NEED OF CRIMINALISATION OF FEMALE GENITAL MUTILATION IN INDIA

NEED OF CRIMINALISATION OF FEMALE GENITAL MUTILATION IN INDIA


Author: SUMONTO CHAKRAVARTY
3RD YEAR,
 SCHOOL OF LAW, CHRIST UNIVERSITY,
 BANGALORE. 
ABSTRACT
Female Genital Mutilation is a practice which is common in the Muslim community in the whole world. It deals with various types of cutting of the female vagina. In India it is very common in the Bohra Community of the Shia sect. This community resides in the Western part of India. The Government of India does not recognise the practice of FGM to be existing in India as such practices are never contested in courts. It is a belief which a community holds and they decide to govern it under their personal laws. In this case, The Shias follow the ritual of the cutting of the genitilia of a girl who is 6 or 7, this is said to be a custom in the Shias but however, in the Quran, there is no mention of this practice.

This paper aims to show the atrocities happening to the small girls and women in a specific community in the name of practicing a particular religion. The family members of the person being circumcised are also involved including her mother. This paper talks about the various ways in which FGM is done and also the 4 degrees of FGM. This paper discussed the various national and international provisions and urges the need of criminalisation of Female Genital Mutilation in India.
Keywords: Mutilation, Bohra community, Atrocity on women, Indian Penal Code, Infant Mortality
INTRODUCTION
Female Genital Mutilation (FGM) is an ever-growing practice of horror, pain and torture that has hurt more than 130 million women and girls in the whole world. “The Center For Disease Control and Prevention estimates that about 270,000 in the United States were mutilated in their home countries or at risk here.”[1]Typically, FGM ceremonies involve in preparing the young child for her step “into womanhood” by giving her special treatment the night before, dressing her up in the best dress and telling her that what an honour it is to get this, the girl is kept in complete darkness about the real facts which will be happening to her. This process is done by their own family members, the parents and other relatives are involved in conducting the whole process. Four or five family members hold the young girl firmly while she is being cut or mutilated. Most of the times this is done without anaesthesia and her genitalia is removed. The male equivalent of removal of clitoris would be the amputation of penis.
According to World Health Organisation, Female Genital Mutilation comprises of all procedures that involve partial or total removal of external female genitalia. It is also known as “Female Circumcision” or “cutting”, and many other traditional terms like “khatna”, “sunna”, “gudniin”, “tahur”, “halalays”, “megrez”, and many more.[2]
This practice is usually carried out by traditional circumcizors or traditional cutters, who often play other central roles in the communities, such as attending childbirths. These people are also called “Midwifes”. FGM has no health benefits at all, it harms girls and women in many ways. It involves removing of healthy female genital tissue and damaging it.[3]
Female Genital Mutilation violates the right to health, the right to freedom from torture and cruelty, security and physical integrity, inhuman and degrading treatment, and the Right to Life of a person.[4]The practice is dangerous to both the dignity and the life of a person.[5]
In India, this practice is common in the Bohra Community, where the ritual is referred to as “Khatna” or “Khafz/Khafd”. Khatna essentially involves cutting the tip of the girl’s clitoris when she is 6 or 7 years old. It is performed by “Mullanis” also known as the women who have a semi-religious standing, by traditional cutters, or by any woman with some experience. Members of the family are usually involved in the decision making but however the older women are usually responsible for this. There are various socio-cultural reasons for this practice, which may vary from region to region, underlying all these reasons, however, is deep rooted discrimination and cruelty towards women and girls. In many places, the practice is linked to religion and rituals, in as study conducted among the Dawoodi Bohra community[6], it was found that religious requirements, traditions and customs and the wish to curb the girl’s sexuality were the main reasons for the flourishing practice. In many places, the belief is that the clitoral head is an ‘unwanted skin’ or that it is a ‘source of sin’, which will make them ‘stray’ out of their marriages are reasons that lie at the heart of a practice that predates Islam but thrives amongst the Bohras.
WHY AND HOW IT IS DONE
FEMALE CIRCUMCISION- WHAT IS IT
Female circumcision is often known as Female Genital Mutilation, is a traditional practice that involves in cutting of some or the whole external genitalia, which includes the clitoris, the labia minora and the labia majora.
