Divya Singh Chauhan & Divita Vyas [Lawyers, High Court of Delhi]
TRIGGER WARNING: Detailed description of Female Genital Mutilation and Circumcision; Graphic Content.
The World Health Organization (WHO) delineates Female Genital Mutilation/Cutting (FGM/C)[1] as “the partial or complete removal of the external female genitalia for non- medical reasons.” Universally, FGM/C is performed on girls and women of reproductive age, from 15 to as old as 49 years of age. It is difficult to procure correct data about the magnitude of FGM/C because it is practiced covertly by several communities all over the world. It is estimated that at least 200 million girls[2] have gone through FGM/C in over 31 countries spanning across - Africa, Middle East and Southeast Asia, and most of this practice is concentrated in Egypt, Indonesia and Ethiopia.[3] Not less than 4 million girls[4] per year are at risk of undergoing FGM/C and in certain communities, some girls below 15 years of age and as young as a new-born are subjected to this practice of genital circumcision.
With the establishment of an internationally-recognized definition of FGM, came the categorization of the procedures adopted to perform the practice. Female genital mutilation is usually classified into 4 major types:[5]
“Type 1: this is the partial or total removal of the clitoral glans (the external and visible part of the clitoris, which is a sensitive part of the female genitals), and/or the prepuce/ clitoral hood (the fold of skin surrounding the clitoral glans).”
“Type 2: this is the partial or total removal of the clitoral glans and the labia minora (the inner folds of the vulva), with or without removal of the labia majora (the outer folds of skin of the vulva).”
“Type 3: Also known as infibulation, this is the 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 the clitoral prepuce/clitoral hood and glans. This procedure has to be reversed by cutting open the sealed vagina to allow intercourse and child birth, this process is called de-infibulation.”
“Type 4: This includes all other harmful procedures to the female genitalia for non-medical purposes, e.g. pricking, piercing, incising, scraping and cauterizing the genital area.”
HISTORICAL ACCOUNTS OF FGM
Medical Historian and President of California Healthcare Institute, David Gollaher [i] opined – “There’s no way of knowing the origins of FGM, it appears in many different cultures, from Australian aboriginal tribes to different African societies.”
Even though the exact origin of the practice remains uncertain, several scholars believe that the practice has its genesis in the Ancient Egypt having found circumcised mummies from 5th Century BC. While some scholars propose that FGM was performed on female slaves in the Ancient Rome preventing the women from coitus and subsequent pregnancy, [ii] others theorize that the practice was spread across the slave trade routes ranging from the western shore of the Red Sea to the southern, western African regions by Arab traders. [iii] Some scholars claim that the practice began in Sub- Saharan Africa with the arrival of Islam [iv], however, neither Quran nor Sunnah has any mention of the practice. Hence, a multi-source origin of FGM has also been proposed by some historians with reference to its global prevalence.
UNDER-ADDRESSED EXISTENCE OF FGM IN INDIA
Female Genital Mutilation takes place in most parts of the world including India. However, its prevalence in India somehow still remains inconspicuous and under-addressed. UNICEF profiles [v] the latest available data on FGM for 31 countries from all over the world including Africa, Europe and Asia but fails to recognize the concentrated existence of FGM in India. Most prevalent in the states of Gujrat, Kerala and Maharashtra, FGM/C is commonly known as “Khatna” or “Khafz/d” in India. It is religiously practiced amongst the Dawoodi-Bohra community of Shia Muslims. The Bohra community claims that it is a ‘gender-egalitarian’ and ‘women empowered’ community and there is a near 100% literacy rate including both men and women.[vi] The community states that they place men and women on an equal footing and yet defend the practice of FGM/C as an integral part of the Dawoodi-Bohra religious denomination of the Fatimid school of thought in Islam. [vii] The practitioners often quote the Da'im al-Islam (a 10th century book on Jurisprudence) to justify khatna. [viii]
Ismail Poonawala’s English translation of Da’im al-Islam describes the verses for common understanding: “O women, when you circumcise your daughters, leave part (of the labia or clitoris), for this will be chaster for their character, and it will make them more beloved by their husbands”. [ix] It is therefore, very clear that the community believes it to be their religious obligation to circumcise the clitoral hood and maintain spiritual and physical piety and chastity of their women. However, they refuse to accept that the clitoral nicking or cutting performed by their community is equivalent to Type 1 Female Genital Mutilation on the pretext of FGM being associated with a rather brutal mutilation of female genital using unhygienic and barbaric methods. They rationalise the practise by submitting that approximately 1.6 Lakhs Indian Bohra women do not find the practise objectionable but only consider it a minor physical inconvenience. [x]
ANTI-FGM LAWS IN INDIA OR THEIR LACK THEREOF
The UN Declaration on the Elimination of Violence against Women (DEVAW) was adopted by the United Nations General Assembly in 1993. Violence against women is rooted in the structural gender inequalities and the historically unequal dynamics of power between men and women. According to the declaration, violence against women is “one of the crucial social mechanisms by which women are forced into a subordinate position compared with men.” [xi] Article 2 of the declaration provides that violence against women encompasses Female Genital Mutilation and other traditional practices harmful to women. [xii]
The United Nations Convention on Rights of the Child, 1989 (UNCRC) [xiii] comes into play, considering that FGM, as a matter of fact is practiced on minor girls.
