This article has been authored by Neelanshi Gupta, a first year student at National Law University, Delhi.
Female Genital Mutilation (“FGM”) refers to female circumcision common in many Jewish and Islamic communities of Africa, Asia and, Middle Eastern countries. FGM is a practice of ritual cutting of the external female genitalia of young girls, often ranging from infancy to fifteen years of age usually before they hit puberty. This process is carried out for non-medical reasons and has no known medical benefits. It differs in practice as followed by different communities, proving extremely harmful consequences on young girls even after they have become grown women. FGM can oftentimes be fatal due to it being carried out by a blade or a traditional circumciser which is generally unsterilized. This often leads to extreme discomfort in walking, urinating and menstruating, and may cause the development of cysts with risks of recurrent infections and sepsis. According to certified doctors, the act of removing external genitalia the way the faith or community demands is a specialized task requiring precision so as to not risk the life of the child, but it is still done by untrained men and women who go about this procedure without due care or responsibility.
Causes and consequences of FGM
The practice of FGM is embedded and rooted in gender inequality and has its foundation in the society wanting to control women’s sexuality, ensuring women’s pre-marital virginity and prohibiting them from performing any extra-marital sexual acts. Upholding the community’s perception and societal ideals of what a woman’s, purity, and beauty is or should be is also one of the major reasons for carrying out FGM. A woman’s sexuality is therefore seen as a subject of the community’s honour and respect and those who oppose this practice are socially excluded from their community. FGM practitioners believe that when a girl undergoes circumcision, she is being de-masculinized and any remaining traces of androgyny are being removed thereby sealing any question regarding the sex of the child. The family gets to decide whether the procedure that was done was enough to protect the modesty and chastity of the girl and the family. If they are not satisfied, the procedure is repeated. This establishes how women are not given any autonomy over their own bodies since the day they are born and how they are just a puppet in the hands of the community. There are several reasons which are given to justify why FGM is practiced by certain communities. It includes psycho-sexual reasons (to control women’s sexuality), hygiene reasons (female genitalia are considered dirty), religious reasons, and socio-economic reasons (FGM is a prerequisite for marriage in communities where the woman is dependent on the man economically). The consent of the girl or woman is immaterial in such circumstances, this betrayal that they often experience at the hands of their own family leaves them with many psychological issues including but not limited to depression, anxiety, and post-traumatic stress disorder (PTSD).
The Indian context
Female Genital Mutilation has its roots in India too; it is practiced by some Islamic groups, but mainly by the Dawoodi Bohra community which is a sub-sect of Shi’ite Islam. It is a practice that has been successfully kept under the wraps and away from the public eye for a long time but this does not make it is less dangerous to women and girls or less dehumanizing. Like all the communities practicing FGM have given this practice a name by themselves, the Dawoodi Bohra community calls this practice “Khatna”, “Khafz” or “Khafd”. Genital mutilation is the reality of thousands of women of the Dawoodi Bohra community, and the most ironic fact about ‘Khafz’ is that it is done by elder women of this faith who are oblivious to the reason behind this practice. The repression of autonomy and sexuality of women of this community has been going on for hundreds of years and is still prevalent. Ignorance of the real rationale behind the practice is accepted as the norm and the practice is continued just for the sake of tradition.
In India, the rationale behind such practice is to repress and suppress the sexual urges of young women and girls, so that they maintain their purity and chastity. The part that is “nicked” or removed is the clitoral hood which, according to the Bohra women is an immoral lump of flesh that leads to sinning, and therefore, should be removed. This inhuman practice is defended by the spiritual leaders and elders of the faith on the pretext of it being a way of maintaining religious purity, as was written in their religious texts over a thousand years ago. In most communities, this practice is carried out on girls and young women, and not men or boys as it is expected and required by a woman to be chaste even if she has to go through these dehumanizing procedures to ensure that. This issue of gender inequality and refusal of bodily autonomy takes on an even monstrous guise when circumcision of boys is included for fulfilling the religious tenets. This becomes a human rights issue as in the name of tradition, tampering with minor girls’ and boys’ genitals is accepted and encouraged.
