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Female Genital Mutilation: A Threat To Human Rights Law

This article investigates the legal and constitutional ramifications of female genital mutilation (FGM) in India, with a focus on the Dawoodi Bohra group. It contends that FGM violates the right to privacy and bodily autonomy, violating Article 21 of the Indian Constitution, and rejects comparisons between FGM and practices such as male circumcision in Islam and mundan in Hinduism, claiming that they are not analogous due to their irreversible nature and physical and psychological harm. It also examines the question of whether FGM is an important religious practice under Article 25, concluding that it does not fit the qualifications and is constrained by concerns about public order, health, and morality.

Furthermore, the article discusses international definitions of FGM, particularly those from the World Health Organisation (WHO), and emphasises that khatna comes under these standards, citing similar charges in other countries such as Australia. It explores the ramifications of prohibiting FGM in India, arguing that it is consistent with constitutional values of equality and nondiscrimination under Articles 14 and 15. The article finishes with a discussion of legislative frameworks that could be used to abolish FGM in India, drawing from international examples.The unscientific and outdated practice of khatna practiced by the Dawoodi Bohra community in India violates the rights to privacy, bodily autonomy, dignity, and equality, and must be overturned by the Court and addressed by the legislation.

Female genital mutilation (FGM) is the ritual cutting or removal of a portion or all of the vulva. The practice can be found in certain African, Asian, and Middle Eastern countries, as well as their diasporas.

At the 41st session of the United Nations Human Rights Council's Universal Periodic Review (UPR) in Geneva, where the human rights records of fourteen states, including India, were being examined, Costa Rica's diplomatic mission recommended that the Indian government criminalise and develop a national plan to eradicate Female Genital Mutilation ("FGM").

The World Health Organisation (WHO) defines FGM as any procedure that involves the partial or complete removal of the external female genitalia, or other harm to the female genital organs for non-medical reasons. The World Health Organisation recognises these and other practices as female genital mutilation (FGM), which is defined as "the partial or total removal of external female genitalia or other injury to the female genital organs for non-medical reasons." The organisation considers FGM a violation of girls' and women's human rights.

In India, khatna, or khafz, or female circumcision is most prominently practised by the Dawoodi Bohra community which is a sect within the Shia sect of Islam. This technique is the ritual removal of either a portion or the entire clitoral hood. While no record of this exists with the Ministry of Women and Child Development, many women in the community have spoken out against the practice.

Sunita Tiwari, a human rights advocate, filed a writ petition [WP � No. 286/2017] challenging this practice, saying that it is unconstitutional.A counter-affidavit was filed, questioning the reasons for this stand. Due to the numerous concerns connected with the importance of the subject for the religious sect, the case was referred to a bigger five-judge Constitution Bench in 2018. While no questions were posed, the Bench was to analyse the topic from all sides and determine the legitimacy of khatna.

As of December 2022, the petition is still pending with the Supreme Court, as the surgery which has no scientific sanction but a religious mandate continues to be performed on little girls without their consent.

While other sources and research studies have examined the subject, this article aims to examine the legal concerns raised during the hearing and to look at FGM only from a constitutional standpoint. First, this argument argues that FGM violates women's rights to privacy and bodily autonomy. Second, it refutes the illogical similarities drawn between khatna and the Hindu practice of mundan and male circumcision in Islam, arguing that it violates the Indian Constitution's egalitarian values.

Third, it contends that khatna would clearly fit under the definition of FGM. Fourth, it addresses the issue of whether khatna can be protected as an essential religious practice under Article 25. It ends by looking at the existing and possible legal framework for dealing with FGM and some international inspirations India can look up to.

Right To Privacy

In Kharak Singh v. State of Uttar Pradesh (1962), the Court ruled that the right to life under Article 21 extends far beyond bodily survival, and that domiciliary inspections by police officers were unconstitutional. While the Court did not grant constitutional authority to the right to privacy, it did lay the groundwork for future action.