Article 24 [xiv] of the convention lays down that traditional practices prejudicial to children should be absolutely abolished. When India ratified the UNCRC in 1992, [xv] an utmost responsibility had been reposed upon the Government by UNCRC so as to ensure that fundamental rights of children are protected and recognized. Yet, India has made no visible efforts to enact special laws to prevent and tackle the perpetuation of FGM. The Government of India maintains that for issues pertaining to violence against women, redressal can be sought under relevant provisions of the Indian Penal Code, 1860 (IPC) [xvi] namely under Section 319 to 326 outlining numerous forms of hurt and grievous hurt. FGM does not find any specific mention as an offence under IPC and on a complaint made to the police, a case has to be registered under section 326 IPC [xvii].
Other than the IPC, the Prevention of Children from Sexual Offences Act, 2012 (POCSO) prescribes that any sort of penetration or manipulation, either complete or not compete, is an offence of sexual assault. [xviii] However, milder categories of FGM cannot fall within definition u/s 3 and it will be reduced to mere interpretations by the judges.
Lamentably, as far as the redressal mechanism for victims of FGM is concerned, the aforementioned legislations are the only possible help. These laws only allow punishment, not prevention. It does not protect females from the actual threat of mutilation of their genitalia, which is a matter of extreme concern.
An ongoing Public Interest Litigation filed by an advocate before the Supreme Court, titled Sunita Tiwari v. Union of India & Ors, WP (C) 286/2017 has sought a ban on this gruesome practice. In this case, it is argued that the practice of Khatna/ Khafz is closely tied to FGM and is nothing but discriminatory against women. It is not just a gross violation of Human Rights but also an infringement of their constitutional rights to equality, privacy, and personal liberty. In response to this, the Ministry of Women and Child Development told the Supreme Court of India that “At present there is no official data or study which supports the existence of FGM in India.” [xix]
A report on FGM by WHO, has classified FGM as an extreme violation of the human rights of girls and women. [xx] Additionally, it holds FGM as a severe health concern, because it is likely to cause of infections, problems pertaining to childbirth, and other severe physical impairments in women. In 2012, the UN General Assembly adopted an undivided resolution, which had called for the elimination of FGM. [xxi] Several countries including the United States of America, United Kingdom, Australia, and many African countries, have also criminalized the practice.
On the contrary, India refuses to acknowledge the underground presence of FGM on the grounds of lack of evidence, conveniently disregarding the stories and sufferings of hundreds of victims who have publicly spoken up against the practice.
CONCLUSION & RECOMMENDATIONS
In order to combat the widespread presence of this practice, the UN General Assembly in its resolution [xxii] had put a blanket ban on FGM, urging countries to create awareness and condemn the practice. While, countries like USA [xxiii] and Australia [xxiv] have made amendments to their criminal laws, making the practice of FGM a punishable offence, India remains oblivious to the entire existence of the same. The excuse of lack of availability of data on FGM in India should be done away with and the government should take responsibility to conduct the official survey which is long due. There is also a grave need for amendment in the Indian Criminal Law by incorporating the meaning and categories of FGM/C, prescribing specific provisions for punishment of offenders and rehabilitation of victims thereof. On 10th March 2021, Brut India [xxv], a digital news platform, posted a video of a journalist and FGM survivor, Ms. Jumana Shah - appealing to the Indian Prime Minister to take serious note of the practice in India and declare it illegal. Hence, amending the penal code ought to have a ripple effect and more people might start coming forward, which in itself shall act as a catalyst in building the official data.
