A Clandestine Practice: FGM
An essay on "A Clandestine Practice: FGM" by Ravneet Kaur Juneja describes the societal barriers that act as a major reason for the continuance of this abhorred tradition.
An essay on "A Clandestine Practice: FGM" by Ravneet Kaur Juneja describes the societal barriers that act as a major reason for the continuance of this abhorred tradition. Out of many wicked societal norms that are still prevailing in our society, female genital mutilation is one of them. It majorly consists of four types. International documents such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention on Elimination of Discrimination Against Women describe the equality of laws among both genders in various aspects.
The essay attempts to explain both international and domestic laws enacted to curb this deleterious act. It is so deep-rooted that even after rising cases, India has failed to enact a law on the same. Some of the prevention/solutions to this practice are provided by World Health Organisation and the author through effective writing wants to bring the attention of the readers to the major straining issue.
Introduction
One of the basic rights of a human being that comes from his birth and remains with him until his death is human rights. Human Rights are inherent to all human beings irrespective of race, caste, creed, sex, and nationality of the individuals. For all human beings living in existence, rights are necessary for their economic development and prosperity, and harmonious living with other neighbourhoods in the world. The definition of Human Rights is mentioned in section 2(1)(d) of The Protection of Human Rights Act, 1993.
Human Rights and Indian Constitution
Human Rights are common to those countries that have signed the declarations that are part of human rights whereas fundamental rights are country specific. Fundamental rights are constitutionally guaranteed and human rights are internationally guaranteed. Fundamental Rights are enforceable by the Court of Law and Human Rights are enforceable by United Nations Organization. Human rights are very much similar to the Fundamental Rights that are mentioned in Articles 14-32 in the Constitution of India.
Some of the fundamental rights are:
1. Equality among human beings
2. Freedom of speech
3. Freedom of life and personal liberty
4. Freedom to practice any religion
Some of the Human Rights are:
1. All human beings are free and equal
2. No discrimination
3. Right to Life
4. Innocent until proved guilty
Both Human and Fundamental Rights aim at creating a fair and peaceful environment for everyone's interest.
Conflicting Customs
The peace of the country is maintained by keeping the balance of deciding as to what laws should be made and how can they be implemented in a way that the rights or customs of any section of the community are not violated.
When the issue arises between the law and the customs then there is a question as to what should prevail. The custom which is prevalent for the past infinite years or the law is for the betterment of all the people of the society. In most cases, the law succeeds but sometimes when the custom is deep-rooted in our society and also when there is no such definite law of such a custom then it becomes difficult to varnish that custom. One such age-old custom is that of 'the cut'.
Genital Mutilation/Circumcision
The issue arises when the age-old customs/traditions and laws contradict each other. Genital Mutilation is one such practice/custom. It is a system of cutting or any slightest nick to the genital organs of a human being on the pretext to control the urge of sexual desires. It is being performed on both genders - males and females.
Female Genital Mutilation
Popularly known as 'khatna' or 'khafz', this practice is majorly practiced in Somalia, Guinea, Djibouti, Egypt, and Sierra Leone among girls 7-15 years of age, and occasionally among adult women. 'Mullani', a traditional women circumciser generally performs this practice in a private setting. Primarily beginning in Egypt and Yemen the practice of female circumcision came to India with the migration of Dawoodi Bohra (a sect of Shia Muslims) to Gujarat in the 1500s.
It is the system in which the procedures are involved for the partial or total removal of the external female genitals for non-medical reasons. The process consists of no health benefits and only harm. The estimated population of this community is between 1 million and 2 million worldwide. As per the belief of the supporters of this practice, it is done because the hood of the clitoris is the unwanted part of the body, and breaking it off purifies the body.
According to the World Health Organization, female genital mutilation can be of four types. World Health Organization has classified female genital mutilation as a gross violation of the human rights of girls and women.
Nowadays, female genital mutilation is being performed by the medical practitioner which does not justify the conduct of this practice. There are many reasons why health care providers perform female genital mutilation. These include:
1. The belief that there is less risk involved when the procedure of female genital mutilation is performed by a health care provider.
2. The conviction that medicalization of female genital mutilation could be the first step towards full abandonment of the practice.
3. Female genital mutilation is also performed by health care providers.
4. Financial incentive
The International Approach
The origin of the Human Rights and its implementation started when the United Nations created different codes dealing with civil, cultural, economic, and social aspects of problems. In 1946 United Nations Commission on Human Rights was constituted to form an International Bill of Rights. The International Bill of Rights consisted of the United Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR).
The Universal Declaration of Human Rights was created on 10th December 1948 by the General Assembly. The Declaration was adopted as a common standard of achievement for all people and all nations to protect the basic rights of individuals. The declaration consisted of a Preamble and 30 Articles.
