By Abhiraj Das and Nihal Deo
Sudan has in April 2020 banned and criminalized Female Genital Mutilation. India is also no less a victim of the practice, but the absence of special legislation and inadequacy of the existing laws has allowed FGM to persist in silence.
What is FGM?
WHO has defined Female genital mutilation/Cutting (FGM/C) as “the partial or total removal of external female genitalia or other injuries to the female genital organs for non-medical reasons.” FGM has been categorized into four-types–
- Type I: Clitoridectomy, involves partial or total removal of the clitoral glans which is the visible and external part of the clitoris and/or the prepuce.
- Type II: Excision, means partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora.
- Type III: Infibulation, is the contraction of the vaginal orifice by cutting and appositioning the labia minora and/or the labia majora.
- Type IV: All other harmful procedures to the female genitalia, e.g. pricking, piercing, incising, cauterization, etc.
Health risks from FGM
Unlike male-circumcision, according to WHO, there are no known health benefits of FGM. Contrarily, those females who have undergone the procedure suffer physical, psychological, emotional, sexual, and other implications throughout their lives. The process is hurtful, traumatic, and stressful and is more-often-than-not performed under unsterile environment by traditional mid-wives who have little medical knowledge. FGM leads to immediate and long-term genitourinary complications which include excessive pain, haemorrhage, urinary-tract-infections (UTI), bacterial-vaginosis, painful menstruation, painful urination, post-traumatic-stress-disorder. FGM poses high-risk of adverse-obstetric-outcomes, which may also affect the health of the new-borns. Further, scarring of the vulvar region causes pain, even during sexual intercourse. Diminished sexual-satisfaction is another consequence of the removal of sexually-sensitive parts, including the clitoral glans.
FGM/C contravenes international conventions
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)-1979, referred to as the Bill of Rights for women, lays down what includes discrimination and promulgates steps on a “non-discriminatory” model; it considers denial of women’s rights per se as a violation. Article 2 of the Declaration on the Elimination of Violence against Women-1993 provides that FGM/C is violence against women. Further, Article 4 necessitates states to not only condemn but also refrain from invoking any custom, tradition or religious-practice to shirk their obligation to eliminate any such violence. UDHR-1948 under Article 25 entails the right to standard living-conditions appropriate for his/her health. Article 2 of the ICCPR prohibits any discrimination based on sex. Further, Article 7 protects the physical integrity of a person. Article 18 states that freedom to manifest one’s religion or beliefs is not absolute and may be restricted by law to protect public safety, health, or the fundamental rights and freedoms of others. Moreover, Article 24 of Convention on Rights of Child-1989 explicitly mentions that “States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.”
Steps against FGMs in other jurisdictions
In the USA, 18 U.S. Code § 116 provides for imprisonment up to 5-years for anyone who circumcises, excises, or infibulates the whole or any part of the labia-majora or labia-minora or clitoris. It, however, provides an exception to any medical-surgeries. Similar provisions in Australia can be found under section 45 of the Crimes Act-1900 inserted by the 1994-amendment. The 2014-amendment increased the imprisonment from 7-years to 21-years. In a Supreme Court of NSW case of A2 v. R; Magennis v. R, it was held that the traditional Dawoodi-Bohra practices of female-circumcision-or-Khafz categorically didn’t amount to FGM. High Court of Australia while overturning it ruled FGM is illegal in every form, even where no physical damage is visible.
UK proscribed FGM in 1985 through Prohibition of Female Circumcision Act-1985. However, this legislation was replaced by Female Genital Mutilation Act-2003, which banned the FGM and also criminalized the practice of taking girls outside UK for conducting FGM. Imprisonment term as-high-as 14-years, is provisioned. In Egypt, where FGM is prevalent among Christians too, it has been criminalized u/Article 242-bis and Article 242-bis(A) of the Penal Code-1937. These cover within the purview “any of the external female genital organs” as well as the “request” to perform FGM.
FGM in India
FGM/C, also known as female-circumcision or Khatna or Khafd, is practised mainly among the Dawoodi-Bohra community of Shia Muslims in India. Mostly prevalent in the states of Maharashtra, Madhya Pradesh, Rajasthan, Gujarat, and Kerala, it involves cutting or “nicking” of clitoral-hood. In Kerala, the practice is referred to as sunnathkalyanam among various sects and also practiced among Christians. Khatna is considered as a religious obligation by the Bohras and is associated with purity and piety. It is believed that the clitoral-head is ‘immoral lump of flesh’, that it is a ‘source of sin’ which makes women go ‘astray’ out-of their marriages and is removed to “suppress” the sexual urges. The FGM/C is conducted by untrained midwives or older women of the community using razor blades, knives, or even a pair-of-scissors forcefully on girls generally aged between six-to-ten-years. At some places, even the medical practitioners perform Khatna. Since there is the absence of any law forbidding FGM/C in India and the practice been interdicted in other countries, India is being seen as a ‘hub’ for performing FGM/C.