Personal laws or religious customs cannot be allowed to overrule the international resolutions and general legal principles recognized by civilized nations. Putting a blanket ban on the practice will go on to show that India truly stands in solidarity with the global community.
[i]Rosella Lorenzi, How Did Female Genital Mutilation Begin, Seeker, (Dec. 21 2012), https://www.seeker.com/how-did-female-genital-mutilation-begin-1766105357.html . [ii]A. Andro, M. Lesclingand et al., Female genital mutilation. Overview and current knowledge, Population 71(2) INSTITUT NATIONAL D'ÉTUDES DÉMOGRAPHIQUES (INED) 215-296 (2016). [iii]CT Ross, P. Strimling et al., The Origins and Maintenance of Female Genital Modification across Africa: Bayesian Phylogenetic Modeling of Cultural Evolution under the Influence of Selection, 27(2) HUM NAT, 173-200 (2016). [iv]See generally FGM Information: Historical & Cultural, FGM National Clinical Group, http://www.fgmnationalgroup.org/historical_and_cultural.htm. [v]United Nations International Children’s Emergency Fund (UNICEF), Female Genital Mutilation Country Profiles, (May 2020), https://data.unicef.org/resources/fgm-country-profiles/. [vi]Sunita Tiwari v. Union of India, WP (C) 286/2017, https://scobserver-production.s3.amazonaws.com/uploads/case_document/document_upload/399/Sunita_Tiwari__New__-_Written_submissions.pdf [vii] Id. at 4. [viii]Aarefa Johari, Why do Dawoodi Bohras Practice Khatna, or Female Genital Cutting?, Sahiyo, (May 19, 2017) https://sahiyo.com/2017/05/19/why-do-dawoodi-bohras-practice-khatna-or-female-genital-cutting/. [ix]I.K. Poonawala, & A.A. Fyzee, The Pillars of Islam. Da'a'im Al-IslamoOf Al-Qadi Al Al-Nu'man: Ibadat: Acts of Devotion and Religious Observances 154 (OXFORD UNIVERSITY PRESS, USA, 2006). [x]See Supra note 12 at 12. [xi]See United Nations Declaration on the Elimination of Violence against Women (1993), Violence Against Women Research Database (Aug. 2015), https://projects.iq.harvard.edu/violenceagainstwomen/publications/declaration-elimination-violence-against-women-0 . [xii]UN General Assembly, Declaration on the Elimination of Violence against Women, A/RES/48/104, (Dec.20, 1993),https://www.un.org/en/genocideprevention/documents/atrocitycrimes/Doc.21_declaration%20elimination%20vaw.pdf . [xiii]UN General Assembly, Convention on the Rights of the Child, United Nations, Treaty Series, vol. 1577, p. 3 (Nov. 20, 1989), http://www.ohchr.org/en/professionalinterest/pages/crc.aspx . [xiv] See Id. at art. 24 (States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children). [xv]India celebrates commitment to child rights with National Summit for Every Child in India at Parliament on World Children’s Day, UNICEF Press Release, (Nov. 19, 2019), https://www.unicef.org/india/press-releases/india-celebrates-commitment-child-rights-national-summit-every-child-india . [xvi] Indian Penal Code, 1860 §§ 319-326. [xvii]Rasheeda Bhagat, Ban this Barbarous Practice, Hindu Business Line, (July 29, 2014), http://www.stopfgmmideast.org/india-ban-this-barbarous-practice/ . [xviii] Prevention of Children from Sexual Offences Act, 2012 § 3. [xix]Rina Chandran, No evidence of FGM, India government tells court, appalling activists, Thomson Reuters Foundation, (Dec. 29, 2017), https://www.reuters.com/article/us-india-women-religion-idUSKBN1EN0QB. [xx] Supra note 1. [xxi]United Nations Bans Female Genital Mutilation, UN Women News, (December 20, 2012) https://www.unwomen.org/en/news/stories/2012/12/united-nations-bans-female-genital-mutilation . [xxii] Id. [xxiii]Crimes and Criminal Procedure, 18 U.S. Code § 116 (2011). [xxiv]Crimes (Female Genital Mutilation) Amendment Act No. 58 (1994). [xxv]Dear Prime Minister, End Female Circumcision in India, Brut. Media India, (March 10, 2021, 3:13 PM), https://www.brut.media/in/news/dear-prime-minister-end-female-circumcision-in-india-0a5166d5-a8cf-4a3a-8298-7024e336e0a2.