• Important Rights mentioned Universal Declaration of Human Rights (UDHR)
1. Right to Equality among humans
2. Right to life and liberty in all aspects
3. Protection from Slavery or Slave trade
4. Freedom of Conscience and Religion
5. Remedy for Enforcement of Rights
• International Covenant on Civil and Political Rights (ICCPR)
International Covenant on Civil and Political Rights came into force on March 23rd, 1976. It protects rights like the right to life, liberty, fair trial, freedom of speech and expression, etc. UDHR is not legally enforceable while ICCPR is legally enforceable. Therefore, the signatories of ICCPR are under the obligation to abide by the Articles mentioned in ICCPR.
• International Covenant on Economic, Social and Cultural Rights (ICESCR)
On January 3rd, 1976, ICESCR came into force which majorly deals with rights like the right to education, the right to an adequate standard of living, the right to health, labour rights, etc. It aims to secure the social, economic, and cultural rights of an individual.
• United Nations Convention on the Rights of the Child
The United Nations has specifically made this convention on the protection of the rights of children. It is an important agreement by countries that have promised to protect children's rights. This convention explains who children are, all their rights, and the responsibilities of the Government. All the rights are connected, they are all equally important and they cannot be taken away from children. Some of the important rights mentioned in the convention are:
1. A child is any person under the age of 18.
2. When any kind of decision is being made by the adults they should think about the effect of that decision on children.
3. The law must protect children's privacy, family, home, communications, and reputation from any attack.
4. Children must be protected from violence, abuse, and being neglected by anyone who looks after them.
5. Children should be protected from all kinds of exploitation including sexual.
6. Children are not kidnapped or sold or taken to other countries or places to be exploited.
The Government should take care that all the rights that are being mentioned in the convention should be followed in all countries.
• Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
The Convention on the Elimination of All Forms of Discrimination Against Women was adopted in 1979 by the United Nations General Assembly. It is the principal international document that obligates the state parties to address the right of women to be free from discrimination. India ratified CEDAW on 9th July 1993.
• The Female Genital Mutilation Act, 2003
This Act is enacted by the Parliament of the United Kingdom and is prevalent in only England, Whales, and Northern Ireland. Section 1 deals with the primary offence of female genital mutilation.
Indian Law
Discriminatory practices against women in different personal laws violate the basic structure of the Constitution. Such discriminatory practices have been legitimized under the garb of religion.
1. Article 21 of the Constitution of India
Article 21 of the Indian Constitution deals with the right to protection of life and personal liberty. It is the soul of the Constitution of India. Personal liberty comprises many factors such as:
• Right to live with dignity
In the case of Francis Coralie Mullin v. Administrator, Union Territory of Delhi(1981), the Supreme Court held that life is more than mere animal existence. Genitals are an extremely important part of the human body and if any person is tampering with a small child's genitals, then that is unacceptable.
• Right of a woman to be treated with decency and dignity
The Supreme Court in the State of Maharashtra v. Madhukar Narayan Mandikar(1991), stated that every woman is entitled to privacy and no one can invade her privacy when one likes.
• Right to Privacy: Woman's Right to Make Reproductive Choices
From the three-judge bench in Sucheta Srivastava v. Chandigarh Administration(2009), the reproductive rights of women are also part of Article 21 of the Indian Constitution. In K.S Puttaswamy v. Union of India(2017), under personal liberty, the Court recognized a woman's right to make reproductive choices also.
2. Articles 25 and 26 of the Constitution of India
These articles deal with freedom in religious affairs. The supporters of female genital mutilation state that female genital mutilation comes under religious practice and is thus protected under Articles 25 and 26 of the Indian Constitution. But the freedoms mentioned in these two articles are subjected to public order, health, and morality and female genital mutilation affects health factors in the form of infections and problems like genital tissue swelling, excessive bleeding, severe pain, etc. The act can also cause shock and Post Traumatic Stress Disorder and can also lead to death.
3. Section 3(b) of Prevention of Children from Sexual Offences Act, 2012
As per this sub-clause, any person who inserts to any extent any object or part of the body not being the penis, into the vagina, the urethra, or anus of the child or makes the child do so with him or any other person is said to commit penetrative sexual assault. Upon reading Explanation 1 of section 375 of the Indian Penal Code, 1860 we understand that the term vagina includes labia majora.
4. Section 324 and 326 of Indian Penal Code, 1860
These sections provide penalties of imprisonment and fines for voluntarily causing hurt and voluntarily causing grievous hurt.
Gender Inequality and Personal Laws
India is a member country of the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Elimination of All forms of Discrimination against Women(CEDAW). That implies India should remove any discrimination based on race, religion, sex, etc. But on the other hand, women are still coerced because of religious issues that transpire through personal laws. And this is because the Governments and Courts do not interfere in matters of religion. Therefore, such policies violate the constitutional mandate and fundamental human rights, contradicting international conventions.
Emphasis on Female Genital Mutilation through Indian Judiciary
In December 2012, United Nations General Assembly adopted a unanimous resolution that called for the elimination of female genital mutilation. Several countries including the United States of America, the United Kingdom, Australia, and some other African countries have banned female genital mutilation. India however, does not have a specific law banning female genital mutilation yet.
