Author: Tanvi Tanu
II Year| University of Petroleum and Energy Studies, Dehradun

Introduction:

Today’s world is a modern society – a space where the rights of individuals are not only acknowledged but also ensured. Despite that, women and children form the vulnerable sections of the society. The real struggle emerges when violations of their human rights are deep-rooted in the culture. One of the classic examples of such a violation is Female Genital Mutilation (FGM).

A number of sociocultural factors determine and influence the practice. The communities that follow the practice may do so to control the sexuality of women. A family that doesn’t adhere to the practice may be subject to societal sanctions.[1] Last year, Sudan criminalised the practice of FGM. Women across the world celebrated this.

The author in this article shall address the major question as to why India, in the foreseeable future, may not follow the footsteps of Sudan. The author ponders over why we can’t criminalise FGM, a practice which is prima facie a blatant disregard of human rights.

What is Female Genital Mutilation?

According to the World Health Organization, Female Genital Mutilation is the procedure that involves partial or total removal of external genitalia of women mostly young girls for non-medical reasons[2].

It is a harmful operation during which the female genital organs are partly or entirely removed or injured. The intention is to supress a woman’s sexual feelings and to ensure their fidelity in marriages. Generally, women of the family and neighbourhood perform the mutilation before puberty, often on girls between the age of four and eight[3].

Types of FGM:

Female Genital Mutilation is classified into four major types which are:

• The partial or total removal of clitoral glans (the external and visible part of the clitoris, which is the sensitive part of the female genitals), and/or the prepuce/clitoral hood (the fold of skin surrounding the clitoral glans) is Type 1.
• Type 2 is the partial or total removal of clitoral glans and labia minora (the inner folds of vulva), with or without removal of labia majora (the outer folds of skin of the vulva)
• Type 3, also known as infibulation, is 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 clitoral hood and glans (type 1)
• Type 4 includes all other harmful procedures to the female genitalia for non-medical purposes, such as, pricking, piercing, incising, scraping and cauterizing the genital area.

Mostly, maiden wives carry out the procedures and operations.  When that is not the case, the practice is medicalized. It means that doctors perform the procedures to lessen the harm. International authorities like WHO condemn such passive approval of the process (medicalization of FGM). The global human rights regime regards it as an extreme level of discrimination against women.[4]

Can India criminalize Female Genital Mutilation?

 The author has the following arguments as to why the practice may not be criminalized in India anytime soon. To solve any problem, we first need to recognise the existence of a crisis. The practice of FGM is often seen as inherent to the religion. In India, the most infamous community that follows this practice is the Dawoodi Bohra community of Shiaa Muslims (they call the practice khafz or khatna).[5] Communities practising FGM see it as a composite entity to the religious identity of people. In fact, a non-adherence may even lead to sanctions against the family.

Khafz is a means of controlling female sexuality to prevent the women from going astray in a marriage. The practice finds support of a well-lubricated social system of the women of the households: the mothers, grandmothers. Thus, seeing it for what it is, an adamant violation of human rights, may account to social deviance. Khafz was not talked about in India for a long time within a household, let alone on a national forum. Therefore, identifying it as a problem in the social sphere was simply out of question.

Legal Framework:

Talking about the political and legal sphere, the government defies its existence within the territories of India, more so because the practice takes place within closed doors and finds social and familial backing. The Ministry of Women and Children Development in 2017 denied any records pertaining to FGM before the apex court. [6]

Intertwinement with Religion:

Secondly, the Supreme Court tagged FGM in the Bohra Community case[7] with the Sabrimala case[8][9]. The practice is seen as an intrinsic aspect of religion. Thus, the advocates on behalf of the respondents (Mr. A.M. Singhvi) argued that it falls within the ambit of Article 25, i.e., right to religion. Hence, the crisis involves a major clash between the fundamental rights under Article 21 and 25 of the Indian Constitution. Article 25[10] is subject to public health, order and morality, which is an equally relevant argument in this subject.

The case was referred to a Constitutional bench.[11] Whether or not the practice is innate to Islam is a contested idea as some sections follow it while others do not. What is undeniable is the fact that the practice is violative of a child’s right to life and personal liberty, within the spectrums of right to health and right to privacy.

