This article is written by Charvi Devprakash.
‘When men are oppressed, it’s a tragedy. When women are oppressed, it’s tradition’
-Letty Cottin Pogrebin
Table of Contents
TW: Gender based sexual violence
Philomena, a seven year old girl living in Kenya was elated, when she learnt that she would also go to school with her brother. A few months later, Philomena was told by her mother that the next day they were going to do something very special. Philomena was both nervous and excited as she had heard stories of special things happening to girls of her age but was not sure what the surprise was going to be[i]. What followed was an absolutely harrowing and an inexplicably traumatic experience on the little girl’s body and mind. Her aunt and grandmother held her limbs tightly while another woman cut her between the legs. Philomena fainted. When she woke up, she was lying lifelessly, her little legs tied up closely together to stop the copious bleeding.
This isn’t the story of just one Philomena, but the shrieks of agony of millions of Philomena, who lay there, silenced and completely defenceless, hegemonized by the society that is predominantly blinded by faith. This article aims at rendering a voice to those vulnerable girls who have fallen prey to this callous and barbaric ‘cultural violence’ of female genital mutilation/cutting.
What is female genital mutilation/ cutting
Female genital mutilation/cutting (hereinafter referred to as FGM/C) is ‘the practice comprising 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’, as defined by the World Health Organisation.
The World Health Organisation has classified FGM/C into 4 types as follows:
Type 1 Clitorectomy: This is the partial or total removal of the clitoral glans (the external and visible part of the clitoris, which is a sensitive part of the female genitals), and/or the prepuce/ clitoral hood (the fold of skin surrounding the clitoral glans).
Type 2 Excision: This is the partial or total removal of the clitoral glans and the labia minora (the inner folds of the vulva), with or without removal of the labia majora (the outer folds of skin of the vulva).
Type 3: Infibulation: This is the narrowing of the vaginal opening through the creation of a covering seal. The seal is formed by cutting and repositioning the labia minora, or labia majora, sometimes through stitching, with or without removal of the clitoral prepuce/clitoral hood and glans (Type I FGM).
Type 4: This includes all other harmful procedures to the female genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterizing the genital area.[ii]
It is indispensable to understand the different terminologies used to refer to FGM/C. Currently, the UN uses the term “female genital mutilation’, including the WHO, to identify this ritual. Prior to this, FGM was called female circumcision, thereby indicating its similarity to male circumcision. However, this was and is a very misleading concept as there lies a huge difference between FGM/C and male circumcision. While the process of male circumcision involves removing only part of the foreskin of the penis without impairing its sexual function, FGM/C as aforementioned is of four types, all leading to sexual impairment of the vagina. Therefore, there lies a huge difference between circumcision and mutilation, which the term female circumcision is unable to justify, which is why there arises a need for a better, more accurate term to describe the process. This is where the term Female Genital Mutilation gained momentum and was popularised. Although, FGM/C being the most preferred term, even for many NGOs in Africa that advocate the eradication of such age-old traditions, many women who have undergone this barbarism choose to not be called “mutilated”, which highlights the long term trauma suffered by the victims. Therefore, in order to respect the feelings of these victims, Female Genital Mutilation can be interchangeable used as Female Genital Cutting.
FGM/C: Where and why
According to many reports of the United Nations, it is evident that FGM/C is predominantly prevalent in the African and the Middle eastern countries, where majority of the women have undergone this ritual. It is also practiced in some Asian and Latin American countries. Out of the 29 countries in Africa and Middle East, 26 countries have passed legislation to eradicate this extreme and illegal ‘tradition’. One of the countries to practice this tradition is shockingly, India. The local perspective on this issue will be detailed later on.
While many still attempt to justify this purposeless practice, many organisations have outright called out this ritual as a premeditated, murderous and an extremely irrational ‘custom’. The same has been substantiated by many a research that indicate that FGM/C has no health benefits whatsoever. Then why is this horrific custom still in practice?
