mutilation
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This article has been written by Shikha Lakra.

Female Genital Mutilation (FGM), comprises of procedures involving partial or total removal of the external female genitalia or other injury to the female genital organs for non-medical reasons. While it is mainly carried out on girls between the ages of 1 to 15 years, occasionally, adult and married women are also subjected to this procedure.

Despite the global and national efforts to promote abandonment of the practice, FGM remains widespread in different parts of the world. Over 200 millions girls and women have undergone FGM. The practice is most common in 30 countries across Africa and in some countries in Asia and the Latin America and among migrants from these areas.[1]

In India this practise is common amongst the Bohra community, where the ritual is referred to as”Khatna” or “Khafz/Khafd”. Khatna essentially involves cutting the tip of a girls clitoris when she is 6-7 years old[2]. It is performed by Mullanis- women who have a semi- religious standing, by traditional cutter or by any women with some experience. An online survey carried out amongst Bohra women by Sahiyo, an NGO, suggests that 80% of the 400 respondents have been through the process of khatna.[3] 

There are various socio-cultural reasons for FGM, which vary from region to region. Underlying all these reasons, however, is deep rooted discrimination against women and girls. The various justifications that have been advanced for FGM include religious dicta, an aid to female hygiene and a tool to control or reduce female sexuality. In many, places the practice is often linked to a ritual marking the coming of age and initiation to womanhood.[4] In a study conducted amongst women of the Dawoodi Bohra community, it was found that the religious requirements, traditions and customs and the wish to curb the girl’s sexuality were the main reasons for the flourishing practice.

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FGM, in many instances, is also perceived as a way to cleanse a girl from impure thoughts and desire. The perception is that that a girl who is circumcised does not get as aroused as one who is in ‘qalfa’ (meaning with a clitoral hood) or one whose clitoris is intact. Sexual desire in girls and women is viewed as something from which they need ‘protection’. This perceived protection extends beyond protection of the girl herself to the protection of the whole family’s reputation[5]. In many place, the belief that the clitoral head is ‘unwanted skin’ or that it is a ‘source of sin’, which will make them stray out of their marriages are reasons that lie at the heart of a practice that predates Islam but thrives amongst Bohras. Some women also referred to the clitoral hood as ‘haraam ki boti’ or immoral lump of flesh.[6]

FGM has short term and long term ill effects on the health and psychological well-being of the victims. The severity of the cutting/mutilation directly corresponds to the harm suffered. Since anaesthesia is rarely used[7] on the victim during the procedure, there is extreme pain. The other short term health risks are excessive bleeding, swelling and inflammation in the genital area, infection, urinary problems and in some extreme cases, even death. The long term consequences include chronic genital infections , recurring urinary tract infection ,painful sexual intercourse, complication during pregnancy, labour and delivery of the child , prenatal risks and debilitating psychological consequences like post traumatic stress disorder (ptsd) and depression . FGM thus affects the health and social development of girls and women .FGM unlike male circumcision does not have beneficial health effects.

International view

Due to the nature of FGM, it is a violation of the human rights of women and children, in infringes on the right to life and physical integrity[8], the right to health[9] and the right to freedom from torture, cruel and unusual treatment, and violence[10]. Since FGM is mostly 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[11](UNCRC) and violates the guarantee of non-discrimination. 

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.”[12]

Unlike male circumcision that has beneficial health consequences, FGM 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 women undergoes FGM, she is a victim of discrimination based on sex that compromises the recognition and enjoyment of her fundamental rights and liberties.[13]

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[14]. In extreme cases of FGM, the procedure also sometimes leads to death or may also contribute to maternal and neonatal deaths.

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 also violates persons right to physical integrity.

FGM is commonly performed upon girls between the age 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 recognised 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.”