Voices against/for FGM
Internationally, the practice of FGM is considered as a gross violation of the human rights and the health of girls and women. There have been increasing voices of opposition against the practice of FGM due to the awareness and opening up of the survivors of FGM. Such individuals have been leading these conversations and believe that this practice is a form of grave abuse on young minds and bodies. The fight against the practice of FGM and its legality has been continuing for a long time but recently a ray of light came from Sudan where FGM was outlawed and strict punishment is to be imposed on those who violate this law.
This is just one of many wins that activists and feminists have achieved before the current situation improves. India too, taking inspiration from such laws, should now stop denying the existence of FGM which exists in the Dawoodi Bohra and other small communities. However at present, not only is there a dearth of legislation to resolve this issue, also there does not exist any accurate data on the extent of FGM in India. The Ministry of Women and Child Development reported in December 2017 that there is no official data or study which supports the existence of FGM in India. Terms like FGM, “Khafz” are not legally defined. Even though an event of FGM or “khafz” could possibly be prosecuted under existing criminal laws like Section 3 of Protection of Children from Sexual Offences (“POCSO”), it is not a certainty. This not just leads to an unsafe and unequal environment for girls but also prevents the country from having a strict provision against a crime like FGM. The practice of FGM in India is supported by ‘The Dawoodi Bohra Women for Religious Freedom’ (DBWRF) who contend that “khafz” is an essential part of their belief, custom, and religious right which is protected under Article 25 (right to profess, propagate and practice one’s religion) of the Constitution of India and that it is a harmless procedure which cannot be called as “mutilation” in any circumstance even after the Shirur-Mutt case and subsequent judgments.
On an International level, FGM is described as violence against women in Article 2 of the 1993 Declaration on the Elimination of Violence Against Women. Furthermore, Article 4 of the 1993 Declaration on the Elimination of Violence Against Women allows States not only to condemn but also to restrict individuals from employing any custom, tradition, or religious practice in order to escape their duty to eradicate such violence. This same practice is opposed by many groups, NGOs and men and women including Bohra women in India who have been survivors of “khafz”. Campaigns have been initiated to start conversations about the secretive and deceitful act of “khafz” to make the public aware of this practice. Several petitions have made their way to the Ministry of Women and Child Development and the issue of the continuing practice of FGM in India was also recently raised in the United Nations. Furthermore, Article-21 of the Indian Constitution which provides for a right to life when read in accordance with Article 51 A (e), imposes on every citizen by way of fundamental duty the responsibility to renounce practices derogatory to the dignity of women. Nonetheless, the issue was raised tangibly in a Public Interest Litigation (PIL) filed by Sunita Tiwari in the Supreme Court which sought a complete ban on FGM in India. The PIL contended that FGM was violative of Article 14 (right to equality) and Article 21 (right to life and personal liberty) under the Constitution of India. In response to this PIL, the five-judge bench initially set up for hearing this issue, eventually passed this case on to a seven-judge bench as this involved a question as to what constituted an “essential practice” of the community.
There has not yet been a certain decision or judgment as to whether the practice of “khafz” is legal or not, with the government standing by the contention that FGM cases can be punished under the Indian Penal Code (IPC) and POCSO. Although Section 324 and Section 326 of the IPC, which provide for punishment for causing hurt and grievous hurt, may to some degree penalize undertaking FGM, they are in no way good enough to stop the activity. It necessitates not only punishing the act of performing FGM but also punishing the act of inducing others to do so. However, certain general awareness about FGM among the public has been successful in starting conversations about this topic which was fairly under the wraps due to its connection with taboo topics like religion, sexuality and gender. The fight against this barbaric practice is long as well as tough but as long as the people are aware and are firm believers of principles of equality and justice as well as aware of their rights, this fight is not one where justice cannot be achieved.