To bring light to female genital mutilation, in April 2017, Delhi-based Sunita Tiwari filed a Public Interest Litigation (PIL) seeking a ban on the practice of female genital Mutilation among Dawoodi Bohras stating that the practice of female genital mutilation violates the right to equality as it is discriminatory against women. The other side was the 'Dawoodi Bohra Women's Association for Religious Freedom' defending the practice by stating that it is the religious practice of the Bohra community and is going on since the 10th century. It is done to "purify" the woman and it is for the spiritual well-being of women.
Firstly, the case was heard by the three-judge bench of the Supreme Court which during a hearing in July 2018 held that female genital mutilation violates the "bodily integrity of a woman." In September 2018, it was referred to a five-judge Constitution bench where the bench interpreted religious freedom in the direction of Articles 25 and 26 of the Constitution of India. The three-judge majority judgment of the Supreme Court directs that the case will be referred to a larger seven-judge Constitutional bench and Hindu women's entry into the Sabarimala temple, Muslim women's entry into mosques, and the entry of Parsi women married to non-Parsis into fire temples will be heard in conjunction.
Societal Barriers
Female genital mutilation is the social norm and the social pressure to conform to what others do and have been doing, as well as the need to be accepted socially and the fear of being rejected by the community are strong motivations to perpetuate the practice. The threat of ex-communication is a form of coercion and hence infringes upon the right to personal liberty.
It is commonly believed that if a girl does not receive khatna, she is not considered a part of the community and is excluded from certain religious activities such as wedding ceremonies and funerals. It is a way to prepare a girl for adulthood and marriage. People believe that without undergoing khatna a girl will not be approved of and will be considered unsuitable for marriage. Where female genital mutilation is considered as a cultural tradition, it is often used as an argument for its continuation.
Legislation on Female Genital Mutilation
Even after rising cases of female genital mutilation, India has not enacted a law for the prevention and for punishing the ones who are still into this ill-operation. Irrespective of the fact that the provisions of Prevention of Children from Sexual Offences and the Indian Penal Code punish the person who is into carrying out the offences related to sexual assault, the cases of female genital mutilation are still in practice. One of the reasons female genital mutilation has not been criminalized yet is because it is not merely a crime, but also a complex socio-cultural issue. As Female Genital Mutilation Act, 2003 is enacted in the United Kingdom; there is a need in India too to enact the same kind of law.
This is because any act of crime is against society as a whole. However, when the members of the society themselves believe that it is acceptable to carry out such practices then the laws drafted to regulate such offences need to be more compelling. Female genital mutilation is often carried out behind closed doors and the decisions as to who will go through the practice of female genital mutilation are generally taken by the elderly women of the house. However, if the laws are made then the issue of female genital mutilation will be acknowledged in the public sphere. It will be the first step to propound the rights of women.
Preventions/Solutions
Some of the steps suggested by the World Health Organisation to eliminate female genital mutilation:
1. Strengthening the health sector response
One of the important steps to overcome female genital mutilation is to develop laws and policies for health care providers so that they can provide medical care to girls who have experienced female genital mutilation.
2. Building evidence
Generating and distributing knowledge about the causes and consequences of female genital mutilation and creating awareness amongst the general public.
3. Increasing pleading
Incorporating methods for policymakers to make it easy for them to estimate the health burden associated with the method of female genital mutilation.
The rights mentioned in Articles 25 and 26 of the Indian Constitution do not extend to the misdemeanour of other fundamental rights enshrined in part III of the Indian Constitution. While it is always regarded that women have equal status and rights as men, it is only frightening that they still have to come to blows for it. Genital mutilation on males can be connected to the health or medical benefits for males but genital mutilation on females does not provide any kind of benefits but only harm. India is a country where there are a lot of taboo issues and female genital mutilation is one of them and it got into the limelight after the filing of the Public Interest Litigation in 2018 and we as a country to abolish such customs have a long journey ahead.
I would like to conclude in the words of Emma Watson,
"Both men and women should feel free to be sensitive. Both men and women should feel free to be strong…it is time that we all perceive gender on a spectrum, not as two opposing sets of ideas."
References
[1] What are human rights, Available Here
[2] How are human rights defined in the Protection of Human Rights Act, 1993, Available Here
[3] Female genital mutilation, Available Here
[4] Female Genital Mutilation, Available Here
[5] Francis Coralie Mullin v. Administrator, Union Territory of Delhi, 1981 AIR 746
[6] State of Maharashtra v. Madhukar Narayan Mandikar, AIR 1991 SC 207
[7] Sucheta Srivastava v. Chandigarh Administration, (2009) 14 SCR 989
[8] K.S Puttaswamy v. Union of India, AIR 2017 SC 4161
[10] Sunita Tiwari v. Union of India & Ors., Writ Petition (Civil) No. 286 of 2017
References
Law Library: Notes and Study Material for LLB, LLM, Judiciary, and Entrance Exams