According to the WHO, FGM/C is majorly practiced for cultural and social factors. FGM/C is a systemic practice where people find the need to conform to these social norms in order to be, acceptable which is the fundamental underlying reason for the continuum of this practice. This practice is fuelled by the normalisation of customary violence against women, where girls and women are expected to be brought up in a specific way. It is associated with the cultural ideals of what amounts to femininity and modesty[iii]. Similar to other cultural violence, even this custom isn’t prescribed in any of the religious manuscripts. However, the practitioners and the leaders of religion believe and propagate that this atrocity is backed by religion. It is simply the superstitions of the people who lack the knowledge and the awareness of the repercussions of this offence.
Some of the other reasons that could be traced here is that this custom is followed to ‘preserve’ the virginity of a woman until she is married off. It is also carried out to ensure that a woman’s sexual desires are silenced and to prevent promiscuity.
Indian context
We are often made to believe that a mindless practice such as this is carried out in far-off places like Africa among the tribal community. But the shocking truth is that this unfortunate practice happens in the heart of India—Mumbai, where untrained midwives continue this practice, scarring the young minds and bodies of the Dawoodi Bohra community, a Shia sub sect of Islam[iv]. Being one of the darkest secrets, ‘Khatna’ as called by the Bohra community, or FGM/C is even today lawlessly carried out by the Bohra community. India has been one of the many countries who have since ages subjected women and children to cruelty, in the name of tradition. The Bohra girls are also a victim of one such tradition, a tradition nowhere in the holy books. Those who practice this unquestioningly, fail to understand the dichotomy between the regressive practice in an otherwise progressive community[v].
The Bohra community is spread over Pakistan, Yemen, East Africa, and some strewn parts of America and Australia[vi]. Sadly, India is becoming a hub for FGM/C due to the legal actions taken against the practice in Australia and the US. However, India still fails to recognise and address the existence of this practice. For instance, in 2017, the WCD Ministry spearheaded by Ms. Maneka Gandhi had denied the existence of FGM/C by claiming that there was no substantive data. Therefore there are no specific laws against FGM/C.
However, provisions like Sections 319 to 326 of the Indian Penal Code 1860[vii] and Section 3 of the Protection of Children from Sexual Offences Act, 2012[viii], are still applicable. Additionally, to talk of precedents, it has been established in the past that ‘penetration’ in sexual offences does not necessarily have to mean complete penetration. The term ‘vagina’ includes labia majora in Explanation 1 of Sec 375 of the Indian Penal Code. FGM/C can be covered under Section 3 of the POCSO Act read with Explanation 1 of Section 375 of the Indian Penal Code[ix]. Yet, the tradition continues, unrestrained and ungoverned.
Adding on, Article 15 of the Indian Constitution[x] ensures the protection of people from discrimination on the basis of gender, caste, race, place of birth and religion. FGM/C is violative of this Article as it promotes the systemic violence against girls and women of a particular sect. In a recent plea[xi] filed to ban FGM/C in July 2018, senior advocate Abhishek Manu Singhvi representing the Dawoodi Bohra Women for Religious Freedom had argued that the practice is an essential part of the religion and is protected under Articles 25 and 26 of the Constitution of India 1950[xii].
The Supreme Court, however, ruled otherwise holding that “It is violative of Article 21 of the Constitution as it puts the female child to the trauma of female genital mutilation,[xiii]“. The case was decided by a constitutional bench comprising Chief Justice Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud.
FGM/C through the lens of a global perspective
As aforementioned, FGM/C is prevalent across all continents, and isn’t confined to Africa alone. However, different countries are coming up with effective laws to tackle this issue of international significance. While many countries do not have specific laws banning this tradition, the penal provisions may be applicable in the same case. For instance India does not have specific laws, nor has it banned the practice of FGM/C, however, it is recognised as a criminal offence and child abuse, and the perpetrators maybe sentenced up to a maximum of seven years. While many countries in Africa still have no laws to administer this tradition, some have passed specific laws to eradicate FGM/C. Cameroon, Congo, Guinea Bissau are some of the countries in Africa that do not have specific laws to deal with FGM/C but the penal provisions are applicable. Recently Australia, USA and Sudan have banned this practice.
To talk of the legal position of countries with regards to FGM/C, Kenya has criminalised this offence with an imprisonment of a maximum of three years with or without a fine of $2000 USD, by passing the legislation, Prohibition of FGM Act, 2011. Since the enactment of these laws in 2011, the practice of FGM/C has witnessed a steady decline. However, Kenya has remained unsuccessful in curbing this practice across borders. Though the enactment prohibits cross border FGM, the Kenyan laws are unable to ensure complete eradication of this ‘custom’.
