This article has been written by Aaryaki Rana, Chanakya National Law University, Patna, and curated by Sahana Arya.
Genital mutilation remains an act of inhumane consequence and prejudice against women in today’s society. This practice is a manifestation of gender inequality against girls and women, and discrimination that is submerged in the traditional economic, social and political structures. Female excision, that is female genital mutilation or female circumcision is considered to be a ritual wherein some or all the external female genitalia is removed. The World Health Organization (2008) defines FGM as all procedures involving partial or total removal of the external female genitalia or other injury to the female genital organs for nonmedical reasons.
This further causes injury to the female genital organs. This practice is most prevalent in Africa, Asia and the Middle East, where in such practices are centric to certain communities, for nom- medical reasons. This practice is deeply rooted in several communities and these traditions remain unclear. The most commonly practiced and preached reasons for genital mutilation states that it attempts to control the women’s sexuality and their experience of amorous pleasure resulting from sexual intercourse. These communities also believe that this practice is required for a girl’s humble and proper upbringing, to maintain the sanctity of marriage and to maintain the family’s honor. Female genital mutilation as is practiced in India, is called “khatna” or “khafz”, which involves the removal of the clitoral hood or clitoris. This practice is the most common among the Bohra community, who are found mostly in the states of Gujarat, Maharashtra, Rajasthan, Madhya Pradesh and Kerala. This practice, under the veil of secrecy is practiced on girls from the age 0-15 years. It is seen that these surgical removals are caused by traditional circumcisers, in unhygienic conditions with unsafe instruments.
FGM may qualify as a form of “hurt or grievous hurt” under the Indian Penal Code and a crime under the Section 3 of POCSO Act, due to the process being carried out with an instrument of non-surgical nature, however there is no specific law in India in this respect. Article 25 and 26 of the Indian Constitution guarantees the right to freedom of religion and freedom to manage religious affairs, however such individual freedom is subject to the provisions of the Part III of the Indian Constitution i.e. fundamental rights which includes the fundamental right to equality and non-discrimination based on sex, guaranteed under Article 14 and 15 of the Indian Constitution. The practice of FGM falls under this purview as it targets women with the objective of limiting their sexual desires as they are merely seen as objects that need to be kept in check. It is also propagated in the name of the protection of women form other men, except for their husbands. Thus, this act violates the fundamental right to life guaranteed to such women under Article 21 of the Indian Constitution. In the case of Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi v. State of Uttar Pradesh the Supreme court, pronouncing on the management and administration of the Viswanath Temple that overrode custom, laws and decrees, contrarily 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 similarly, regardless of being a religious practice of the Bohra Community must be subject to constitutional morality and the Bohra community will have to bow to the constitutional norms equality and non- discrimination.
Countries such as Sudan have created laws for banning the practice of genital mutilation in women. A number of countries have taken a similar step towards the same, by declaring the applicability of child protection laws or by enacting specific legislations, for the elimination of such harmful practices. The United Kingdom enacted the Female Genital Mutilation Act, 2003 which was amended by Section 73 of the Serious Crime Act, 2005 to include FGM Protection Orders. This order is essentially a civil measure which can be applied for through a family court. The breach of an FGM Protection Order is a criminal offence here which leads to a sentence of upto 5 years in prison.
However, India has not been successful in deciding to acknowledge such a practice. This is mainly because it goes unreported in our country. The Integrated Child Protection Scheme (ICPS) is targeted towards providing preventive and rehabilitative services to children. These children are those who are “in need of care and protection and children in conflict” as defined under Juvenile Justice (Care and Protection of Children) Act, 2015. Girls who are subject to the FGM practice are beneficiaries of the ICPS, and thus ICPS also envisages the preparation of an individual care plan by professional assessment, so that it could incorporate the specialised services under the scheme for the girl. Despite such an initiative, India has to set on a long journey for the protection of the females, which have always been a rigorous object of discrimination since time immemorial. Recent events and judgments have shown the Supreme Court bowing down to religion over law, which has only been equipped with the reason of tradition, should not be acceptable and must be seen and held in it’s true nature of being in violation of Human Rights in the eyes of international law.