal liberty, irrespective of gender. Article 21 is inclusive of the recognised right of privacy and bodily integrity, owing to which, every female has a right to make decisions in relation to her body. Adding on to the same, Article 15 of the Indian Constitution expressly mentions that the state shall not discriminate against any Indian citizen on grounds of gender. Clause 3 of the same Article empowers the states to make special provisions for women thereby making room for affirmative discrimination in favour of women. Article 23(1) recognizes the right against exploitation and prohibits trafficking against human beings inclusive of women.
While these are collectively referred to as Fundamental Rights enforced by the Indian judiciary, Part IV of the Indian Constitution that discusses Directive Principles of State Policy are equally relevant when it comes to safeguarding women’s interests. Article 39(e) of the Indian Constitution vests responsibility on the state to secure for men and women equally the right to an adequate means of livelihood, which stands very much in line with the essence of Article 14 of the Indian Constitution. It is notable to mention Article 51-A(e) which comes under the broad banner of Fundamental Duties under the Constitution of India provides that it shall be the duty of every citizen of democratic India to renounce practices that stand as derogatory to the very dignity of women. Going by the same, FGM is not only derogatory but against the fundamental principles of the Indian Constitution as it strikes as a detriment towards the health of the females of the nation.
The offence of FGM can be solely categorised as a criminal offence and therefore several provisions of the Indian Penal Code, 1860 (IPC) namely those dealing with offences such a hurt (Section 324), grievous hurt (Section 326) and sexual assault, can be also used for the purpose of FGM. India is home to the Prevention of Children from Sexual Offences Act, 2012 (POCSO Act) which specifically aims to protect children from getting stigmatised owing to sexual activities in relation to them. Section 3 of the social legislation criminalizes the offence of penetrative sexual assault carried out on any child. To further elaborate, the term penetrative sexual assault signifies the insertion of any kind of object into the vagina of a girl child, thereby proving to be harmful for such a child. Although these legislations are not specific in nature when it comes to our discussion, they do hold significance until legislation solely focusing on FMG comes into the picture.
The constitutional validity of FGM in the Indian context
The practice of FGM is often associated with rituals that mark the transition to adulthood and womanhood in certain communities. The Indian Constitution guarantees the rights to freedom of religion under Article 25 and the administration of religious affairs under Article 26, but these rights are subject to certain limitations such as the prohibition of discrimination on the basis of sex, the right to equality and the constraint of public order, health, and morality.
In the 2014 case of Manoj Narula v. Union of India, the Supreme Court defined the term “morality” as it pertains to the Constitution as “constitutional morality.” This refers to the principles outlined in the Constitution and a commitment to upholding them. As has been discussed earlier, the very fundamentals of the Constitution serve the purpose of safeguarding female rights thereby vesting duties on both the state and individual citizens. The ratio of the 2014 case not only upholds constitutional virtues but also makes way for the same to be implemented so as to avoid infringement of any recognised right of individuals irrespective of gender. The practice of FGM in India will prove to be against Fundamental Rights, Duties and Directive Principles of States Policy which will be ultra vires the Indian Constitution. Any legislation therefore which if framed in the future surrounding FMG has to ipso facto abide by the Indian Constitution to live up to the essence of the same. Although this judgement does not directly focus on our discussed concept, it proves to be progressive for serving the measurement scale of any legislation framed for curbing FMG in India’s respect.
The expert provided hereunder voiced by the current Chief Justice of India, Justice DY Chandrachud in regard to the case of Indian Young Lawyers Association v. State of Kerala (2018), familiarly known as the Sabarimala judgement, defines the concept of constitutional morality with the essence to restrict prevalent customs devoid of constitutional sanctions,
“Constitutional morality must have a value of permanence which is not subject to the fleeting fancies of every time and age… Once these postulates [of human liberty, equality, fraternity, and justice] are accepted, the necessary consequence is that freedom of religion and, likewise, the freedom to manage the affairs of a religious denomination is subject to and must yield to these fundamental notions of constitutional morality.”
Furthermore, in the 1997 case of Sri Adi Vishweshwara of Kashi Vishwanath Temple, Varanasi v. State of Uttar Pradesh, the Supreme Court emphasised that religious denominations and sects are bound by the constitutional goals and must comply with the laws, with the aim of promoting social peace, order, stability, and progress within an equal society, as well as eradicating social ills. This judgement as well like the previous one has
It is notable to mention that the recently conducted 41st session of the United Nations Human Rights Council’s Universal Periodic Review with the positioning in Geneva, which was responsible for examining fourteen states inclusive of India came out with a prime recommendation for the Indian government. The diplomatic mission of the Central American country, Costa Rica was the one to progressively suggest framing a national plan to criminalise the very concept of FGM when it comes to India.