In countries like Mauritania and Liberia, though FGM has been criminalised, the punishments are only for the perpetrators of victims below the age of 18, thereby rendering the law useless. Furthermore, there are no specific laws and punishments for these offences. The punishments are decided on a case to case basis. These are some of the examples of the position of law with respect to FGM/C across the globe.
Moving on, FGM/C is also a human rights[xiv] violation as given by the various provisions under the UDHR. Right to health, right to be free from violence, to life and physical integrity and to be free from cruel, inhuman, and degrading treatment is infringed. Some international covenants like the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW)[xv], United Nations Convention on the Rights of the Child, 1989 (UNCRC)[xvi], International Convention on Civil and Political Rights (ICCPR)[xvii] and the International Convention on Economic, Social and Cultural Rights (ICESCR)[xviii] ensure the prohibition of gender-based discrimination. All countries having signed these conventions must ensure that they respect the proviso in these treaties and work towards doing away with such social evils.
Why should FGM/C be criminalised
From eons, women across cultures and continents have been victims of a wide range of discriminatory treatment and oppression that is propagated under the veil of tradition, social norms and ultimately faith. FGM/C is one such brutal practices performed on young impressionable minds and bodies that is irreparable.
FGM/C has long lasting psychological and physical impacts. This practice is primarily invalid due to the fact that it snatches away a human being’s right to bodily autonomy. A practice, so savage, is coerced upon young girls, as young as one, making them a prey of such assault.
Women who have been subjected to this cruelty have also experienced poor sexual and reproductive health. Due to this damage, women face long-lasting physical impairments. Chronic genital infections, chronic reproductive tract infections, urinary tract infections, vaginal problem, menstrual problems, Human Immunodeficiency Virus (HIV), childbirth complications, Obstetric Fistula, perinatal risks are a few health complications among many more. The mental trauma caused by this insufferable pain is much more grave. This practice has led to post traumatic stress disorder (PTSD), depression, suicidal tendencies, anxiety disorders, phobias and so on. And this trauma lives on for the rest of their lives, making their lives miserable. FGM/C is immoral, unethical and should therefore be criminalised. It needs to stop before more children are sacrificed to this appalling and atrocious practice under the garb of tradition.
References
[i] Anne Firth Murray, From Outrage to Courage 39-40 (Common Courage Press, 2008)
[ii] Female Genital Mutilation, World Health Organisation, (02-03-2020), https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation
[iii] Ibid
[iv] Sumanti Sen, 4.1 Million Girls At Risk Of Female Genital Mutilation, A Practice That Scars Women For Life, The Logical Indian, (Feb 7 2020 4:21 PM) https://thelogicalindian.com/story-feed/awareness/zero-tolerance-fgm-19636?infinitescroll=1
[v] Harinder Baweja, India’s Dark Secret, The Hindustan Times, https://www.hindustantimes.com/static/fgm-indias-dark-secret/
[vi] Supra note 4
[vii] The Indian Penal Code, 1860 Act No. 45 of 1860
[viii] Protection of Children from Sexual Offences Act, 2012, India
[ix] Guide to Eliminating the FGM Practice in India, Lawyers Collective, http://www.lawyerscollective.org/wp-content/uploads/2012/07/Female-Genital-Mutilation-A-guide-to-eliminating-the-FGM-practice-in-India.pdf
[x] The Constitution of India, 1950
[xi] Sunita Arora v. Union of India
[xii] Supra note 9
[xiii] Female Genital Mutilation Violates Constitutional Rights: Supreme Court, NDTV, (July 31, 2018 07:26 am) https://www.ndtv.com/india-news/female-genital-mutilation-violative-of-constitutional-rights-supreme-court-1892433
[xiv] Universal Declaration of Human Rights, 1948
[xv] Article 1, 2, 5(a) Convention on the Elimination of all forms of Discrimination against Women, 1979
[xvi] Article 3 and 24, United Nations Convention on the Rights of the Child, 1989
[xvii] Article 2, 3 and 26, International Convention on Civil and Political Rights
[xviii] Article 2 and 3, International Convention on Economic, Social and Cultural Rights
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