In the early years, FGM was framed as a health issue and its elimination focused more on the health consequences of FGM. This led to increased medicalisation of the practice with FGM being carried out by medical professionals rather than traditional practitioners. However, from a human rights perspective, medicalisation of FGM does not, in any case, make it acceptable as the practice itself violates a number of basic human rights.[15]  The focus thus shifted to elimination of the practice itself. 

Till date more than 20 countries across Africa and 13 countries elsewhere have laws criminalising FGM. Legal provisions that apply to FGM vary in scope and approach. In countries such as Egypt, Ghana, Belgium, Austria, Cyprus, Denmark, Norway, Italy, Portugal, Sweden and Spain, it has been specifically incorporated in provisions of the penal code or under specific Acts. In the United States, Germany, France, the Netherlands, Mali and Switzerland, existing penal code provisions have been applied to FGM. In other countries such as the United Kingdom and Togo, special laws have been enacted to address FGM.

Impact of FGM

Sexual desire in girls and women is viewed as something that needs protection and it is perceived to be a family’s duty to circumcise their daughters to provide this protection. Not only can FGM provide physical protection by creating a barrier to intercourse but it is also perceived as a way to cleanse a girl from impure thoughts and desires.[16] Female circumcision seeks to protect a woman’s virginity before marriage by reducing her enjoyment of intercourse, and on marriage, it is seen to dissuade her from being unfaithful to her husband. In addition to physical harm, another adverse health consequence commonly described by a woman as being linked to FGM is mental health problems such as PTSD. Ongoing psychological and emotional suffering as a result of the procedure itself could affect women’s lives severely.[17]

It is pertinent to note that while FGM has a definite adverse health impact, male circumcision has no such adverse impact and indeed it can be argued that it, in fact, has a positive effect on health in avoiding certain kinds of infections. Hence, in FGM there are not only violations of the right to life and dignity but also a clear violation of the right to non- discrimination based on sex. The object and purpose and impact on male and female circumcision are different and result in gross discrimination against women

The Indian scenario 

The Bohra Community

FGM in India is practiced mainly in the Bohra community. It is commonly known that Muslims are divided into two sects: Sunnis and Shias. The Bohras belong to the Shia sect. They are found in many parts of India, notably in Gujarat, Rajasthan, Maharashtra and Madhya Pradesh. They also live in many other parts of the world – Pakistan, Sri Lanka, Singapore, East African countries, United Kingdom, Canada, Australia and the United States of America, among others. Their total population in the world is estimated at about one million.

The Bohras have a reputation for being successful business people with a strong focus on education. The women in the community are highly educated. However, it is thought to be the only Muslim sect in India that practices khatna, or clitoral unhooding, on girls at the tender age of seven, which is thought to have stemmed from the community’s roots in Egypt and Yemen. While the Dawoodi Bohras are the largest sect among Bohras, the other Bohra sects such as Sulemani and Alvi Bohras all practice FGM. While the Quran does not sanction female circumcision / khatna / khafz, Daimul Islam, a religious text followed by Bohras, endorses the practice on girls after they reach the age of 7 for hygienic reasons. Some Bohras also believe it enhances a woman’s complexion, controls her sexual urges and makes her more devout.

According to the legend believed by the Bohras, the last of the revealed Imams was Imam Tayyab who was the 21st Imam in the line of succession. He was a child when he succeeded to his predecessor in 1131 A.D. The further belief is that owing to the persecution of Tayyab, the 21st Imam, went into seclusion. Because of the seclusion of Tayyab, his predecessor – the 20th Imam – had directed his Hujjat (a dignitary next in rank) to appoint a Dai (Missionary) to carry on the Dawat (Mission) of the Imam so long as he should remain in seclusion, and to take and receive from the faithful an oath of allegiance.

The battle against social boycott

The Dai has complete control over the lives of the Bohras, including in secular matters. Several Bohras and their families are victims of social boycott. The reason behind it is that they questioned various religious and administrative practices within the community. Any stepping out of line immediately attracts ostracism from near and dear ones, disallows one from participating in social and religious gatherings and meetings, prevents the marriage of their children into the community, and prohibits the burial of their body from being buried in the community burial ground. This fear has prevented women from raising their voice against the practice of khatna or FGM, which continues to flourish in the community in an extremely secretive manner.