Role of Indian courts in recognizing FGM
In 2018, the Supreme Court of India, in response to the writ petition filed by advocate Sunita Tiwari under Article 32 of the Indian Constitution, issued a notice to the Central Government, the National Commission for Women (NCW), and the National Human Rights Commission (NHRC) to take steps to prohibit FGM. The writ petition alongside seeking relief based its crux on banning the controversial practice of FMG or Khatna, Female Circumcision (FC) or Khafd. As a support to the writ petition, the UN Convention on the Rights of the Child and the Universal Declaration of Human Rights was referred by the petitioner alongside presenting arguments weighing more towards violation of Article 21 of the Indian Constitution. With a pleading being the insertion of provisions concerning FGM in the IPC, the petitioner prayed before the Apex Court to issue directions to the Director Generals of State Police for taking requisite measures towards such inhuman acts. It is interesting to note that the counter affidavit filed as an opposition to the writ petition approached the Court with a contention under Article 26 of the Constitution. The defendants had cited the discussed practice to be falsely termed as FMG, for it was merely a religious tradition followed for over 1400 years. On November 14, 2019, the Apex Court after prolonged silence in this matter mentioned that the case will be referred to a seven-judge Constitution bench.
In 2021, a sessions court in Mumbai convicted a Dawoodi Bohra Muslim cleric for performing FGM on two minor girls along with a retired nurse, the mother of the two girls, and sentenced them to imprisonment of fifteen months under provisions of IPC related to causing hurt and intentional insult with intent to provoke breach of the peace, along with provisions of the POCSO Act. It was the first conviction in the country for FGM. The series of events took place between 2009 and 2012 when both girls aged seven, classed as type one or four, were made to go through a partial cut of their clitorises without a scar being left showing the same. While the girls were presented before the court of law, one of them explained the scenario they were made to go through which involved them lying naked on the bed imagining themselves to be “princesses in a garden”. The conviction was a successful consequence of phone tapping and other surveillance means adopted by the police force to record a concocting story cooked up between the mother and the members of the community.
It’s worth noting that the judiciary, has recognized the practice of FGM as a violation of the rights of the girl child and has urged the government to take steps to prevent it and create awareness about its harmful effects. It also highlights the importance of having specific laws criminalizing FGM to effectively eradicate it.
Other perspectives in relation to FGM
It is important to consider multiple perspectives when discussing the issue of FGM. It’s worth mentioning that there are different reasons why people practice FGM and it’s not only limited to the idea of religious purity. For example, some people argue that FGM is an important cultural tradition that has been passed down for generations, and that it is a way to ensure that girls and women are respected and valued in their communities. They argue that it is a way to preserve their culture and identity.
On the other hand, there are also many organizations working to combat FGM, such as the World Health Organization (WHO), UNICEF, and the United Nations Population Fund (UNFPA), that provide education, awareness-raising campaigns, health services, and support to girls and women who have undergone FGM, as well as those at risk. They also provide guidelines and recommendations for governments and communities to help eradicate FGM. It’s also important to consider the perspectives of FGM survivors and victims, who often face physical and emotional consequences of the practice and many of them advocate against it. They also share their stories and experiences to raise awareness and support others who are going through the same. By considering these different perspectives, we can gain a more complete understanding of the issue of FGM, and develop more effective strategies to combat it. It’s important to remember that FGM is a complex issue that cannot be solved with a one-size-fits-all approach. It requires a multifaceted response that takes into account the cultural, social, and economic factors that contribute to its continuation.
Steps to curb FGM
There are several measures and policies that governments can implement to curb FGM:
· Education and awareness campaigns: Governments can invest in education and awareness campaigns to educate the public about the harmful effects of FGM and the legal consequences of performing it.
· Laws and regulations: Governments can pass laws and regulations that criminalize FGM and provide penalties for those who perform it.
· Health services: Governments can ensure that health services are accessible and affordable for women who have been subjected to FGM and provide training for health professionals on how to provide appropriate care for these women.
· Support for survivors: Governments can provide support for survivors of FGM, including counselling, legal aid, and economic assistance.
· Working with community leaders: Governments can work with community leaders, including religious leaders, to raise awareness about the harms of FGM and to encourage them to speak out against the practice.
· International cooperation: Governments can work with international organizations and other governments to address FGM on a global scale.
· Monitoring and evaluation: Governments can monitor and evaluate the effectiveness of their policies and programs to curb FGM and make necessary adjustments.
Conclusion
In conclusion, it is essential to state that FGM is a harmful practice that affects millions of girls and women worldwide. It is a brutal violation of human rights that is rooted in the belief that girls and women must be controlled and punished for their sexuality. The practice is not limited to any one community or country, and it is a global issue that requires a coordinated response. Eliminating FGM requires a comprehensive approach that includes legal and policy measures, as well as community-based interventions. Education and awareness-raising campaigns are crucial in changing attitudes and behaviours towards FGM. Empowering girls and women through education and economic opportunities, and giving them a voice in decision-making processes that affect their lives, is also essential in ending this practice. It is important to remember that FGM is not just a problem for the affected girls and women, but for society as a whole. We must all work together to end this cruel practice and ensure that all girls and women have the right to live a life free from violence and discrimination. Only then can we truly say that we have succeeded in creating a just and equitable society for all.
References
- https://www.unfpa.org/news/5-ways-female-genital-mutilation-undermines-health-women-and-girls.
- https://www.un.org/en/observances/female-genital-mutilation-day.
- https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation.
- https://edition.cnn.com/2017/04/22/health/detroit-genital-mutilation-charges/index.htm.l
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