Female Genital Mutilation/Cutting (FGM/C) is a global concern, and a major human rights violation of girls and women worldwide. Due to the disruptions caused by the COVID-19 pandemic, UNICEF estimates that two million additional cases of FGM/C may occur over the next decade. Although FGM/C is predominantly practised in 30 countries spanning the African continent, it is a global phenomenon seen in other parts of the world as well. This piece will focus on the practice of FGM/C in India and the legal aspects surrounding its practice.
According to the World Health Organization (WHO), FGM/C encompasses “all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.”
The practice of FGM/C has no medical benefits, can cause severe health complications, and can lead to physical, psychological and emotional harm.
The Practice of FGM/C in India
At present, India has no law banning the practice of FGM/C in the country. In 2017, Sahiyo, a non-governmental organisation working towards eradicating FGM/C, released a report highlighting the prevalence of the practice in India. FGM/C, ALSO known as ‘Khatna or Khafd,’ is mainly practised by the Dawoodi Bohra community, a sub-sect of Shia Muslims in India.
The practice as performed in the Dawoodi Bohra community on girls aged 6-7 years involves either the partial or complete removal of the clitoral hood as it is considered to be an ‘immoral lump of flesh’ which obstructs the attainment of ‘taharat’ or ‘purity.’ As the practice is mainly carried out on young girls, FGM/C is not only a women’s rights issue but also a child rights issue.
The official government stance on the issue has vacillated. That is, while the Women and Child Development Minister initially called for the Dawoodi Bohra community to end the practice voluntarily, or face it being criminalised, the government later reversed its stance and stated that there was no official data on the existence of FGM/C in India.
Notably, many Islamic scholars around the world have denounced the practice and don’t endorse it, and the practice is not mentioned in Islam’s Holy Book, the Quran, either. Additionally, it is important to note that, several Islamic/Muslim majority countries have banned the practice as well. Furthermore, leaders from within the Dawoodi Bohra community itself have condemned the practice as well. However, Daim al-Islam, a religious text followed by the Dawoodi Bohra community, does endorse the practice.
Legal Aspects About FGM/C in India
In May 2017, a petition was filed before the Supreme Court of India seeking a complete ban on the practice of FGM/C and declaration of the practice as illegal and unconstitutional. Subsequently, the matter was referred to a larger constitutional bench, without an interim order being passed, and is still pending.
The Dawoodi Bohra community, including the Dawoodi Bohra Women’s Association for Religious Freedom (DBWRF), has contested this petition and sought to safeguard the continuance of this practice by arguing that a legal prohibition on FGM/C would violate their fundamental right to freedom of religion enshrined in the Constitution of India.
The right to freedom of religion is guaranteed under Article 25 and Article 26 of the Constitution of India, but it is not a guarantee and is subject to certain exceptions such as public order, morality and health. FGM/C poses a grave threat to the health of women and girls and can cause serious health issues. FGM/C does not merely cause physical injury, but also severely affects the individual’s psychological and emotional health and well-being and thus directly affects the bodily integrity and bodily autonomy of the girl being cut.
FGM/C also infringes upon a host of fundamental rights, including Article 14, which espouses the right to equality, Article 15, which prohibits discrimination on various grounds such as sex, religion, race and others, and Article 21, which speaks of the right to life and personal liberty.
Also relevant here is a doctrine devolved by the Indian Supreme Court known as the ‘essential religious practices test,’ which is a test used to determine those parts and practices of a religion that are fundamental to the religion itself. The Dawoodi Bohra community has argued that FGM/C constitutes an essential religious practice and should therefore not be interfered with. However, the argument that FGM/C is essential to the Dawoodi Bohra community’s religion is unlikely to hold. In 2017, the Supreme Court held that an essential part of religion constitutes the core beliefs upon which a religion is founded. Thus, an essential practice means those practices that are fundamental to follow a religious belief. As referred to previously, many Muslim majority countries have already outlawed the practice, which clearly shows that the practice of FGM/C is not an indispensable element for the practise of Islam, and therefore, FGM/C cannot be regarded as an essential feature of the religion.
In conclusion, the practice cannot be justified by stating that the community’s traditions and culture should not be interfered with, relying upon a cultural relativism argument: FGM/C is an inherently violent and discriminatory practice that harms women.
International Law and FGM/C
In 2012, the UN General Assembly passed a resolution calling for intensifying global efforts for the elimination of FGM/C. The practice of FGM/C is also a violation of numerous international legal instruments, including the United Nations Convention on the Rights of the Child (“CRC”), which India has ratified. Under Article 24(3), the CRC places an obligation on the state to take all effective and appropriate measures to abolish traditional practices prejudicial to the health of children. Additionally, FGM/C also violates Article 3 of the CRC that enshrines a principle known as the ‘best interests of the child’, among other provisions.
As demonstrated, FGM/C severely impacts the human rights of women and girls. It is crucial to shine a light on this practice and not only advocate for its legal prohibition, but also engage with the community to spread awareness and educate people about its ramifications. The Indian government must shift its lackadaisical attitude towards the issue and take proactive steps toward eliminating FGM/C in India.
 An interim order is an order passed by a court during the pendency of the litigation/suit.
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