It is interesting to note that in 1949, the Bombay Prevention of Excommunication Act was enacted as a redressal sought by some boycotted members of the Dawoodi Bohra community. The Act prohibited the expulsion of any person from his or her religious creed, caste or subcaste and held any such excommunication to be invalid. Under the law, no community could deprive a person of their right to property, to worship in religious places, to perform funeral rites or other rituals. In 1951, however, the 51st Dai, Syedna Taher Saifuddin, challenged the Act in the Bombay High Court. After a prolonged legal battle that culminated in a decision of the Supreme Court in Sardar Syedna Taher Saifuddin Saheb v. The State of Bombay[18], a majority judgment regarded excommunication as a legitimate practice of a community protected under Article 26 of the Indian Constitution. Article 26 grants every religious denomination or any section thereof the freedom to manage their religious affairs. The matter is still pending before the Supreme Court as reformist Bohras filed a review petition against the said judgement asking for a reconsideration of the decision.

In the meantime, on April 14, 2016, the Maharashtra legislature passed the Maharashtra Prohibition of People from Social Boycott (Prevention, Prohibition and Redressal) Act, 2016 to prohibit the social boycott of individuals or families by caste panchayats (local caste councils) or any community and defines such behaviour as an offense punishable with imprisonment, which may be up to seven years, or with a fine that may be as much as five lakh rupees (about US$ 7,522) or both. Although this law was not specifically targeted at any one community, it applies to all communities including the Dawoodi Bohras and it remains to be seen how the community will react to this law when it is invoked against them. As of now, it seems clear that few people would risk excommunication by going against the norms set by the community. Voices against the practice of FGM are also muzzled because of an inherent fear of social boycott that prevails in the community. There are no signs of FGM being done away with by the community itself, and hence, the need to consider the available legal options. There is no doubt about the fact that the fear of excommunication and religious sanctions act as a compulsion to Bohra parents to perform FGM on their daughters, and in that sense, there is also no doubt that the Syedna Muffadal Saifuddin is actively advocating and propagating FGM.

Indian legal framework

In India, various forms of violence against women are dealt within the Indian Penal Code, 1860 (IPC). According to the WHO, the immediate complication of FGM 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. and thus persons undertaking FGM may be prosecuted under the IPC. Section 319 to 326, IPC address varying degrees of hurt and grievous hurt.

Particularly, Sections 324 and 326, IPC provide penalties of imprisonment and fines for ‘voluntarily causing hurt’ and ‘voluntarily causing grievous hurt’[19]. Former Director of the Central Bureau of Investigation (CBI), R.K. Raghavan, has noted that though FGM is not explicitly an offence under the IPC, on a complaint, the police are obligated to register a case under Section 326 of the IPC.[20] 

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.[21] 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, which requires insertion of a sharp object into the vagina of a child, may be covered under Section 3, POCSO Act read with Explanation 1 of section 375 IPC.

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.” 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”, and protecting children from all forms of violence, abuse, exploitation and discrimination, or any activity that harms their personhood or impedes their development.

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 circumstances, through an interface with various sectors, including health, education, judiciary, police, and labour, among others. Systems under ICPS promote the right to privacy and confidentiality of the child and institutionalisation of the child is seen as a measure of last resort. 

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, the duty to report, support and rehabilitative provisions and awareness generation.

As mentioned earlier, khatna is either carried out by Mullanis, women who have a semireligious standing, or by traditional cutters or by doctors. According to a 2008 UNFPA report titled ‘A Qualitative Study on FGM among the Dawoodi Bohra Community’, it was observed that religious beliefs regarding FGM were not changing in the community but very minor changes in approach regarding the appropriate age of the girls (when they should be operated upon), increasing dependence on private doctors and nurses instead of traditional FGM performers, were silently creeping in the society.[22] This report suggests that those who perform or abet the performance of and propagate FGM should all be held guilty of the offence. 

