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Why India must take a stand against FGM

The concept of gender-based violence is not a new one; the female population has been oppressed in numerous ways either emotionally, economically, or physically. The physical oppression, however, tends to leave visible scars and violate the female anatomy. One such cruel form of oppression is the Female Genital Mutilation (FGM), an illegal process of tampering with the female genitalia, allegedly to curb the female sex drive.

Performed by traditional circumscribers, this practice involves total or partial removal of the external female genitalia for non-medical reasons. Despite it being a cruel and barbaric practice, it is practiced by some of the otherwise progressive communities worldwide. Against the popular belief that FGM practices are prevalent mostly in the middle east and African regions, it is undeniably prevalent in countries like Ireland, Australia, and India.

With the UN declaring it as a human rights violation, FGM has been banned and criminalized in many nations. India, however, has done extraordinarily little to curb this evil, despite having a sizable population still practicing this otherwise violative practice. This article explores the reason why this human rights violation still prevails and in which territories across the globe.

Female Genital Mutilation

Also known as female Circumcision, FGM involves circumcising typically with a blade the female genital organs for no medical benefit whatsoever. Declared by the WHO as a human rights violation which has made its way into the Global Development Agenda, this practice only reflects on the deep-rooted patriarchy, gender inequality, discrimination, and an outright attempt to suppress and control the sexuality and sexual experiences of the women of the world.

According to the WHO, there are four types of FGM recognised: [i]

  1. Total or partial removal of the Clitoral head, the external or visible of the clitoris or the skin surrounding it
  2. The partial or total removal of the Clitoral glans and labia minora (the inner folds of the vulva) with or without the removal of the labia majora or the outer folds around the vulva.
  3. Narrowing or shutting the vaginal opening through a process known as the infibulations
  4. Any other harmful procedures which are otherwise not medically required like forceful piercing, cutting, cauterizing, etc.
This practice is more prevalent in young girls below the age of 15 years, which makes it a child rights violation and an even more dangerous practice as children at such young ages are quite incapable of advocating for themselves. Victims of these age groups are often more defenseless than the rest and their right to development in a healthy environment is also a danger.

One-quarter of the FGM instances in the world are accounted for in the Middle East and Northern African region, with prevalence ranging up to 94% in the Djibouti region.[ii] Even though high concentration exists in the Asian province with prevalence in nations like Indonesia and Maldives, it is remotely present even in the advanced regions of Europe, North America, and Australia.[iii] According to the data interception conducted by UNICEF, it is shown that there is an existence of FGM in significant numbers in countries like Malaysia, Oman, Saudi Arabia, Columbia, and India.[iv]

FGM in India

Ranked as the world's most dangerous country for women,[v] it comes as no surprise that there is a prevalence of the practice of FGM in India. However, this is observed mostly in one particular sect of the Shia Islam community, the Dawoodi Bohra community residing mainly in Mumbai. The Bohra community in Mumbai follows a ritual performed on their 6-7-year-old daughters, the partial removal of the clitoral hood, categorized as Type I or Type IV FGM. Known better as Khatna or Khafz, an estimate of 75% of the women belonging to this community are said to be subject to this cruel ritual, by their own parents. This ritual is forced upon young and innocent girl children on the premise that the clitoral head is called the Source of sin and its existence allegedly causes marital difficulties in the future lives of these children.

What is horrifying about this act is that women themselves, rather the mother or Grandmother subject their daughters to this ritual of curbing the sexual desire of their innocent girls. Based on the experiences of the women of this community released during the We Speak Out movement that had taken place in India on this otherwise never spoken taboo, these children are taken to the covert streets of the Bohri Mohalla and Bhindi Bazaar in Mumbai where a fellow lady of the community chops off the Clitoral head or the Haraam Ki Boti or an immoral lump of flesh with a hot blade.

This is seen as a dichotomous existence in an otherwise progressive society of India, where the women of this community have a high literacy rate. Coincidentally, this practice is also prevalent in various parts of Kerala, a state with the highest literacy rate in India where it takes the name of Sunnath Kalyanam.

