Section: B
Category: Article
Paper Code: RA-KB-17
Page Number: 302 - 311
Date of Publication: February 10, 2021
Citation: Dr. Karavi Barman, Female Genital Mutilation- An Appeal for Legislative Response in India to Outlaw the Menace, 1, AIJACLA, 302, 302-311, (2021), https://www.aequivic.in/post/aijacla-female-genital-mutilation-an-appeal-for-legislative-response-in-india-to-outlaw-the-menace.
Details Of Author(s):
Dr. Karavi Barman, Assistant Professor, N.E.F Law College, Guwahati
ABSTRACT
Female Genital Mutilation is a heinous crime committed against women and often goes unreported. It is commonly a practice that involves cutting, pricking, removing, and sometimes sewing up external female genitalia for non-medical reasons. It is described as gender-based violence and is most common globally. This practice is based on illogical and irrational justification and hence it is the need of the hour to eradicate the menace by bringing beneficial legislation in India. This paper is aimed at developing a holistic approach on the part of not only the political heads of the nation but it makes a humble attempt to imbibe a sense of belongingness as a whole.
KEYWORDS
Female Genital Mutilation, Gender-based Violence, Beneficial legislation
INTRODUCTION Female Genital Mutilation, one of the darkest secrets in India, is the most devastating disease in the cycle of human history.[1] This violence against young girls and women is catering to the attention in contemporary society. The saddest part of this painful process is the fact that it is a practice being done to women by other women. The United Nations have declared this practice as a violation of human rights but there is no such ban in India even though it constitutes a threat to their health and life. With the era of globalization, human values have been degrading to the utmost, portraying Indian women as a weightlifter of societal norms and values. On the contrary, the counter-part is bestowed with no imposing obligations. Almost half of the woman population experiences unwanted sexual advances and thereby results in physical, psychological, and sexual harm and hence acts as an individualistic attack on human rights violation. From time immemorial, women are perceived as an embodiment of peace and culture and at the same time, she is liable to promote measures for family welfare- be it in the form of childbearing machinery or pave way for sexual or reproductive means in the form of a heinous evil in the society- female genital mutilation. As the name signifies, it is traumatic and horrific and deserves an attitudinal change in the mindset of the masses including the literate class. This paper attempts to call for abandonment of this barbarous practice in India through appropriate steps on the part of various organs of the government- Legislature, Judiciary, and Executive. The researcher gives an insight into the issue and dwells on the fact that a sense of belongingness should come from within and protective discrimination measures under the Constitution should be used to safeguard females of tender age.
STATEMENT OF THE PROBLEM Dignity is the preambular mandate of our Constitution. Hence, in a welfare state, people are not expected to be compliant only with the process of criticism. The burning issue relating to young females has not much come into the limelight and has not much been discussed in open forums as people often hush up themselves on such issues. Recently, there were reports on such practices in Mumbai. It urgently deserves a legislative response as there is not a single law in India to fill the vacuum and prevent this evil practice. Despite the international laws and conventions, this evil is widely practiced in India either in the name of culture or in the name of religion or as a way to cleanse a girl from impure thoughts and desires. The judiciary has widely condemned this practice out rightly rejecting it to be an essential religious practice in any community or religion. Moreover, unlike male circumcision, it does not have any beneficial health effects. However, to avoid anonymity, a specific law is the need of the hour to attract penal provisions in India in this regard.
OBJECTIVES OF THE STUDY 1. To study the various factors behind the deeply rooted evil in the society. 2. To examine the existing rules, customs, and traditions in this practice. 3. To study the international perspectives on this issue. 4. To examine the judicial observations in India. 5. To suggest the need for law in India to curb the unwarranted tendencies, thereby bringing a holistic approach.
OPERATIONAL DEFINITIONS OF THE KEY CONCEPTS Female Genital Mutilation: The World Health Organization (WHO) defines female genital mutilation as “all procedures that involve partial or total removal of the external female genital or other injuries to the female genital organs for non-medical reasons”.[2] Human Rights: Human rights are those rights that every individual requires to survive peacefully in any society as a consequence of being human.[3] Gender-Based Violence: The violence committed on a woman by the counterpart or violence committed by a woman against another. It is one of the most unwarranted tendencies on the part of elderly women who tend to practice injustice upon the young females of the country.