On the issue of reporting cases of FGM, most countries target health professionals, social workers and teachers. The Protection of Children from Sexual Offences Act, 2012 under Section 19 makes it mandatory on any person who has any information of the offence to report to the police. Young girls are usually taken by a female relative for the Khatna and very often are themselves not aware of what is happening to them. In such a case, thus, it is recommended that whoever, including teachers, doctors etc., come upon any information of the commission of such an offence, they are duty bound to inform the police for necessary action

FGM cannot be justified as a religious practice

FGM In many places, the practice of FGM is often linked to a ritual marking the coming of age and initiation to womanhood.[23] In a study conducted among women of the Dawoodi Bohra community[24], it was found that religious requirements, tradition, custom and the wish to curb the girl’s sexuality were the main reasons for the practice.

Articles 25[25] and 26 of the Indian Constitution guarantees the right to freedom of religion and freedom to manage religious affairs. The individual right to religious freedom as guaranteed under Article 25. However, such freedom is subject to provisions of Part III of the Indian Constitution i.e., to fundamental rights including the fundamental right to equality and non-discrimination based on sex as guaranteed under Articles 14 and 15 of the Indian Constitution. Such freedom is also subject to public order, morality and health. 

The practise of FGM is an act that targets women with the objective of curbing girls’ and women’s sexual desires and leads to ill health effects. Women and girls are seen as objects with sexual desires that need to be curbed to protect women and girls from being violated by other men. Such practice is unconstitutional as it gender stereotypes women and girls and thus is violative of their fundamental rights under Articles 14[26] and 15[27] of the Indian Constitution. Such practice, in the garb of religion and the object to protect girls and women, victimizes women and violates their rights to physical autonomy, to be in control of their own bodies and to be protected from physical violence and mental trauma and thus is violative of their right to life guaranteed under Article 21[28] of the Indian Constitution. Gender stereotyping is contrary to the principles of equality as enshrined in the Indian Constitution.

The Supreme Court in Anuj Garg v. Hotel Association[29] while adjudicating a challenge to Section 30 of the Punjab Excise Act, which prohibited the employment of any man under the age of 25, and any woman, in any part of an establishment in which liquor or another intoxicating drug was being consumed, rejected the gender stereotypical arguments that the said legislation was essential to ensure the “security” of women.

 The Court observed that:

 “The present law ends up victimizing its subject in the name of protection. In that regard, the interference prescribed by state for pursuing the ends of protection should be proportionate to the legitimate aims…Gender equality today is recognized by the European Court as one of the key principles underlying the Convention and a goal to be achieved by Member states of the Council of Europe…It is for the court to review that the majoritarian impulses rooted in moralistic tradition do not impinge upon individual autonomy. This is the backdrop of deeper judicial scrutiny of such legislation world over…Therefore; one issue of immediate relevance in such cases is the effect of the traditional cultural norms as also the state of general ambience in the society which women have to face while opting for employment which is otherwise completely innocuous for the male counterpart.

The Supreme Court in the said case held that: 

“The Court’s task is to determine whether the measures furthered by the State in form of legislative mandate, to augment the legitimate aim of protecting the interests of women are proportionate to the other bulk of well-settled gender norms such as autonomy, equality of opportunity, right to privacy et al. The bottom-line in this behalf would a functioning modern democratic society which ensures freedom to pursue varied opportunities and options without discriminating on the basis of sex, race, caste or any other like basis.”

The group/denomination right to religious freedom to manage one’s own religious affairs is guaranteed under Article 26[30]. However, such freedom is also subject to public order, morality and health. 