A detailed report released by the We Speak Out show that over 90% percent of the women who remember the incident remember it as traumatizing and painful. Apart from being largely non-medical and unnecessary ritual in terms of medicine, the report in detail highlights various physical, emotional impacts the incident causes which include not only but also discomfort, sepsis, loss of sexual drive, and PTSD.[vi]

Another reason for this violative practice is the belief that Khatna is Sunnat; a traditional practice of the Prophet Muhammed, which forms a model of code of conduct for the members of the Islamic community to follow.[vii] It is considered as an optional act but its omission would mean the person has sinned.

As an opposition to the movement, the Dawoodi Bohra Women's Association for Religious Freedom (DBARF) have approached the Apex Court seeking intervention on the ground that Khatna is merely a religious practice of circumcision and does not as FGM and claimed that community is allowed to perform its religious practice as a Fundamental right under Article 25 and 26 of the Constitution.

However, research suggests that Khatna is merely an optional practice[viii] without consequences if not performed, negating the argument that it is an obligatory religious practice and an essential part of the religion which is a qualification for the practice to be protected under The Constitution.[ix]

Further, a Public Interest Litigation (PIL) was filed by a Human rights lawyer seeking a ban on FGM in India which was finally referred to a nine-judge bench to decide whether the issue is a religious issue or not.[x]

What should India be doing?

The UN in 2020 launched a decade long campaign #youthendFGM and has also Internationally marked February 6 as the International Day for Zero Tolerance on Female Genital Mutilation.[xi] Apart from this, nations also have also taken steps to end this practice where countries have banned the practice and subsequently criminalised the same as Sudan, Egypt, and Australia. England has passed its Female Genital Mutilation Act in 2003 and has had its first conviction in 2019.[xii]

Out of the 92 states where FGM is prevalent, 51 of them have criminalised the act and 22 of 28 African nations have made the practice illegal. Despite several nations taking a stand against FGM, India has failed to even recognize the presence of FGM within its territory. In a statement issued in 2018 on perception poll on how India is a dangerous place for women, the Ministry for Women and Child Development stated that practices like FGM are not seen in India.[xiii]

Even the crime reports issued by the NCRB fail to mention the statistics of FGM in the country. Sure, the POSCO act[xiv] and the IPC u/s Sections 320, 323, 324, and 325 provide for the punishment of this offence, it needs the recognition and expresses ban to have an impact. With the growing intolerance in the country, not recognizing the practice will only deepen the gender divide present. If India ever wants to be a safe space for women, it must take the necessary steps to ensure safety. India should at the very least expressly ban the practice and take active steps to curb the practice.

As this practice is mainly carried out the members of immediate family, it becomes harder for the victims to raise a voice against the atrocity and its long-term impact will hugely traumatize them. It's a practice performed by the immediate family on defenseless young children: The Government has to take a stand against FGM. Further, it should be positively creating legal awareness on the ill effects and impacts of the practice and should support its defenseless victims. Unfortunately, the mere declaration of its violative nature is not going to end the practice.

After all, even after the existence of sections criminalising mutilation of genital organs, 75% of the women belonging to a 2-million-member community have reported having faced Khatna. What is astonishing is that many of them practicing FGM follow it clandestinely and refuse to believe it is traumatic and has many health hazards.

However, what this recognition and possible legislation on the same will do is ensure the act has its consequences. The existence of a legal forum and backing will help those who wish to stand against this but are unable to due to lack of support. In addition to this, there must be introduced a legal duty on the part of the health care professionals to report any incidence that they come across in a minor with physical signs of a probable FGM. It is high time that India takes a stand against FGM to bridge gender inequality and a growing unsafe environment.

Conclusion
Much like any other gender-based violence, FGM is prevalent in India. Despite the existence of laws criminalizing hurt and grievous hurt, there is an absence of legal definition and specific provisions for FGM. Due to this, the number of victims does not seem to be reducing and practice is still going unnoticed. Further, the government's refusal to acknowledge its presence is hindering a possible legal framework against FGM.