Impact on mental and physical health:

When discussing the right to health, it is important to pay heed to the immediate and long-lasting complications that FGM may cause. According to the World Health Organization, immediate complications may include severe pain, profuse bleeding, genital tissue swelling, fever, infections, urinary problems, wound healing problems, shock and death form the immediate consequences of the procedure.[12]

Whereas long term complications, as experienced by victims of the practice, may cause:

• urinary problems in the form of frequent UTIs (urinary tract infections)
• vaginal problems (discharge, itching, other infections)
• menstrual problems (painful menstruations, difficulty in passing menstrual blood)
• scar tissue and keloid
• sexual problems (pain during intercourse, decreased satisfaction)
• increased risk of childbirth complications (difficult delivery, excessive bleeding)
• need for further surgeries and pervasive psychological problems (depression, anxiety, low self-esteem, post-traumatic stress disorder).[13]

Analysis of rights violated by Female Genital Mutilation:

It is pertinent to note here that the procedure may be fatal, thus right to life stands compromised. Even when death doesn’t follow, the victim’s right to health stands violated since midwives conduct the procedure. When viewing the problem, through the lens of right to privacy, the child’s bodily integrity stands violated at an age when she cannot consent to the procedure. As was iterated in the case by KS Puttaswamy v UOI[14], right to privacy includes sexual and reproductive autonomy.

In the case of Navtej Singh Johar v UOI[15], the apex court held that a person’s sexual orientation is innate to their existence. Thus, any discrimination on the basis of such inherent nature would amount to infringing Part III of the Constitution and test negative for the concept of Constitutional morality. The case though in a lot of aspects was different from the issue in discussion, the ratio decidendi can very well apply as the issue here involves the fact that FGM unlike male genital mutilation has no health benefits whatsoever.

Conclusion:

It is important to point out that culture and tradition, not religion, is the primary motive for carrying out FGM. On the face of it, the rationale and the crisis itself may seem pretty simple, but the major problem is that the issue is thought to be associated with the religious identity of the victim. The aforesaid interplay with the religion makes the criminalisation of FGM almost a revolutionary move.

It took Sudan several decades to finally succeed in doing away with the practice legally[16]. In India, the struggle is fairly new. To sum up, its unfortunate that it is likely that criminalisation may take a lot more time than it should.

[1]Female genital mutilation: What is it, cultural and social factors, CLICK ON DETROIT, (26^th January,2021 4:20PM) URL: https://www.clickondetroit.com/news/2017/04/14/female-genital-mutilation-what-is-it-cultural-and-social-factors/

[2] Female Genital Mutilation, WORLD HEALTH ORGANIZATION, (19^th January, 2020, 5:54 PM) URL: https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation

[3] What is FGM? DESERT FLOWER FOUNDATION, (19^th January, 2020, 6:09 PM) URL: https://www.desertflowerfoundation.org/en/what-is-fgm.html

[4] Female Genital Mutilation, WORLD HEALTH ORGANIZATION, (19^th January, 2020, 6:27 PM) URL: https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation

[5] Harinder Baweja, India’s Dark Secret, HINDUSTAN TIMES (26^th January, 2021, 5:47 PM) URL: https://www.hindustantimes.com/static/fgm-indias-dark-secret/

[6] Rina Chandran, No evidence of FGM, India government tells court, appalling activists, THOMAS REUTERS FOUNDATION, (26^th January,2021) URL: https://www.reuters.com/article/us-india-women-religion-idUSKBN1EN0QB

[7] Sunita Tiwari v Union of India, W.P. (C) No.286/2017

[8] Indian Young Lawyers Association vs State of Kerala, Writ Petition (Civil) No 373 of 2006.

[9] Sabrimala Review, SUPREME COURT OBSERVER, (26^th January, 2021, 4:35 PM) URL: https://www.scobserver.in/court-case/sabarimala-review

[10] Article 25 in the Constitution of India 1949, INDIAN KANOON, (19^th January, 2021, 6:33 PM) URL: https://indiankanoon.org/doc/631708/

[11] Sunita Tiwari v Union of India, W.P. (C) No.286/2017

[12] Female Genital Mutilation, WORLD HEALTH ORGANIZATION, (25^th January, 2021, 11:44 PM) URL: https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation

[13] Health Risks of Female Genital Mutilation (FGM), WORLD HEALTH ORGANIZATION, (29^th January, 2021, 12:42 PM) URL: https://www.who.int/teams/sexual-and-reproductive-health-and-research/areas-of-work/female-genital-mutilation/health-risks-of-female-genital-mutilation

[14] Justice K. S. Puttaswamy (Retd) vs. Union of India, (2017) 10 SCC 1

[15] Navtej Singh Johar vs. Union of India Ministry of Law, (2018) 10 SCC 1

[16] Masooma Ranalvi, If Sudan can ban female genital mutilation, why can’t India? SCROLL.IN, (19^th January, 2021, 6:57 PM) URL: https://scroll.in/article/962307/if-sudan-can-ban-female-genital-mutilation-why-cant-india

Editor: Pari Agrawal
Content Manager| Leagle Samiksha