K. S. Puttaswamy v. Union of India (2017) addressed this gap by establishing the right to privacy as a basic right. The Supreme Court, in this case, noted:

".The best decisions on how life should be lived are entrusted to the individual� The duty of the state is to safeguard the ability to take decisions � the autonomy of the individual � and not to dictate those decisions."

Justice Chandrachud, in the plurality opinion, cites the various dimensions of privacy, of which decisional autonomy is an important component. An individual's capacity to make decisions about their sexual or reproductive behaviour and their decisions regarding intimate relationships reflects their decisional privacy.

Justice Chandrachud, in the plurality opinion, cites the various dimensions of privacy, of which decisional autonomy is an important component. An individual's capacity to make decisions about their sexual or reproductive behaviour and their decisions regarding intimate relationships reflects their decisional privacy.

Another relevant case involving bodily and reproductive autonomy is Suchita Srivastava v Chandigarh Administration (2009), in which the High Court ordered that the pregnancy of a woman alleged to have been raped at a government welfare institution be terminated. The Medical Termination of Pregnancy Act of 1971 required consent for abortion from a woman who was a major and not a "mentally-ill person." However, the expectant woman, who was eager to carry the child, was discovered to have "mild to moderate mental retardation." Chief Justice Balakrishnan, arguing for the Supreme Court bench, stated that

"There is no doubt that a woman's right to make reproductive choices is also a dimension of "personal liberty" as understood under Article 21 of the Constitution of India� The crucial consideration is that a woman's right to privacy, dignity. and bodily integrity should be respected."

Thus, considering the distinction between mental illness and mental retardation, the Court determined that the State was required to protect a woman's own bodily autonomy. Several High Court decisions in comparable situations have recognised the relevance of Article 21's framework, which includes the right to privacy, dignity, and physical autonomy.

To summarise, if the right to privacy is concerned with the recognition of an individual's sovereignty (over her body), decisional autonomy entails using this right against the capriciousness of "legislative" or "popular morality." (The Supreme Court recognised this in Navtej Singh Johar v. Union of India.)

The practice of khatna is effectively non-consensual in nature, depriving a woman of the decisional autonomy to undergo a potentially life-changing treatment. It is worth noting that the procedure might result in urinary or vaginal difficulties, which are frequently accompanied by psychological trauma such as losing the trust of a loved one who made the decision, or even post-traumatic stress disorder.

A report titled 'The Clitoral Hood � A Contested Site', commissioned by WeSpeakOut and Nari Samata Manch, underlined the gravity of the situation: the daughters of around 75% of respondents in the sample were subjected to FMG. It also revealed that approximately 33% of women who had "khafz" reported that it had a negative impact on their sexual lives. Following FGM, many victims experienced dread, worry, melancholy, and low self-esteem.

Therefore, the procedure of khatna is violative of the right to privacy and bodily integrity enshrined under Article 21 of the Constitution.

Child's Right To Privacy

One of the questions before the Bench was whether a child would have the same rights protecting individual privacy and bodily autonomy as the adult, considering the several instances a parent or guardian makes decisions for their children. For example, in Hindu households, the practice of mundan or the act of shaving a baby's first hair is prevalent.

However, we need to consider the fact that the Indian Constitution does not envisage any additional restrictions on the Fundamental Rights based on the age of the person (majority or minority), and further, unlike mundan, female genital mutilation involves an irreversible intervention that has lasting physical and psychological consequences for the girl even in adulthood and also violates her decisional autonomy (which, as established, is part of the rights guaranteed under Article 21).

Comparison With Male Circumcision And The Right To Equality.

The respondents in the case used the example of male circumcision, which all followers of the Islamic faith must endure, to argue that a selective ban on khatna or female circumcision would violate the egalitarian ideals outlined in Articles 14 and 15.