METHODOLOGY The researcher has adopted both doctrinal and non-doctrinal methods for the study. To achieve the first and the second objectives, both methods are used. The available online reports have been thoroughly examined by the researcher. The researcher had conversations with the lawyers, academicians, and journalists dealing with this issue. However, no direct interview with the victim could be made. To achieve the third and fourth objectives, the doctrinal method was used. A wide range of bibliographical sources from different scholarly articles, academic journals, conference papers, and publications were visited. Even newspapers played a significant role to contribute to the researcher’s knowledge. The doctrinal as well as non-doctrinal methods were used to analyze the fifth objective.
GENESIS OF FEMALE GENITAL MUTILATION Female Genital Mutilation, also called female genital cutting[4] is practiced for two thousand years ago. It has been causing enormous harm to the overall health of more than two hundred million women and girls across the globe. Communities practicing this evil, consider it to be an essential religious practice. Some communities show that FGM predates Islam and Christianity whereas others trace its origin to the 5th century BC Egypt, where infibulations were referred to as ‘Pharaonic curcumin’.[5] Historians such as Herodotus claim that in the fifth century BC, the Phoenicians, the Hittites, and the Ethipians practiced circumcision. These rights were practiced in tropical zones of Africa, in the Philippines, by certain tribes in the Upper Amazon, by women of the Arunta tribe in Australia, and by certain early Romans and Arabs. In Western Europe and the United States, in the 1950s, clitoriductomy was practiced which was believed would cure ailments like hysteria, epilepsy, mental disorders, masturbation, nymphomania, and melancholia. Hence this practice is followed across the continents. World Health Organization classifies four types of FGP’s[6] 1. Clitoridectomy,[7] 2. Excision,[8] 3. Infibulation,[9] and 4. The fourth type includes all other harmful procedures to the female genitalia for non-medical purposes like pricking, piercing, incising, scraping, and cauterizing the genital area.
GLOBAL SCENARIO OF FEMALE GENITAL MUTILATION The impact of Female Genital Mutilation is a clear depiction of the scenario of the gross violation of the human rights of women and children. Since the practice is done mostly on girls below the age of eighteen years, it is also a violation of rights enshrined in the United Nations Convention on the Rights of the Child 1989 (UNCRC) and strictly violates the doctrine of security theory. It is a sheer violation of the guarantee on non-discrimination. Article 1 of CEDAW defines distinction as- “any distinction, exclusion or restriction made based on sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, based on equality of men and women of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field ”. National Instruments and Human rights conventions including the Universal Declaration of Human Rights 1948, ICCPR, and International Covenant on Economic and Cultural Rights (ICESCR) condemn this practice as gender discrimination. The United Nations Convention on Rights of Persons with Disabilities, 2006 and in India ‘The Rights of Persons with Disabilities Act, 2016 describes it as an impediment since there is sensory impairment. In a Joint Statement issued by the WHO, UNFIA AND UNICEF, in 1997, Female Genital Mutilation is described as ‘all procedures that involve or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.[10] The WHO records that the practice of FGM is most prevalent in twenty-nine countries, based in Africa and the Middle East. Some African countries have passed laws to tackle this problem.[11] Among the African countries with laws prohibiting FGM, penalties range from fines to a minimum of three months imprisonment. Kenya makes FGM penal offense attracting punishment up to three years’ imprisonment.[12] But, six countries – Chad, Liberia, Mali, Sierra Leone, Somalia, and Sudan are yet to pass legislation banning this evil practice. A law is warranted to act as a strong messenger to prohibit the practice. Uganda also sets the example of criminalizing FGM.[13] Certain Ethnic groups in Asian countries also practice Female Genital Mutilation including communities in India, Indonesia, Malaysia, Pakistan, and Sri Lanka. In the middle east, the practice occurs in Oman, United Arab Emirates, and Yemen as well as in Iraq, Palestine, and Israel. (UNICEF, 2015) In South America, certain communities are known to practice this evil practice in Columbia, Equadon, and Peru. In many western countries including Australia, Canada, Europe, the United States, and the United Kingdom, Female Genital Mutilation is practiced amongst diaspora communities from countries where the practice is common.[14] In Egypt, FGM is banned since 2008 but social pressures make it still a norm. But, Jimal Nadal, the UN Population Fund’s (UNFPA) representative in Cairo stated that the rate in Egypt is so high that if it could be eradicated in Egypt then it could get rid of one-fourth of the cases worldwide. In Egypt, there is no age set at which FGM is performed as toddlers as well as those who reach puberty are mutilated. For the family, the mutilation is often a cause for celebration, with daughters' hands painted with henna. However, for the daughter herself, it is a severe psychological trauma leading to bleeding for several days and at worst, death. It is a nightmare but some Muslims believe it as a religious requirement and Christians practice it for cultural reasons. It also serves as a means of extra income in Europe. Ahmed Almashady, a doctor in Egypt compared it with nails. He said- 'If your nails are dirty, don’t you cut them?’ Former Egyptian President Mohamed Morsi refused to condemn FGM during his time in power. However, a shift in attitude is the recent trend where women no longer feel insecure to openly oppose this mechanism. In the UK, FGM is a felony and the matter has come into the forefront as a child protection issue. The Female Genital Mutilation Act 2003 prohibits FGM.[15] The Serious Crime Act 2015 amended the 2003 Act to insert new provisions to extend extra-territorial jurisdiction for FGM and introduce FGM protection orders. Assisting a girl or woman to mutilate her genitalia, regardless of her nationality is an offense and would include within its purview taking a girl abroad to be subjected to FGM.[16] England and Wales have implemented laws declaring FGM as a gross violation of the human rights of young women and girls. The onus is placed on the professionals to have contact with potential victims to report the crime and failure of this could put their jobs at stake. In Australia and New Zealand, FGM is prohibited by specific legislation and there are provisions for mandatory reporting of children at risk. It specifies that it must not be performed in any form by doctors, midwives, nurses, or any other persons.[17]In France, Female Genital Mutilation is prohibited under the French Penal Code. In 1997, French became the first European Country to institute legal proceedings under Article 222-9 of the French Penal Code covering acts of violence “carry mutilation of permanent disability.[18] In the USA, FGM statutes were enacted between 1996 and 1999. The deeply ingrained cultural attitudes underlying FGM cannot be changed simply by outlawing the practice. Change in the mindset is the need of the hour.[19] Until August 2019, thirty-five states have made specific laws that prohibit FGM, while the remaining fifteen states have no specific laws.
FGM AND THE GAP IN INDIA Promiscuity and Cultural Criminology are the major reasons in India identified with ‘cutting with the blade by heating the knife on a gas stove’. Women had always been identified as the second-grade human being. Be it in Masjid or Satras, women are still prohibited from entering and the emancipation of women is far behind reality. The plight of the young widows is pitiable and restitution is a much-needed reform. Talking about the issues of female genital mutilation, people want to shield the cruel practice for religious reasons but Koran or any religious scriptures doesn’t mention it. Harinder Baweja, editor, special projects throws an illustrative picture on this heinous act through the daily, Hindustan Times. She gives a clear projection of the trauma that a lady experiences when the hot knife is slicing the clitoris, thereby leading her to shriek in pain. In India, this practice is prevalent among the Muslims in Bohra Community and Mumbai abounds with untrained midwives who continue scaring young girls between the age group of five to seven years. For a long time, it was kept secret but with the rising petitions in Mumbai, the crime has come to the forefront.[20] Though in India, various forms of violence against women are dealt with in the Indian Penal Code, 1860, a specific provision particularly introducing stringent measures on this practice is necessitated by the circumstances prevailing in the country. Section 319 to Section 326 and Section 375, explanation of the Indian Penal Code, addresses varying degrees of hurt and grievous hurt and sexual offense. Section 324 and Section 326 of the Indian Penal Code deals with voluntarily causing hurt and voluntarily causing grievous hurt but it is not explicitly made an offense under the Indian Penal Code. However, the police are obligated to register a case under Section 326 of the Indian Penal Code.[21] “Section 3 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) that addresses penetrative sexual assault by any person on any child, inter alia defines it as insertion of any object into the vagina of the girl.” Newspaper reports indicate the plight of certain Muslim female from Bohra community namely Aarefa, a Bohra Muslim, a journalist was mutilated at the age of six, Zehra was brought to India from the U.S for mutilation, Masooma, another Muslim girl, described how they were lured by their relatives- mothers, grandmothers and were cut only as a tradition or in the name of improving the reproductive system. The pain and the trauma they experienced was immeasurable and can hardly be quoted. The ‘khatna’, as the Bohra’s chose to call has come into the limelight after the victims chose to come forward and voice out their sufferings by strongly opposing it and they clearly state that there are no scientific reasons or basis for this.[22] The main reasons as they speak out her fidelity and marriage as an institution has to hold up and so that she doesn’t go astray. They were victims of mindless tradition and systematic practice. Shahida, a public health professional, and a child rights lawyer were protected by her mother but her search is on to grasp as to why her community is so harsh to their daughters and why such things are ingrained in the culture. Emancipation of women should not only be in the form of slogans but removal of patriarchal syndrome and an element of rationality is a must for the changing trend.
