By Prerna Murarka, fourth-year law student, ILS Law College, Pune.
The debate on, whether the freedom to perform certain religious and cultural practices is protected under the Indian Constitution, is a long-drawn-out-one. One such practice, specifically elaborated by this essay, is Female Genital Mutilation. Female Genital Mutilation (FGM) is a custom, wherein the external genitalia of a girl child is removed or injured, for non-medical reasons.[i]
This article first looks at the origin and prevalence of FGM in India. By taking into consideration the pre-existing general provisions, the article seeks to ascertain whether there is a need for specific legislation to ban and criminalise the same.
What is Female Genital Mutilation?
To understand whether the problem of FGM in India is a concerning one, it first becomes important to look at the definition and types of FGM. Female Genital Mutilation, as mentioned earlier is a cultural or religious practice, which involves excision of external female genitalia for ‘hygiene’ purposes.
In a joint statement issued by World Health Organisation(WHO), United Nations Children’s Fund (UNICEF), and United Nations Population Fund (UNFPA), female genital mutilation was classified into four different types, based on the practices and procedures that are followed. These are:
- Type I: Excision of prepuce along with the removal of part or whole of the clitoris
- Type II: Excision of clitoris along with the removal of part or whole of the labia minora (inner labia)
- Type III: Also known as infibulation. This includes excision of part or whole of the entire external genitalia, along with narrowing or stitching of the vaginal opening.
- Type IV: May include pricking, piercing, incising, burning, introducing corrosive substance, and inflicting any other such procedure to the female genitalia.[ii]
Is FGM Prevalent in India?
In India, the Government has claimed that there is no record of data on FGM.[iii] Although it is important to note that since FGM is not banned by any specific legislation in India, there can be no concrete record on the number of cases,
Small scale studies conducted by numerous research organizations and individual interviews have shed light on the widespread predominance of this custom, especially within the Dawoodi Bohra community.[iv] In an online survey conducted by a Non-Governmental Organisation Sahiyo amongst the Dawoodi Bohra women, it was found out that 80 per cent of the respondents had undergone the process of FGM.[v] Thus it can be said with certainty that FGM is pervasive in India, especially among the Dawoodi Bohras. Although, in India, type I female genital mutilation is more prevalent than the other three types.
FGM is locally referred to as ‘khatna’ or ‘khafz’. It performed by traditional women circumciser called ‘Mullani’, in a private setting, on girls around the age of 7.[vi]
Can FGM Be Protected Under the Scope of Article 25 and 26 of the Indian Constitution?
Advocates of the practice have argued that it is an ‘essential religious practice’ of the Dawoodi Bohra Community in India and is therefore protected under Article 25 and 26 of the Indian Constitution, and thus cannot be criminalised. To recognise whether or not the practice of FGM is an ‘essential religious practice’, let us first draw our attention towards its origin.
The practice of female circumcision began primarily in Egypt and Yemen and came to India with the migration of Dawoodi Bohra Muslims to Gujarat in the 1500s.[vii] The practice of female circumcision is not mentioned anywhere in the Quran, however, certain Hadiths can be interpreted in a particular manner to justify the aforementioned custom.
The Quran prohibits the infliction of harm on a family member. While some Islamic Scholars argue that FGM is prohibited because of this prohibition, the others believe that FGM is justified precisely for this reason.[viii] The latter consider FGM necessary to control the female sexuality and maintain stability in the family. Thus, certain Islamic Scholars are of the view that a woman has to undergo FGM as it is for the benefit of her own family members.
It essential to note that it isn’t very clear if FGM is a religious or cultural practice. Simply because the practice is not prevalent across all Islamic sects. As it is also practised by non-Muslim communities residing in countries like Yemen and African countries like Egypt and Sudan.[ix]
The application of the ‘essential religious practice’ doctrine requires the practice to be an inalienable aspect of the religion.[x] However, there is much ambiguity when it comes to the classification of FGM as an ‘essential religious practice’ of the Dawoodi Bohra community.