The argument seeks to complicate the situation further. At first glance, a rule prohibiting khatna would create an arbitrary distinction between the two sexes who comprise "like classes," but one must consider the reality that circumcision has different physiological effects for men and women. As a result, they cannot be compared to similar classes in this circumstance.

Furthermore, it should be noted that Article 15(3) of the Constitution empowers the state to create "any special provisions for women and children." It could be argued that, like in Anuj Garg v. Hotel Association of India, not all of these specific rules are justified. In that case, for example, a statute that prohibited women from working in any liquor-serving establishment (such as a hotel, bar, or restaurant) was overturned because it promoted gender stereotypes. However, as Gautam Bhatia argues, there is a distinction between regulations that are based on stereotypes and romantic paternalism and those that seek to eliminate historical or structural disadvantages.

Thus, a rule mandating women's reservations in legislatures would not be founded on traditional assumptions of separate realms and roles for men and women, but rather as a means of ensuring their full participation in politics and decision-making. Similarly, a legislation prohibiting female circumcision recognises a societal reality built on gender stereotypes and patriarchal ideals of premarital virginity.

For example, some claim that FGM is a type of gender-based violence intended to control and govern female sexuality. The studies described above revealed that women who underwent the procedure experienced reduced sexual satisfaction, and even over-sensitivity in their clitoral region. Thus, it is perceived as a way not only to physically prevent "illegitimate" intercourse but also to purge the "impure" thoughts and desires of girls. The practice, therefore in itself, is violative of Articles 14 and 15 of the Constitution as it places unequal burdens on women on account of their sex.

Two other contentions raised by the respondents to the case merit consideration: that female circumcision is different from FGM and therefore should not be banned, and that khatna is an essential religious practice under Article 25, and hence possesses constitutional protection.

Khatna And The Definition Of FGM

Since no Indian statute or court judgement has so far attempted to define FGM, we must rely on international standards and practices.

To begin, khatna is defined as the cutting of the prepuce or clitoral hood. This clearly falls under the WHO's comprehensive definition of FGM, which includes Type 1 (the partial or total removal of clitoral glans and/or prepuce) and Type 4 (all harmful procedures to female genitalia such as pricking, piercing, incising, scraping, and cauterising the genital area).

Furthermore, in the case of R v. A2; R v. KM; R v. Vaziri, the Supreme Court of New Wales convicted a retired nurse and a mother of two girls in what was said to be 'Australia's first prosecution of a FGM case.' The individuals convicted were from the Bohra group, and the court determined that the practice of khatna met the definition of FGM under Section 45 of the Crimes Act of 1900.

Following the decision, the Anjuman-e-Burhani Trust of Sydney (a trust that manages the affairs of the Dawoodi Bohra community in Australia) issued a notice acknowledging that khatna was a crime because it fell under the definition of FGM and thus should not be practiced by community members.

So, we may easily conclude that khatna is a kind of FGM, which has been banned in various countries and is widely condemned around the world.

The Essential Religious Practices Test

Second, the practice of khatna does not meet the criteria for an essential religious practice ("ERP") because it predates Islam and is not mandated by any Islamic source of law, as endorsed by an Inter-agency statement of prominent United Nations organisations such as WHO, UN Population Fund (UNFPA), and UN Children's Fund (UNICEF), among others. Previous assessments by the WHO reached similar results. Furthermore, members of the Bohra community living abroad have been barred from practicing it, despite the fact that they are part of the religious group.

Even if an ERP exists, Article 25's right to religious freedom is limited by "public order, health, and morality" and other provisions of Part III of the Constitution. Indeed, in Indian Young Lawyers Association v. State of Kerala, the Supreme Court stated that the "morality" that constrains Articles 25 and 26 must be "constitutional morality," and that "existing structures of social discrimination" must be reviewed through this lens. In his concurring opinion in the Sabrimala case, Chief Justice Chandrachud stated:

"Constitutional morality must have a value of permanence which is not subject to the fleeting fancies of every time and age� Once these postulates [of human liberty, equality, fraternity, and justice] are accepted, the necessary consequence is that freedom of religion and, likewise, the freedom to manage the affairs of a religious denomination is subject to and must yield to these fundamental notions of constitutional morality."