The practice can be broken down into four basic forms that vary in degrees of severity. The first, and least severe form, is called ritualistic circumcision, where the clitoris is merely nicked. This causes bleeding, but little mutilation or long-term damage.[7]The second form is simply called circumcision, or “sunna” by the Muslims. This involves the removal of the clitoral prepuce-the outer layer of skin over the clitoris, sometimes called the “hood”; the gland and body of the clitoris remain intact. Occasionally, the tip of the clitoris itself is removed. Sunna has been equated with male circumcision, because the clitoris itself is generally not damaged. A third, and more harsh form of the practice, is called excision or clitoridectomy. This is the most common form and involves the removal of the gland of the clitoris–usually the entire clitoris-and often parts of the labia minora as well. Finally, the most severe form of the practice is infibulation, or “Pharaonic” circumcision, where virtually all of the external female genitalia are removed. With this type of circumcision, a dramatic excision is performed removing the entire clitoris and labia minora-and in addition, much or most of the labia majora is cut or scraped away. The remaining raw edges of the labia majora are then sewn together with acacia tree thorns, and held in place with catgut or sewing thread. The entire area is closed up by this process leaving only a tiny opening, roughly the size of a match stick to allow for the passing of urine and menstrual fluid. The girl’s legs then are tied together–ankles, knees, and thighs-and she is immobilized for an extended period, varying from fifteen to forty.[8]
HEALTH EFFECTS ON WOMEN
There are major health problems psychological, as well as physical as associated with female circumcision. The adverse effects can be severe with any of the forms, but the problems are most pronounced with excision and infibulation. Furthermore, physical problems can accompany the individual to adulthood and result in obstetrical complications that jeopardize both mother and child.
IMMEDIATE AND SHORT-TERM COMPLICATIONS
The conditions under which the typical female circumcision takes place are far from satisfactory for safe and hygienic operations. The unsterilized instruments and unhygienic methods used in the various procedures, especially infibulation, can result in immediate medical problems: haemorrhage, septicaemia, shock from pain and blood loss, acute infection, damage to other organs, and even death.[9] In the case of infibulation, the girls are forced to be inactive for some time, with their legs bound together to ensure that the area is closed as it heals; the girls’ excrement remains trapped within the bandage during this time. Death can result from haemorrhage, infection, shock, and other complications. Death due to female circumcision is one of the many factors that leads to the already high rates of infant mortality within the Bohra Community. It should be noted that countries with the highest rates of infant mortality correspond closely to those that continue to practice female circumcision.
LONG -TERM COMPLICATIONS
Long-term health problems can result from any form of female circumcision, but the most severe and long-lasting problems are associated with infibulation. Among the most frequent of the long-term health problems is chronic infection. Localized infections, dangerous in their own right, can lead to widespread infections and related problems such as urinary tract complications. Some results from infection are excruciating pain with urination, kidney infections, and eventual sterility. Menstrual difficulty is another major problem caused by female circumcision, particularly infibulation.
PSYCHOLOGICAL TRAUMA
Although few studies have been done on the psychological effects of genital mutilation, it is well known that extensive and enduring pain can create deep psychological wounds. Emotional trauma can be severe, resulting from the memories of painful experiences. These painful memories may be triggered by the permanent scars left from the operation. It would seem logical that such intense pain in an extremely delicate, complex, and vital physical area, when experienced by young girls in their formative years, could result in substantial psychological problems. The girls often experience severe anxiety in anticipation of the event, if they are old enough to understand what the procedure entails. The event itself is also frightening-the girls are held down by force and circumcised without anaesthesia. The pain may last for weeks after the operation and may recur throughout life. The debilitating pain of menstruation (as a result of the operation), the agony of the first intercourse, especially for the infibulated, the prolonged suffering in childbirth, no doubt creates deep psychological wounds as well as physical ones. Over the years, emotional reactions to these problems, along with repeated infection and painful urination, “may present themselves as chronic irritability, anxiety, depressive episodes, conversion reactions or frank psychosis.[10]The psychological effects on the attitude toward sexual intercourse by women who have been circumcised also has not been conclusively determined. It is clear, however, that a large number of circumcised women are afraid of sex, experience extreme pain from the act, and receive little, if any, enjoyment from sexual relations. In societies where circumcision is performed primarily to reduce the sexual desire.