There is a growing need for India to join countries like Sudan and Australia in terms of taking positive measures against the act. Despite some arguments that the practice is a religious practice, it does not change the fact that the practice is a human rights violation and needs to be stopped. There is a need for FGM to be treated not as an accepted religious practice but as an offence against the body and to create awareness against the same.

End-Notes:
  1. World Health Organisation, Female Genital Mutilation, February 3, 2020, available at https://www.who.int/news-room/fact-sheets/detail/female-genital-mutilation. (Last visited on July 7, 2020
  2. UNICEF, Female Genital Mutilation in the Middle East and North Africa, February, 2020, available at https://data.unicef.org/resources/female-genital-mutilation-in-the-middle-east-and-north-africa/. (Last visited on July 7, 2020).
  3. UNICEF, Female Genital Mutilation (FGM), February, 2020, available at https://data.unicef.org/topic/child-protection/female-genital-mutilation/#more--1556. (Last visited on July 7, 2020).
  4. Ghadially, R., ‘All for Izzat: The practice of female circumcision among Bohra Muslims', Manushi, no. 66, September–October 1991, ; Ghadially, R., ‘Update on Female Genital Mutilation in India', Women's Global Network for Reproductive Rights Newsletter, January−March 1992.
  5. NDTV, India Most Dangerous Country for Women, US in 10 Worst: Survey, June 26, 2018, available at https://www.ndtv.com/india-news/india-most-dangerous-country-for-women-with-sexual-violence-rife-poll-1873117#:~:text=India%20is%20the%20world%27s%20most%20dangerous%20country%20for,a%20poll%20of%20global%20experts%20released%20on%20Tuesday. (Last visited on July 7, 2020).
  6. We Speak Out, The Clitoral Hood A Contested site: Khafd or Female Genital Mutilation/Cutting (FGM/C) in India, January, 2018, available at https://www.wespeakout.org/site/assets/files/1439/fgmc_study_results_jan_2018.pdf. (Last visited on July 7, 2020).
  7. Asma Afsaruddin, Encyclopaedia Britannica, Sunnah, March 9, 2018 available at https://www.britannica.com/topic/Sunnah. (Last visited on July 7, 2020).
  8. Lakshmi Anantnarayan, Shabana Diler and Natasha Menon, We Speak Out, New Groundbreaking National Research on Female Genital Mutilation/Cutting (FGM/C) in India marks International Day of Zero Tolerance for FGM, February 5, 2018, available at https://www.wespeakout.org/posts/fgm-c-study-results-summarized/. (Last visited on July 7, 2020).
  9. Mohd. Hanif Qureshi v. State of Bihar, AIR 1958 SC 731.
  10. Sunita Tiwari v. Union of India, 2018 SCC OnLine SC 2667.
  11. Fiza Jha, The Print, Today is Zero Tolerance to FGM Day, and battle to end Bohra Muslime Custom has only Begun, February 6, 2020, available at https://theprint.in/india/today-is-zero-tolerance-to-fgm-day-and-battle-to-end-bohra-muslim-custom-has-only-begun/360347/ (Last visited on July 7, 2020).
  12. Adam Lusher, Old Bailey & Adam Forrest, FGM Trial: First Ever Person Convicted of Practice in UK Jailed for 13 years after mutilating 3-year-old daughter, March 8, 2019, available at https://www.independent.co.uk/news/uk/crime/fgm-sentencing-trial-uganda-mother-guilty-old-bailey-conviction-a8814051.html (Last visited on July 7, 2020).
  13. Press Information Bureau, Recent poll by a Foundation on the world's most dangerous countries for women 2018 is not based on data but on perception of unknown persons, June 27, 2018, available at https://pib.gov.in/PressReleasePage.aspx?PRID=1536751 (Last visited on July 7, 2020).
  14. The Protection of Children from Sexual Offences Act, 2012, §9 (i).

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