Written By Sanya Sharma
What is Female Genital Mutilation/Cutting (FGM/C):
The World Health Organisation describes Female Genital Mutilation/Cutting (FGM/C) as “the total or partial removal of external female genitalia or other injuries to the female genital organs for non-medical reasons”.[1] The Organisation states that there are no known health benefits of the procedure. Females who go through female genital mutilation/cutting suffer emotional, physical, sexual and psychological implications throughout their life.[2] Additionally, FGM/C also leads to long term complications for women: painful menstruation and urination, post-traumatic stress disorder, depression, urinary tract infections and bacterial vaginosis.[3] The World Health Organisation estimates that more than 200 million females have gone through female genital mutilation and every year, 3 million girls are at the risk of going through FGM/C.[4]
FGM/C is classified into four types:
· Type 1: Total or partial removal of clitoral glans, the visible and external part of the clitoris, which is known as Clitoridectomy.
· Type 2: Total or partial removal of the labia minora and the clitoral glans, with or without the removal of labia majora
· Type 3: Infibulation, the narrowing of the vaginal opening through the creation of a seal, which is formed by cutting or repositioning the labia minora, or labia majora.
· Type 4: Harmful procedures for non-medical purposes fall under this category. For instance, incising, cauterization, piercing, pricking etc.[5]
Female Genital Mutilation/Cutting in other jurisdictions:
The procedure is illegal in seventeen out of the twenty-eight African countries in which it is practised, and has been made illegal in eleven industrialised nations. The United States provides imprisonment up to 5 years for anyone who excises or infibulates the whole or any part of the clitoris or labia majora or the labia minora, according to the 18 U.S. Code § 116.[6] Similarly, in Australia, a 2014 amendment to Section 45 of the Crimes Act 1900, increased the imprisonment from 7 to 21 years for anyone who performs this procedure.[7] The High Court in Australia also overturned the ruling in A2 v R; Magennis v R and held that Female Genital Mutilation/Cutting is illegal in every manner, even when the physical damage is not visible.[8] Additionally, the UK banned Female Genital Mutilation and criminalised the practise of taking females outside the country to conduct FGM/C in the Female Genital Mutilation Act 2003.[9]
FGM/C in India:
In April 2020, Sudan criminalised Female Genital Mutilation, which made the procedure punishable by law with three years in jail.[10] In the UN Convention on the Rights of the Child, Article 24 explicitly states that “States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.”[11] Although there is special legislation on Female Genital Mutilation across the world, India has seen an absence of existing laws on the procedure, which has allowed FGM/C to persist in secrecy, with no official laws on its prevalence.
The practise in India is widely known as “khatna” ,“khafd” or the removal of the clitoris and is common amongst the Bohra community, whose members live in Kerala, Gujarat, Kerala, Rajasthan and Maharashtra.[12] India has become a “hub” for FGM/C since there is an absence of any laws on the subject in the country.[13] A recent study by a survivor-led organisation observed that 75% of daughters (some below seven years of age) have been subject to the procedure. In the surveyed report, 33% of women reported that FGM/C affected their sexual life apart from the psychological and health complications they faced.[14] Furthermore, Amnesty India remarked that “while FGM/C is well documented around the world, in India the veil of secrecy means no official data on its prevalence”.[15] The Government of India submitted in the Supreme Court that “there is no official data or study which supports the existence of FGM in India”.[16]
In Vishaka v State of Rajasthan, the Supreme Court of India upheld the importance of international conventions, which stated that “[i]n cases involving Human Rights, the courts must give effect to international conventions, CEDAW 1979, to direct all state parties to take appropriate measures to prevent discrimination.”[17] The courts in Childline India Foundation v Alan John Waters remarked that the “Constitution envisages for a healthy childhood for children free from abuses and exploitations.”[18]
In established judgments in the Indian Young Lawyers Association v State of Kerala[19] and Shirur Mutt case, Article 25 and 26 of the UN Convention on Rights of Child ensure the right to freedom of religion “but except when it is found to run counter to public order, health, morality”.[20] The constitutional bench in the Durgah Committee case remarked that “even practices though religious may spring from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself.”[21] Further, Article 21 read with Article 51A(e) places obligations on Indian citizens to ‘renounce practices derogatory to women’s dignity’.[22] Therefore, the right to freedom of religion does not extend when it violates one’s human rights, bodily integrity and social equality.
In Sunita Tiwari v Union of India, the emphasis was placed on the UN Conventions on the Rights of Child and Universal Declaration of Human Rights. In the case, it was urged by the appellants that the practise was a violation of Article 21 of the Constitution of India. The practise violates a women’s right to personal liberty and privacy; however, the case was referred to a larger bench without the passing of any interim order.[23] It was also clubbed together with the Sabarimala temple case, which referred the matter to a seven-judge bench for further consideration.[24]
The government maintains that the necessary and existing laws in place are sufficient to curb the practise of FGM/C through the Indian Penal Code and the Protection of Children from Sexual Offences Act.[25] They argue that Section 3 of the Protection of Children from Sexual Offences Act[26] and Section 375 of the Indian Penal Code is sufficient to provide protection against female genital mutilation/cutting.[27] However, since the POSCO Act fails to cover FGM committed against adult women, it is not sufficient to curb the practise or provide protection to women who go through the procedure. Section 324 and 326 of the Indian Penal Code provides for punishment for causing harm and grievous hurt, however, that is not sufficient to curb FGM/C in India.