Besides the lack of legislation, the unavailability of accurate and large-sample research data contributes to the peril of FGM/C and the plight of innocent minor girls. According to Amnesty-India, “while FGM/C is well-documented around the world, in India the veil of secrecy means no official-data on its prevalence.” GOI filed an affidavit in the Supreme Court submitting “there is no official data or study (by NCRB, etc.), which supports the existence of FGM in India.” A recent qualitative study highlighted that around 75% of daughters have been subjected to FGM; some were even below seven-years-of-age. It reveals that FGM/C is prevalent in every class. Apart from the various health-complications and psychological-traumas suffered, approximately 33% of the women-surveyed reported FGM/C had adversely affected their sexual life.
Supreme Court in Vishaka_v._State_of_Rajasthan emphasizing the importance of international-conventions stated, “In cases involving Human Rights, the Courts must be alive to the international-conventions and instruments to give effect to their principles-such as the CEDAW-1979,etc.-directing all state parties to take appropriate measures to prevent such discrimination”. In Childline_India_Foundation_v._Alan_John_Waters, SC observed that “Constitution envisages a happy and healthy childhood for children free from abuses and exploitations.”
It is well-established through Shirur-Mutt case and subsequent judgements that Article 25 & 26 guarantee fundamental-right to religion “but except when it is found to run counter to public order, health, morality”, and other Constitutional mandates. The argument that FGM is an essential-religious-practice will not sustain as essential-practice means those practices that are fundamental to follow a religious belief, sans which religion will be no religion. Further, Constitution-bench in Durgah-Committee case has cautioned that “even practices though religious may spring from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself.” The right, thus, does not extend when it is found to be pernicious and violative of human rights, dignity, and social equality. Moreover,Article-21 read-with Article-51A(e) mandates and imposes a duty on Indian citizens ‘to renounce practices derogatory to women’s dignity’.
FGM was challenged in Sunita Tiwari v. UOI on the ground of the practice being discriminatory against women and violative of their right to equality, privacy, and personal-liberty, however, the matter was referred to a larger-bench without passing any interim order. Last year, the matter was clubbed with the Sabarimala-temple-case and was referred to a seven-judges-bench for consideration.
With government maintaining that the provisions under IPC and POCSO are adequate to deal with FGM, it becomes imperative to look into the same. Section 3 (penetrative sexual assault) of POCSO r/w explanation 1 of section 375 IPC is being argued to provide protection against FGM. What needs to be understood is that FGM is committed on adult women as well where POCSO will be inapplicable. Even if it is invoked in the cases concerning children, milder category of FGM fails to fall within definition u/s 3 and it will be reduced to mere interpretations by the judges. Further, section 324 and 326 of IPC which provide for punishment for causing hurt and grievous hurt may to-some-extent penalize conducting FGM, however, the same is in-no-way sufficient to curb the practice, which requires not merely penalizing the performance but also an act of inducing others to engage in FGM. Moreover, FGM/C is not just “any bodily injury” caused but involves severe harm to psychology, bodily-integrity, and privacy of the victim.
Member-states agreed in the UN General Assembly resolution-67/146 to intensify endeavours to abolish FGM which is “an irreparable, irreversible abuse that impacts negatively on the human rights of women and girls”. To allow such callous practices, which have physical, psychological, and physiologically-mortifying ramifications, to continue is a failure on the part of the government as well as the citizens. India must make concrete efforts to address the issue. Mobilizing public opinion, spreading awareness and education about the severe ill-complications of FGM/C, and the violations of basic-rights associated are incumbent upon the government. However, since there is evidence of the involvement of even highly-educated persons, and the practice being associated with religion, stricter measures than mere education are required to curb the practice. Like Sati and Triple Talaq, FGM/C is patently against the public policy. The Parliament must come up with a comprehensive-legislation which criminalizes both the practice and the attempt to sway others to perform it. Harsher punishments should be provided where FGM/C is conducted by medical-practitioners. Merely because there is a lack of “official study” showing the existence of FGM in India, the government cannot and should not oppose the imposition of a blanket ban on such practices. No laws on the subject would mean essentially no protection to females against such inhumane-practices. Norms of bodily integrity and privacy over one’s body do not allow such unjustifiable exercise of control over another’s body.
[The co-authors are third-year students at Gujarat National Law University, Gandhinagar.]