JUDICIAL OBSERVATIONS IN INDIA In the case of Anuj Garg V Hotel Association, 2008 (3) SCCI, the doctrine of security of women was stressed. The court brought about the ‘anti-stereotyping principle’ which is the foundation of American Jurisprudence on sex equality. The Court clearly said that the traditional cultural norms embodied in the legislation cannot prevail over constitutionality guaranteeing privacy rights. The court adopted strict scrutiny, intermediate scrutiny, and proportionality.[23] The Supreme Court on July 09th, 2018 questioned the female genital mutilation practice of the Dawood Bohra Muslim community and stated that it directly violates the bodily integrity of a girl child. Chief Justice Deepak Mishra was told by Attorney KK Venugopal, that this practice causes irreparable harm to a girl child and needs to be banned. The Senior advocate A M Singhvi appearing for a muslin group appealed to refer the matter to a Constitutional Bench as it is essentially a practice of the community. He referred to the practice of male circumcision- ‘khatna’ in Islam and claimed it to be allowed in all countries. A Delhi-based lawyer Sunita Tiwari has examined the issue and has sought a complete ban on it condemning it as inhuman practice throughout the country. This practice is against the ‘UN Convention on the Rights of the Child, UN Universal Declaration of Human Rights of which India is a signatory as it results in permanent disfiguration to the body of a girl child. The Bench further stated- “It violates the rights of the child and human rights. It also violates the Universal Declaration of Human Rights and is a crime in the United States of America under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and now a crime in Australia and some other countries as well”.[24] On 14th November, 2019 the Supreme Court of India referred the case to a seven-judge Constitutional Bench. The Supreme Court ruled that the debate on women's entry into the temple overlapped with other cases about gender and religious rights that are pending before the court including the woman’s entry into mosques and fire temples and female genital among Dawoodi Bohras. The majority judgment stated that- “The issues arising in the pending cases regarding the entry of Muslim Women in Durgah, of Parsi women, married to a non-Parsi in the Agyari and including the practice of female genital mutilation in Dawoodi Bohra Community..may be overlapping and covered by the judgment under view. The prospect of the issues arising in those cases being referred to a larger bench cannot be ruled out…The decision of a larger bench would put at rest recurring issues touching upon the rights flowing from Articles 25 and 26 of the Constitution ”. However, there were dissenting opinions of the minority judges who ruled that the review petitions should be examined on a case-by-case basis, rather than clubbing it together.[25]
PUBLIC OPINION AND AWARENESS IN INDIA People in India are cautious regarding the issue which is vivid by the petitions filed in the High Courts and Supreme Court, newspaper clippings, and reports in the journals. Eminent advocates from different fields condemn the act as inhuman. FGM has both short term and long term ill effects on the health and the psychological wellbeing of the victims. Since anesthesia is rarely used, it is entirely painful[26]. Samya Bharadwaz, Amar Axom journalist opines that certain superstitious beliefs in our society has led to such inhuman tortures among young females. Lack of modern education is one of the vital factors responsible for it. Even the government does not readily act on curbing such practices as it would act as an impediment on their vote banks. Women in our country cannot be allowed to suffer in the name of false religious beliefs.