In 2015, a writ petition was filed in the Supreme Court calling for a ban over its practice. The Court, however, directed the matter to a larger constitutional bench which is yet to hear the matter. [xi]
Article 25 of the Indian Constitution guarantees ‘freedom of conscience and free profession, practice and propagation of religion’. However, this freedom is ‘subject to public order, health and morality.’[xii]
The practice of Female Circumcision has a far-reaching impact on the physical, sexual and mental health of an individual. So evidently the practice of FGM is a threat to the health of the women who have to undergo the procedure.[xiii] Thus, if evaluated keeping in mind the damage it does to a woman’s health, the practice can’t be justified under Article 25.
The justification for FGM is also often premised on a deeply sexist rationale of curtailing the sexual desire a woman such that she doesn’t stray away from marital obligations.
As per article 15(3) of the Indian constitution, the state can make ‘special laws’ for women to uplift their condition.[xiv] More importantly, the freedom of religion outlined in Articles 25 and 26 of the Indian Constitution, is also subject to other provisions entailed in Part III that is to the fundamental rights of the Indian Constitution.[xv] FGM endangers the right to life and personal liberty that falls within the scope of article 21 of the Indian Constitution.
In Justice K. S. Puttaswamy v. Union of India 2018, the court held,
“The right to privacy is an intrinsic part of the right to life and personal liberty under Article 21 of the Indian Constitution.”
In the same judgement, it was elaborated that this right to privacy is also inclusive of sexual and reproductive autonomy. [xvi] When a child, who is incapable of understanding the long term consequences of FGM is subjected to it, her right to sexual and reproductive choices is taken away from her.
Accordingly, it becomes clear that in no way Female Genital Mutilation can be read within the scope of Article 25 and 26 of the Indian Constitution.
Existing Provisions in the Criminal Law
Though FGM is not banned in India under any specific legislation, certain general provisions present under the current criminal laws could protect the interest of women. Thus, Some of these are listed below and may be applicable in the case of this practice.
Varying degrees of Hurt and Grievous Hurt, under sections 319 to 326 of the IPC:
Sections 319 to 326 of the Indian Penal Code (IPC) lay down the provisions for inflicting hurt and grievous hurt on an individual. ‘Hurt’ must constitute the elements of causing bodily pain, infirmity or disease to another person. [xvii] There are seven specific types of ‘grievous hurt’, including,
“Any hurt which risks life or which causes the victim to be during the time of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.” [xviii]
FGM may render the participant incapable of performing normal bodily activities like urinating and making sexual intercourse painful. Thus, FGM can be construed as a form of hurt or grievous hurt, thus, may amount up to seven years of imprisonment, with or without fine.
Section 4 of Protection of Children from Sexual Offences: Section 4 of Protection of Children from Sexual Offences Act (POCSO) 2012, criminalises the offence of penetrative sexual assault inflicted on children below the age of 18 years.[xx]
Penetration here may, according to Section 3, include insertion of any object into the vagina of the child, to any extent.[xxi] Introduction of a sharp object in the external genitalia while performing FGM could therefore be construed as a form of penetrative sexual assault to children.
Need for Specific and Comprehensive Legislation on FGM
Even after the enactment of the act such as POCSO and certain related provisions in the IPC, there hasn’t been any discernable decline in the number of cases related to FGM. Exposing the lacunae in the existing criminal law that fails to address this offence. One of the reasons FGM has not been criminalised yet is because it is not merely a crime, but also a complex socio-cultural issue.
FGM has been prevalent in the Dawoodi Bohra community for more than five centuries and has been normalised as a religious practice. A parallel here can be drawn with the practice of Sati, wherein a woman used to self-immolate herself to death on the funeral pyre of her husband, to save the sanctity of the marriage. Both these practices are archaic and conform to the rationale of the social norms, imposing limits on women’s freedom and autonomy over her own body.
It needs to be acknowledged that while such practices are disguised as acceptable or even desired in the garb of culture. They ultimately amount to the act of murder or infliction of injury accompanied by malice on the part of the perpetrators.
Any act of crime is against the collective morals of society. However, when the members of society themselves do not believe that such practices are harmful by the logic of culture, the laws drafted to regulate such offences need to be more stringent. Thus, such concerns can only be resolved by enacting specific legislation of comprehensive nature.