The Supreme Court, in Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi v. State of Uttar Pradesh[31], while upholding the constitutional validity of Uttar Pradesh Sri Kashi Vishwanath Temple, 1983 governing the management and administration of the Vishwanath Temple that overrode customs and usages, laws, and decrees to the contrary, held that: 

“The denomination sect is also bound by the constitutional goals and they too are required to abide by the law; they are not above law. Law aims at removal of the social ills and evils for social peace, order, stability and progress in an egalitarian society. … For instance, untouchability was believed to be a part of Hindu religious belief. But human rights denounce it and Article 17 of the Constitution of India abolished it and its practice in any form is a constitutional crime punishable under civil Rights Protection Act. Article 15(2) and other allied provisions achieve the purpose of Article 17.”

The practice of FGM regardless of being a religious practice of the Bohra community or not is subject to constitutional morality and the Bohra community will have to bow to the constitutional norms of equality and non-discrimination. Such practice will not be protected under Article 26. Gender justice, that is non-discrimination at the very least, is part of the constitutional morality of India. As explained earlier, the practice of FGM is violative of Articles 14 and 15 to the extent it runs counter to gender justice. It also offends Articles 25 and 26 of the Indian Constitution as it runs counter to constitutional morality.

Prevention

Measures in India that may be relevant to prevent the practice of FGM in India, the Integrated Child Protection Scheme (ICPS) is targeted towards providing preventive and rehabilitative services to “children in need of care and protection and children in conflict” as defined under the Juvenile Justice (Care and Protection of Children) Act, 2015 and with children who come in contact with the law, either as victim or as a witness or due to any other circumstance.” Girls who have undergone the procedure of FGM or who are at risk of such a procedure would come under the definition of “children in need of care and protection” as per the scope and meaning of the term under the Juvenile Justice Act. They are, thus, beneficiaries under the ICPS. The ICPS also envisages the preparation of an individual care plan by professional assessment, which would incorporate the specialised and required services under the scheme for the child. Keeping in mind the unique and multiple needs of a girl who has undergone FGM or is at risk of FGM, it is essential that the following services under ICPS be made available:

  1. Childline emergency phone outreach: Any girl in crisis or an adult on her behalf should be able to call the national emergency toll free number (1098) to access the emergency and long-term rehabilitation services. The call operators at Child line should be sensitised and trained on the issue of FGM and should be able to provide suitable advice and guidance to the callers. This should include rescue services, where appropriate, producing the child before the Child Welfare Committee (CWC), coordinating with the CWCs, generate awareness in communities, and other activities deemed necessary. 
  2. Foster care: As described in the ICPS, “fostering is an arrangement whereby a child lives, usually on a temporary basis, with an extended or unrelated family member. Such an arrangement ensures that birth parents do not lose any of their parental rights or responsibilities. This arrangement shall cater to children who are not legally free for adoption, and whose parents are unable to care for them due to illness, death, desertion by one parent or any other crisis. The aim is to eventually reunite the child with his/her own family when the family circumstances improve and thus prevent institutionalization of children in difficult circumstances.” It is recommended that such an arrangement be made available to the child. Care must be taken that identification of the foster family be done with consultation with the child. The Specialised Adoption Agency is responsible for identifying vulnerable families and children in need of foster care, for preparing the individual care plan and for recommending the case to the CWC. It is also responsible for monitoring the child and reporting progress to the CWC. 
  3. Awareness generation and sensitisation: In cases such as FGM, circumstances are such that it makes it difficult for the child to consider making a complaint to the necessary authorities. It is thus essential that widespread awareness and sensitisation on the issue is carried out amongst frontline professionals tasked with handling such complaints, including police officers, medical professionals, school teachers, nurses and counsellors. Awareness and sensitisation should not be restricted to personnel handling complaints or school-teachers but rather the whole public, through inclusion of the subject of FGM in school curricula and staging of street plays. Ward committees, Panchayats and civil society organisations should coordinate with each other effectively to sensitise the Bohra community and conduct safety audits.