CONCLUSION AND SUGGESTIONS Every organ of the government has to function in a welfare state like India and every attempt should strive towards the removal of the evil- ‘Female Genital Mutilation’. The Fundamental Rights and the Directive Principles of State policies are for the betterment of all humans irrespective of any gender discrimination. The role of various non-governmental organizations, human rights activists, and academicians are worth mentioning in this regard. They should not remain confined only to stereotypical beliefs and policies. Rather, they should try to achieve something impossible thereby fulfilling the requisites to reach the true mission and vision of Constitutional ideals. The following suggestions are put forwarded by the researcher in this regard- 1. The role of academicians in removing such evil practices in society is pertinent and they should not remain content only by criticizing it. Academic endeavor is the order of the hour. 2. Innovative revivalism of Indian culture and heritage is the need of the hour. The joint venture of the legal stalwarts, educationists, social services, researchers, policymakers, school governors, journalists, and other concerned citizens is the need of the hour in eradicating the felony. 3. The leaders in the society must show the light to the people so that they are not lured by obsession with other’s culture. The legislature and judiciary must pave the way to achieve the goal of reformation. 4. Awareness camps and training should be organized so that every person is educated of the ill effects and impact of female genital mutilation thereby imbibing a spirit in them to curb the tendencies. 5. ‘Tamasho ma jyotirgamaya’- ‘leading from darkness to light’- should be the ‘peace mantra’ of every intellectual human in a state for its well being and all-round development. In the words of Rabindranath Tagore- “Where the mind is without fear and the head is held high……..where the clear stream of reason has not lost its way………into that heaven of freedom, my father, let my country awake”.,
[1] India’s dark Secret: Female Genital Mutilation, (Oct. 2020, 22, 09:30 PM), https://you. Tube/MKXXVilKCwc. [2] Female Genital Mutilation- an international legal perspective, International Bar Association the voice of legal profession, (Oct. 2020, 22, 10:30 PM), www.ibanet.org. [3] Kalita Mallika, A case study on the victims of Domestic violence in Assam with special reference to Educated Women, E-ISSN No: 2454-9916, 4(5), May 2017, (Oct. 2020, 22, 11:40 PM), https://www.academia.edu [4] It is the procedure that involves partial or complete removal of the external female genitalia another injuryury to the female genital organs for cultural or non-medical reasons. [5] FGM and the Law Around the World, 19th June 2019, (Oct. 2020, 22, 01:30 AM), https://www.unfpa.org/resources/female-genital-mutilation-fgm. [6] The Law and the FGM, An overview of 28 African Countries, September 2018, Thomson Reuters Foundation. [7] This means a partial or total removal of the clitoris and in rarest of rare cases only the prepuce. [8] It is the partial or total removal of the clitoris and the labia minora, (the inner folds of the vulva) with or without excision of the labia majora (the outer folds of skin of the vulva). [9] It means narrowing of the vaginal opening through the creation of a covering seal. The seal is formed by cutting and repositing the labia minora, or labia majora, sometimes through stitching, with or without removal of the clitoris. [10] Id. [11] Supra note 4 -These Countries include Benin, Burkino Faso, Central African Republic, Chad, Cote d’ Ivoire, Democratic Republic of Congo, Djibouti, Egypt, Ethiopia, Eritrea, Gambia, Ghana, Guinea, Kenya, Liberia, Mali, Mauritania, Niger, Nigeria, Senegal, Sierra Leone, Somalia, Sudan, Tanzania, Tago, Zambia and Uganda. [12] FGM And the Law Around the World- Equality Now, (Oct. 2020, 30, 08:30 PM), https://www.equalitynow.org. [13] African Countries urged to toughen laws on female genital mutilation- Reuters, (Nov. 2020, 01, 07:15 PM), https://www.reuters.com. [14] Ebah Emmanuel, Female Genital Mutilation (FGM): A Deadly Degrading Painful Practice, Divine Spark Publication, ASIN:BO16QYF6SE, 30th Nov. 2015. [15] The Act states that any person found guilty of an offense under this Act shall be liable to a maximum penalty of a fine or imprisonment up to fourteen years or both. [16] Female Genital Mutilation legislation in UK, Bawso, (Nov. 2020, 01, 09:30 PM), https://bawso.org.uk>uploads. [17] Female Genital Mutilation- RANZCOG, (Nov. 2020, 01, 12:00 AM), https://www.ranzcog.edu.au>. [18] Supra note 14. [19] Legislation on Female Genital Mutilation in the United States, (Nov. 2020, 03, 05:15 PM), https://www.reproductiverights.org>. [20] India’s Darkk Secret: Female Genital Mutilation, Hindustan Times. [21] Supra note 9. [22] Supra note 4. [23] Anuj Garg V Hotel Association of India and Others, 6 De, 2007. [24] Supreme Court questions practice of female genital mutilation- Times of India, (Nov. 2020, 03, 06:45 PM), https://m.timesofindia.com/India/supreme-court-questions-practice-of-female-genital-mutilation/amp. [25] Id. [26] The short-term health effects are excessive bleeding, swelling and inflammation in the genital area, infection, urinary problems and in some extreme cases, even death. The long-term consequences include chronic genital infection, recurring urinary tract infection, painful sexual intercourse, complications during pregnancy, labor and delivery of the child, perinatal risks and debilitating psychological effects like post-traumatic stress disorder and depression.