Moreover, the public/private discourse in feminist legal theories[xxii] often emphasize on how issues that women face are kept confined within the private sphere of life. FGM is practised in secrecy, and the decisions to go through with the practice are often taken by the elder women of the house. If legislation countering this practice is enacted, the issue of FGM would be acknowledged and discussed in the public sphere. It will be the first step to assert political rights of women belonging to the Dawoodi Bohra community.
Lastly, international conventions such as the United Nations Convention on the Rights of the Child (CRC) and the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), make it obligatory for the state parties to make laws to curb violence against women and girl children. Thus, impelling state institutions to enact protective legislation to ensure their welfare. India is a signatory to both these conventions, therefore, it is even more essential that India fulfils its responsibility.
This article aimed to make visible that while the cruel and inhumane practice of Female Genital Mutilation happens in secrecy, it is very much prevalent in India, especially within the Dawoodi Bohras. The right to freedom of religion and propagation of religious practices does not extend to the violation of other fundamental rights enshrined in part III of the Indian Constitution.
It is high time that such traditions that oppress women must be done away with to ensure a more egalitarian society. While it is apparently a given that women have equal status and rights as men, it is only distressing that they still have to advocate and fight for it. When social norms and practices are out-dated and impose a restriction on the freedom of individuals, legal change is capable of inducing social change.
[i] Female Genital Mutilation, World Health Organization, available at: https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation (last visited on Sep 15, 2020).
[ii] Eliminating Female genital mutilation: An interagency statement, OHCHR, UNAIDS, UNDP, UNECA, UNESCO, UNFPA, UNHCR, UNICEF, UNIFEM, WHO, available at https://www.unicef.org/french/media/files/Interagency_Statement_on_Eliminating_FGM.pdf (last visited on Sep 15, 2020)
[iii] “There’s no data on female genital cutting in India, Women and Child Development Ministry tells SC” The Scroll, Dec. 28, 2017.
[iv] I was crying with unbearable pain’: study reveals extent of FGM in India, The Guardian, available at: https://www.theguardian.com/global-development/2018/mar/06/study-reveals-fgm-india-female-genital-mutilation (last visited on Sep 15, 2020)
[v]First Online Study on Khatna Conducted by Sahiyo, Sahiyo, available at https://sahiyo.com/2016/01/ (last visited Sep 15, 2020)
[vi] Supra Note 4
[vii] Yasmin Bootwala, “A Review of Female Genital Cutting in the Dawoodi Bohra Community: Part 3—the Historical, Anthropological and Religious Underpinnings of FGC in the Dawoodi Bohras”, 11 Current Sexual Health Reports 228 (2019) .
[ix] Supra at 7.
[x] Deconstructing the Sabarimala dissent (2/3): can the contemporary relevance of a religious practice override its essentiality?, Law School Policy Review, available at https://lawschoolpolicyreview.com/2019/05/13/deconstructing-the-sabarimala-dissent-can-the-contemporary-relevance-of-a-religious-practice-override-its-essentiality/#_ftn7 (last visited on Sep 15, 2020)
[xi] Sunita Tiwari v. Union of India WP(C)No.286/17
[xii] The Constitution of India, art 25.
[xiii] Female Genital Mutilation (FGM): Frequently asked questions, UNFPA, available at https://www.unfpa.org/resources/female-genital-mutilation-fgm-frequently-asked-questions (last visited on Sep 15, 2020).
[xiv] The Constitution of India, art 15(3).
[xv] Ismail Faruqui v. Union of India, (1994) 6 SCC 360.
[xvi] Justice K. S. Puttaswamy (Retd.) and Anr. v. Union Of India And Ors., (2017) 10 SCC 1.
[xvii] Indian Penal Code, 1860 (Act 45 of 1860), s. 319.
[xviii] Indian Penal Code, 1860 (Act 45 of 1860), s. 320.
[xix] Indian Penal Code, 1860 (Act 45 of 1860), s. 375.
[xx] Protection of Children from Sexual Offences, 2012 (Act 32 of 2012), s. 4.
[xxi] Protection of Children from Sexual Offences, 2012 (Act 32 of 2012), s. 3.
[xxii] Shreyashi Ghosh, “Beyond spaces: debunking public/private divide in understanding violence against women in India” 1 Indian Journal of Gender Studies 76 (2017)