Conclusion 

While it has been demonstrated above that some provisions exist in Indian law for criminal action against any form of hurt, there is no specific mention of FGM in our laws and the practice largely goes unnoticed. It has also been seen, internationally, that it has proved necessary to have a specific law dealing with the subject, which addresses not only prosecution but also prevention, education, awareness building, relief and rehabilitation. Thus, the discussion here is conclusive that a separate law on FGM is necessitated for similar reasons, that is, to expose the problem and address it as a harmful criminal practice and not as an acceptable religious practice.

Endnotes

[1] UNFPA, Implementation of the International and Regional Human Rights Framework for the Elimination of Female Genita Mutilation’, November 2014.

[2] Harinder Baweja, Indias Dark Secret, Hindustan Times. Available at https://www.hindustantimes.com/static/fgm-indias-dark-secret/

[3] See https://sahiyo.com/2016/01 dated April 13, 2016.

[4] Supra, note 1

[5] Norman K,Joanne H, Hussein E, Oyortey, ‘FGM is Always With Us : Experiences, Perceptions and Beliefs of Women Affected by FGM in London’, Centre for development Studies (Swansea)

[6] Harinder Baweja, Indias Dark Secret, Hindustan Times. Available at https://www.hindustantimes.com/static/fgm-indias-dark-secret/

[7] WHO,Health risks of female genital mutilation (FGM). Available at: http://www.who.int/reproductivehealth/topics/fgm/health_consequenses_fgm/en/

[8] 3 Article 3, UDHR: “Everyone has the right to life, liberty and security of person.” Full text of UDHR available at: http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=eng. 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.” Full text of ICCPR available at: https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668- english.pdf

[9] 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 all medical service and medical attention in the event of sickness.” Full text of ICESCR available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx

[10] 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.”

[11] Full text of UNCRC available at: http://www.ohchr.org/en/professionalinterest/pages/crc.aspx

[12] Article 1, CEDAW. Full text of CEDAW available at: http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article1

[13] ‘Female Genital Mutilation: A Matter of Human Rights’, Centre for Reproductive Rights (New York, 2006) at p. 14

[14] 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.”

[15] See: ‘Implementation of the International and Regional Human Rights Framework for the Elimination of Female Genital Mutilation’, UNFPA, November 2014, at p. 9. Available at: https://www.unfpa.org/sites/default/files/pub-pdf/FGMChumanrights.pdf

[16]

[17] Norman K, Joanne H, Hussein E, Oyortey, ‘FGM is Always with Us: Experiences, Perceptions and Beliefs of Women Affected by FGM in London’, Centre for Development Studies (Swansea, 2009) at p. 21

[18] AIR 1962 SC 853

[19]  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.”

[20] Rasheeda Bhagat, ‘Ban this barbarous practice!’, Hindu Business Line, July 29, 2014. Available at: http://www.stopfgmmideast.org/india-ban-this-barbarous-practice/

[21] 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”

[22] Dr. Farida Shah, ‘A Qualitative study on FGM/FGC among Dawoodi Bohra Community’, at p. 19

[23] UNFPA, ‘Implementation of the International and Regional Human Rights Framework for the Elimination of Female Genital Mutilation’, November 2014, at p. 16

[24] R. Ghadially, ‘All for ‘Izzat’: The Practice of Female Circumcision among Bohra Muslims’, Manushi, No.66, September – October 1991

[25] “Article 25 – Right to Freedom of Religion: (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law— (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I. — The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II. — In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.”

[26]  “Article 14 – Equality before the 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.”

[27] “Article 15 – 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 places 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. (5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.”

[28] “Article 21 – Protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law”

[29] 2008 (3) SCC 1

[30] “Article 26 – Freedom to manage religious affairs: Subject to public order, morality and health, every religious denomination or any section thereof shall have the right: (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law.”

[31] 1997 (4) SCC 606


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