By Nandini Agarwal
Female Genital Mutilation (“FGM”) is a procedure that involves the partial or complete removal of a woman or girl’s external genitalia for non-medical reasons. It is a practice that is very prevalent in Guinea and Somalia, where about 90% of the female population has been subjected to some form of genital cutting or mutilation. Even though the practice has significantly reduced in the last 30 years or so, the work towards its complete abolition t needs to increase, and progress must increase tenfold in order to altogether abolish the practice of FGM by 2030.
There are four types of female genital mutilation. The first type is also referred to as female circumcision. However, this phrase has seen some criticism since it is often compared with male circumcision. While male circumcision helps reduce HIV transmission, female circumcisions increase it.
The practice is often considered the rite of passage to womanhood or as a way to suppress a woman’s sexuality, which helps maintain her purity by keeping her safe from the temptation of desire and hence saves the family’s honour and helps with her marriage in the future. Some people also believe that FGM is a religious practice even though it is not provided for anywhere in the scriptures. The belief in the community is that the clitoris is ‘the source of sin’, which leads women to stray from their marriages. Some people refer to the clitoral head as ‘haram ki boti’ which means ‘immoral lump of flesh.
There are many consequences of this practice, both mental and physical. The physical consequences include prolonged bleeding, infertility, infection, sepsis and even death while the psychological consequences include the inability to trust caretakers, depression, anxiety and PTSD.
International Laws –
Thirty-three countries criminalised FGM with the help of legal provisions, 20 of which are in Africa. In some countries, there are Acts, while in others, special laws or provisions are being enacted to prevent the act of FGM. The practise of female genital mutilation goes against many rights, including the right to dignity, rights of the child, right to the highest attainable standard of physical and mental health, right to life etc.
Most international human rights instruments provide gender equality and try to protect people from discrimination based on gender. Male circumcision has medical benefits, unlike female circumcision, which only leads to pain and lifelong problems, and the reason behind it is to curtail a woman’s sexual pleasure. She is discriminated against based on her sex, and her fundamental liberties and rights are being curtailed. This right against discrimination is provided for under the ICCPR, UDHR, ICESCR, CEDAW etc.
Under CEDAW, Article 2 necessitates for States to apply necessary measures to abolish discrimination which includes discrimination between genders, and Article 5(a) states that the State must adopt all possible measures to change the social and cultural structure of conduct amongst men and women in order to get rid of practices which are based on the concept of the stereotyped capacities for men and women or the superiority or inferiority of either sex.
FGM and its interaction with Indian Courts –
Public interest litigation was brought before the Supreme Court in 2017 for the ban of FGM. Upon receiving the petition, the court sought responses from four Central government ministries and four states. The three-judge bench ruled that a woman’s bodily integrity cannot be violated and referred the case to a five-judge constitutional bench where the practice of FGM was to be analysed through the lens of religious freedom.
The latest judgment put forth that the case will continue as a seven-judge bench analyses Articles 25 and 26, which provide for the right to religious freedom before the matter of female genital mutilation is decided. The case may be heard along with three other cases regarding women’s rights to practice religion. One of the cases is regarding the entry of Hindu women into the temple of Sabarimala. The second case concerns Parsi women married to non – Parsi men entering the fire temple, and the third case is about Muslim women entering mosques.
Issues with the Supreme Court Case –
Even though it appears that India has taken steps forward by discussing the matter in the Supreme Court and evaluating how it is to be dealt with, some aspects are problematic.
This case has taken a long time, and the court has passed no judgment in more than a year. The more the legislature and the courts wait to take action, the more girls across the country are being hurt and left with scars that stay with them for the rest of their lives, under the name of traditional and religious obligations.
Another problem in how this case has been handled is that there is a difference between cases where women are not allowed to enter places of worship and women/girls who are being circumcised. Even though they fall under the same overarching issue of religious rights and women, these two issues are substantially different. The case of FGM is more time-sensitive because of the physical and emotional trauma that the girls undergo during the process.