Conclusion:
Female Genital Mutilation/ Cutting affects a women’s health and has long term implications, including both physical and psychological repercussions. It is imperative for India to take steps to address the issue, both in terms of legislation and raising awareness amongst religious communities who perform Female Genital Mutilation/Cutting. The United Nations General Assembly Resolution 67-146 empathises on eliminating the practise of female genital mutilation/cutting in communities. Further, it states that FGM/C is “an irreparable, irreversible abuse that impacts negatively on the human rights of women and girls”.[28]
Since the practise is also performed by highly educated individuals who associate FGM/C with religion, the government needs to enforce strict rules and regulations. Spreading awareness on female genital mutilation and educating more people about the health implications of the procedure must be an obligatory measure taken by the government. There must be a comprehensive piece of legislation on the same which criminalises the practise and enforces harsh punishments for any medical practitioners who practises it. The government must protect females against inhumane practises which affect their bodily integrity and privacy. Furthermore, as demonstrated in the essay, while the Indian Penal Code and the Protection of Children from Sexual Offences Act exists, India needs legislation which criminalises female genital mutilation/cutting.
Disclaimer: The opinions expressed in this post are those of the authors, and do not reflect the views or opinions of the Durham Asian Law Journal.
[1] The World Health Organisation, ‘Female Genital Mutilation’, <https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation> Accessed 22th June, 2020. [2] Ibid. [3] The World Health Organisation, ’The management of health complications from female genital mutilation’ < https://apps.who.int/iris/bitstream/handle/10665/206437/9789241549646_eng.pdf?sequence=1> Accessed 25th June, 2020. [4] The World Health Organization (n 1). [5] The World Health Organisation (n 1). [6] 18 US Code § 116 <https://www.law.cornell.edu/uscode/text/18/116> Accessed 22nd June 2020. [7] Crimes Amendment Act 2014 No 15 <https://www.legislation.nsw.gov.au/acts/2014-15.pdf> Accessed 23rd June 2020. [8] A2 v R; Magennis v R [2018] NSWCCA 174. [9] The Female Genital Mutilation Act 2003 < http://www.legislation.gov.uk/ukpga/2003/31> Accessed 22nd June 2020. [10] Sudan Criminalises FGM < https://www.aljazeera.com/news/2020/04/sudan-criminalises-fgm-punishable-3-years-prison-200430184658536.html> Accessed 21st June, 2020. [11] United Nations Human Rights Office of the High Commissioner, Article 24, Conventions on the Rights of Child < https://www.ohchr.org/en/professionalinterest/pages/crc.aspx > Accessed 22nd June, 2020. [12] Amnesty India < https://amnesty.org.in/female-genital-mutilation-in-india/ > Accessed 18th June, 2020. [13] FGM in India< https://www.indiatoday.in/lifestyle/people/story/female-genital-mutilation-india-clitoris-pleasure-muslim-bohra-community-1162510-2018-02-06 > Accessed 20th June, 2020. [14] The Clitoral Hood A Contested Site <https://www.wespeakout.org/site/assets/files/1439/fgmc_study_results_jan_2018.pdf > Accessed 18th June, 2020. [15] Amnesty International (n 11). [16] < https://indianexpress.com/article/india/no-official-data-on-existence-of-female-genital-mutilation-in-india-centre-tells-sc-5001780/> Accessed 17th June, 2020. [17] Vishaka v State of Rajasthan (Air 1997 Sc 3011). [18] Childline India Foundation v Alan John Waters [2011] 6 SCC 261. [19] Indian Young Lawyers Association v State of Kerala [1964] 2 SCR 496. [20] The Commission v Sri Lakshmindra [1954] AIR 282. [21] The Durgah Committee v Syed Hussain Ali [1961] AIR 1402. [22] Protection of Women against Atrocities < http://www.hcmadras.tn.nic.in/07112013mba.pdf > Accessed 21st June 2020. [23] Sunita Tiwari v Union of India [2008]. [24] Kantaru Rajeevaru v Indian Young Lawyers Association [2020]. [25] Ambika Pandit, ‘No new law for FGM’ < https://timesofindia.indiatimes.com/india/no-new-law-for-now-it-is-pocso-and-ipc-to-curb-female-genital-mutilation/articleshow/65203182.cms > Accessed 24th June, 2020. [26] Protection of Children from Sexual Offences Act, India Code (2012). [27] Section 375, Indian Penal Code, Central Government Act. [28] United Nations General Assembly, Resolution 67-146 <https://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/67/146 > Accessed 26th June, 2020.
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