Thus, we can conclude that the respondents' arguments do not stand the test of constitutional scrutiny.

Existing Legal Framework For FGM And Future

It is worth noting that, while FGM remains prevalent in the country despite the lack of comprehensive legislation to address it, India has suggested that countries such as Guinea, Mali, and Gambia pass laws against the practice.

Within the existing legal framework, FGM could be penalized under Sections 324 and 326 of the Indian Penal Code, which criminalize 'voluntarily causing hurt' and 'voluntarily causing grievous hurt' respectively. Section 3 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) also criminalizes penetrative sexual assault on any child. Insertion of any object into the vagina of a girl child would be constitutive of penetrative sexual assault.

However, because these regulatory measures have not been effective in curtailing the practice, a comprehensive plan addressing FGM must be developed. Many African and European countries have already criminalised FGM by incorporating it into their existing penal code provisions or by making special laws to address it. It is high time that the Indian government addresses its social, moral, and international obligations by making efforts to end the anathema of FGM.

Inspiration can be drawn from the Netherlands, where collaboration among many actors such as medical practitioners, school instructors, police, migrant organizations, and reporting stations for child abuse, as well as decentralization of eradication efforts, has been successful. Similarly, in 2019, more than 175,000 girls were saved from FGM in Burkina Faso thanks to neighborhood child protection communities that identified girls at risk of FGM and organised them into teenage clubs. This demonstrates how important community interaction is in this process.

It is critical to adopt legislation in India that comprehensively defines FGM (in accordance with WHO's definition), includes clauses penalising medical practitioners who perform female circumcision, and legally mandates medical, educational, and psychosocial care for victims.

This author advocates for a nationwide ban on FGM, as well as state-level initiatives to eradicate it that can account for local differences and available resources. Notably, the Bohra community is concentrated in some states, including as Maharashtra, Gujarat, Rajasthan, Kerala, and Telangana, which may be specifically targeted.

Given the practice's significant cultural linkages, it would be equally vital to engage community leaders and members in debate and deliberation to develop trusting relationships. Members, particularly existing and future moms, should be educated on the risks and implications of the practice. This can be accomplished most effectively by involving schools, civil society organisations, and community health workers like as Anganwadi and ASHA (Accredited Social Health Activist) workers, preferably from the practicing community itself, who can function as change agents.

The 'African Well Woman Clinics' model, which was formed in the United Kingdom to meet the needs of migrant girls and women who had undergone FGM, has also proven effective in terms of delivering healthcare services and advocating against the practice. Similar services could be offered in primary and community health centres.

To summarise, female circumcision as practised by the Bohra community deprives girls and women of decisional autonomy, which is required for the exercise of their right to privacy under Article 21, as stated by Puttaswamy. Furthermore, because it lays disproportionate physiological demands on a woman and is based on gender stereotypes, it violates the equality requirement of Part III of our Constitution.

It firmly falls under WHO's definition of FGM, which is widely accepted by international organisations and declarations. Finally, it cannot be protected as an ERP under Article 25 because it does not meet the requirements and is not constitutionally sound. As a result, the Court must strike it down as unlawful.

However, since this may not be sufficient, the Indian government must develop comprehensive legislation and a strategy to eradicate the practice, in which it should consult with practising communities and all other stakeholders, as well as look at best practices around the world in dealing with FGM. This plan must prioritise prevention, protection, prosecution, service delivery, and partnership.

It must be underlined that persistent efforts are required to safeguard the girls who are currently at risk, as well as to ensure that future generations are safe from the hazards of FGM.

  • Mutilation/ Cutting from Islam, Ibrahim Lethome Asmani and Maryam Sheikh Abdi, 2008, (Last accessed: January 24, 2

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