Author: Jigyasa Fonia National Law university, Odisha
Editor: Muskaan Vijay National Law university, Odisha
Introduction
Living in the 21st century and knowing that the barbarous practice of cutting female genitalia is still practiced by people is quite heart-rending. World Health Organization defines FGM as “the practice of complete or partial removal of the external female genitalia or any other injury to the female genital organs for non-medical reasons[1].” It is further categorized into following types:
Type 1: Clitoridectomy- It comprises of the procedure of complete or partial removal of the clitoral glans that is the external part of the clitoris.
Type 2: Excision- It comprises of the procedure of complete or partial removal of the clitoris as well as the labia minora, with or without removal of the labia majora.
Type 3: Infibulation- It comprises of the contraction of the vaginal opening by cutting and appositioning the labia minora/labia majora or both.
Type 4: It comprises of the other deleterious way to the female genitalia like piercing, pricking, etc.
According to the World Health Organization, no health benefits of FGM as such exists. On the other side, those females who have undergone the procedure suffer from physical, psychological, emotional, and other repercussions throughout their lives. The whole process is vicious, excruciating and draining and is carried out by incompetent midwives who have little medical knowledge. FGM leads to immediate and long-term genitourinary complications, including immoderate pain, haemorrhage, urinary tract infection (UTI), bacterial vaginosis, painful menstruation, painful urination, post-traumatic stress disorder[2]. Besides that, scarring of the vulvar region is the cause of pain during sexual intercourse.Diminished sexual gratification is another repercussion of the removal of sexually sensitive parts, together with the clitoral glans. Female Genital Mutilation creates a risk of detrimental-obstetric-outcomes, which may eventually impact the wellbeing of new-borns.
Prevalence of Female Genital Mutilation in India
FGM is also knows as ‘khatna’ or ‘khafz’ in India. Its existence is not only in Islamic countries or Africa but also in India. In India, this practice is mostly carried out by the Bohra community, a Shia sub-sect of Islam. Their estimated population in India is to be about one million and many are settled outside India too. Mumbai is abode to numerous incompetent midwives who still practice FGM and annihilates the lives of female child. This barbarous practice holds no health benefits but is considered a religious onus by the Bohra community. FGM is a clear demonstration of gender inequality and is related to those patriarchal notions about purity and modesty of women. India is perceived as a hub for the execution of FGM as it is not proscribed. This practice was a well-kept secret as it was not well-documented and no official data as such existed regarding its prevalence in India[3].
Recently, qualitative research revealed that approximately 75% of girls were forced to undergo FGM, some of them were even under the age of seven. This clearly shows the prevalence of FGM across every class. However now, a few women-victims decided to speak out and raise awareness amongst people.[4] A group of women from the Bohra community took an initiative of starting an online petition for banning FGM. In the previous year, a similar petition was led by the group which was submitted to Maneka Gandhi, who was India’s Women and Child Development Minister at that time. During that time, other Bohra women made an appeal to the United Nations requesting them to recognise India as a country where FGM is practised. In the 36th regular session of the United Nations Human Rights Council, a written submission on FGM in India was presented. This was the very first time when the issue of FGM was raised at the United Nations.
Humans Rights Violation through FGM
Midwives practicing FGM are actually violating fundamental rights of the individual on which FGM is performed. Following are the rights that are violated because of this practice –
Article 14: Equality before law[5] – Every person within the territory of India should be considered equal before the law and should be guaranteed all the fundamental rights without any discrimination by the State.
Article 15: Proscription of discrimination on the basis of religion, race, caste, sex or place of birth[6] – No one within the territory of India shall be treated differently on the basis of their ethnicity, birthplace, religion and caste by the State.
Article 21: Protection of life and personal liberty[7] – Every single person within the territory of India shall never be deprived of life and personal liberty except in compliance with the procedure laid down in law.
No specific law on this practice as such exists that becomes the sole reason for its prevalence in the counyry. Although, FGM is a crime under section 320, 322, 334, 335, 336, 337, 338 and 340 of Indian Penal Code. FGM would also be a crime under The Protection of Children from Sexual Offences Act (POCSO Act) which protects juveniles from sexual assaults.
In 2017, FGM was brought up in the apex court. The case was Sunita Tiwari V. Union of India in which a ban on Female Genital Mutilation was demanded. FGM was challenged on the ground of this practice being discriminatory against women and violating fundamental rights like the right to equality and personal liberty. Countries like Australia, the United States of America, the United Kingdom and many African countries have proscribed FGM. The arguments presented against the ban were that this practice is like a religious onus and hence is secured under Article 25 and 26 of the Constitution. The matter was then referred to a larger bench and no interim order was passed. This case further collaborated with the Sabrimala-temple case and for consideration was passed to the seven-judges bench. FGM is more than any physical injury. So, we need measures to curb this practice so that people don’t get involved into such heinous practices and persuade others too. These provisions do exist but they are not sufficient enough to eradicate FGM. Section 324 and 326 of IPC provides penalty for causing grievous hurt so this can punish the perpetrators but cannot curb this barbarous practice. And we need strict provisions so that this practice stops there and then.
Conclusion
FGM is a significant problem that is increasing all over the world. Some of the countries successfully proscribed it while some are still struggling with the prevalence of this practice. There are no specific laws that forbid FGM due to which this barbaric practice does catch everyone’s attention. A particular law regarding this subject is indispensable as it will address prosecution and ensure prevention, awareness, relief and rehabilitation. Hence, the discussion regarding this subject of having a separate legislation is incontrovertible. India should take all imperative steps to curb this heinous practice. People must understand this problem and start taking it seriously as a detrimental criminal practice, not as a religious onus.
[1] ‘Female Genital Mutilation’, World Health Organization, 3 February,2020, accessed 11 July 2020 <<https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation>
[2] Lakshmi Anantnarayan, Shabana Diler, Natasha Menin, ‘The Clitoral Hood A Contested Site’ (2018) Wespeakout, accessed 11July 2020 <https://www.wespeakout.org/site/assets/files/1439/fgmc_study_results_jan_2018.pdf>
[3] ‘Female Genital Mutilation In India’, Amnesty International, accessed 13 July 2020 <https://amnesty.org.in/female-genital-mutilation-in-india/>
[4] Harinder Baweja, ‘India’s Dark Secret’, Hindustan Times, accessed 14 July 2020 <https://www.hindustantimes.com/static/fgm-indias-dark-secret/>
[5] Article 14, The Constitution of India, 1950
[6] Article 15, The Constitution of India, 1950
[7] Article 21, The Constitution of India, 1950