The final issue that this article points out would agree with the dissenting opinion of Justice Chandrachud and Nariman. They highlighted that constitutional morality, which came into question yet again in these cases, had already been defined by the Supreme Court in other cases. It is nothing but the principles encapsulated in the fundamental rights, fundamental duties and the Preamble of the Indian Constitution. This means that the right to equality is also included in constitutional morality, which is subjected to articles 25 and 26.
Solutions seen in other Countries –
The United Kingdom has an Act that prevents the practice of FGM. It is called the Female Genital Mutilation Act, 2003. This act was amended by Section 73 of the Serious Crime Act, 2015 and FGM protection orders were included. These orders provide the measure to protect the potential or actual victim from the practice of FGM. The breach of this order is considered a criminal offence and can lead to up to 14 years of imprisonment. The protection order contains conditions, prohibitions, and legally binding restrictions and is unique to each case. The court can order immediate victim protection in an emergency. The FGM Act also provides for mandatory reporting, which is essential in such cases related to children.
In France, if the child faces physical or psychological abuse at home, they may be placed in family shelters or under the protection of relevant authorities. France reported the most number of criminal court cases related to FGM, and it was also the first European country to adopt legal proceedings against the practice of FGM. Its Penal Code provides that acts of violence that lead to permanent disability or mutilation are included under Section 222-9 of the French Penal Code. The issue of FGM is well reported in France, and one of the main reasons for this is that there are checkups for girls below the age of 6. These checkups, along with a genital examination, may not be mandatory but are necessary for social security. There are regular checkups for girls at risk of FGM, which takes place every year, precisely when they come back from visiting another country. This practice of regular checkups is criticised because it alienates the community and is an intrusive procedure that further traumatises the child.
Female Genital Mutilation is a practice that does occur in India, and there are thousands of women signing petitions to prove it. It is difficult for mothers to go against the community’s traditions as they are under the pressure of their mothers and in-laws. The women who have undergone these horrors fear that if they stand up against it, they would be ostracised from the community as it is a small and close-knit one.
There is widespread recognition of the existence of this practice. However, steps to prevent it are yet to be taken. Even though we do not have laws specific to female genital mutilation, the practice goes against other criminal laws, such as Sections 320 and 322, which state that causing grievous hurt to another is a criminal offence. The debate on religious freedom regarding whether or not FGM should be abolished is not acceptable, especially since it breaks the existing laws and cannot be justified as a religious practice. The urgency of addressing this issue is real and must be addressed as soon as possible.
The practice of female circumcision may not be as widespread in India as it is in some other countries, but it still does happen. The Bohra community consists of 2 million people, which may seem like a small number of people considering the size of India’s population. However, it is big enough for thousands of girls to have undergone this inhumane procedure. It is a violation of fundamental human rights, and it has to be dealt with by our legal systems and education systems, considering that not many people are aware of this. Awareness has always played a considerable role in bringing social change, and awareness can help these girls get the help they need. While the author was conducting this research, she was shocked to learn that there are well-educated scholars who believe in and justify the practice of FGM. Traditions and culture surround a child as they grow older and shape the way they see the world, and certain things cannot be unlearned. Women who have undergone this process have put their daughters through it, too, all under the pretext of tradition. Some were pressured by family elders, while some believed in it themselves. A woman blocked the experience entirely and only realised that her genitalia had been tampered with when she was 44 years old.
By taking the examples of how other countries have dealt with the problem of FGM, we can bring change in our country as well, but this change will not start unless we accept the fact that the practice does exist within our borders. We need proper studies to reveal how widespread the practice is and to grasp the issue better before a change is brought about. The delays that we see in court need to be tackled quickly before more damage is done.
Nandini Agarwal is a fourth-year law student at OP Jindal Global University pursuing BALLB. She had keen interest in the subjects of Alternate Dispute Resolution, Child Rights and Intellectual Property Rights along with art and anything animated.