LEGAL PROVISIONS BY THE INTERNATIONAL BODIES
In past few years there has been growing efforts both at international and the nation levels to curb the practice of FGM. The international monitoring bodies have passed certain resolutions to condemn the practice and to help the countries revise their legal frameworks with the help of political support. The practice of FGM has reduced in most countries and a greater number of women and men in practising communities support ending its practice. In the year 1997, World Health Organisation issued a joint statement against the practice of FGM together with the United Nations Children’s Fund (UNICEF) and the United Nations Population Fund (UNFPA). In 2008, WHO together with 9 other United Nations countries, issued a statement on the elimination of FGM to su
pport increased advocacy for its elimination. In 2010, WHO published “Global strategy to stop health care providers from performing female genital mutilation” in collaboration with other key UN agencies and international organizations[11]. In December 2012, a resolution was adopted by the UN General Assembly on the elimination of female genital mutilation. A joint programme on FGM launched In May 2016 by WHO in collaboration with the UNFPA-UNICEF.[12]
To ensure the effective implementation of the guidelines, WHO is developing tools for front-line health-care workers to improve knowledge, attitudes, and skills of health care providers in preventing and managing the complications of FGM. WHO efforts to eliminate female genital mutilation focus on strengthening the health sector response, building evidence, increasing advocacy. When we say strengthening the health sector response, it means the guidelines, tools, training and policy to ensure that health professionals can provide medical care and counselling to girls and women living with FGM. When we say building evidence, it means generating knowledge about the causes and consequences of the practice, including why health care professionals carry out procedures, how to eliminate it, and how to take care of those who have experienced FGM. When we say Increasing advocacy, it means developing publications and advocacy tools for international, regional and local efforts to end FGM within a generation.
LEGAL PROVISIONS IN INDIA
Due to the secrecy and the religious claims around the practice there are no explicit provision in India guiding the practice of FGM despite the fact that India is a signatory of UN resolution for protection of Child and Women and ending all types of exploitation. The fear of exclusion and the social embarrassment had prevented the women who are subjected to this practice to approach the court or to file any complaints. In India, various forms of violence are present which are against women, which are dealt within the Indian Penal Code, 1860 (IPC). Being a criminal law, the focus is on penalising the accused of the crime. Section 319 to 326, IPC address varying degrees of hurt and grievous hurt. According to WHO, the immediate complication of FGM can include excessive bleeding, genital tissue swelling, wound healing problems, urinal problems, menstrual problems, sexual problems, etc. and thus persons undertaking FGM can be prosecuted under the IPC.[13]
The Indian Penal Code under Section 320 describes certain kinds of grievous hurt, i.e. if any person causes hurt to another person in any of the way specified in the said section is liable of causing grievous hurt which is a punishable offence then. The practice of FGM has certain long term affects which are dangerous for health of a person. These affects will fall in the clause Eighthly of Sec 320, these includes that FGM causes severe pain and bleeding, shock, difficulty in passing urine, infections, injury to nearby genital tissue and sometimes death because of severe bleeding. “The pain caused by FGM does not stop with the initial procedure, but continues as on-going torture throughout a woman’s life”.[14]When giving birth to a child, the scar might tear, or the wounded opening needs to be cut to allow the baby to come out. After the childbirth, women from some ethnicities, are often sown up again to make them “tight” for their husband (re-infibulation). These cutting and re-stitching of a woman’s genitalia results in a painful process. Section 326 of the Indian Penal Code clearly states that, “whoever, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death is liable for the offence” under this section[15]. FGM is a practice in which a part of the c
litoral hood is cut with a knife or a blade or any other sharp object. Thus, it would be an offence under Section 326 of the IPC.
The Indian Constitution guarantees the basic fundamental rights and freedom of equality and right to life and integrity (Article 14 and Article 21 respectively) to every citizen of the country. A woman could seek protection under these provisions as the practice is violative of both these Fundamental Rights.[16]
The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) addresses penetrative sexual assault by any person on any child and The Goa Children’s Act, 2003 which defines ‘Sexual assault’ and specifies it as “deliberately causing injury to the sexual organs of children” [17]
Also, India is a signatory to CEDAW (Convention for Elimination of all forms of discrimination against women) which clearly mentions FGM as a form of violence against women and discrimination based on gender. The CEDAW clearly states that it is the responsibility of States Parties to take “all appropriate measures” to “modify the social and cultural patterns of conduct of men and women” in an effort to eliminate practices that “are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women”.[18]
INITIATIVES BY PEOPLE
There has been a widespread movement in India among the people to fight against the cruel practice of FGM. There are various initiatives some of them are:
ORGANIZATION/NGOs
Sahiyo began a conversation between five women who felt strongly about the ritual of female genital cutting (khatna) in the Bohra community. The group includes a social worker, a researcher, two filmmakers and a journalist, all of whom are against practice of khatna. 
 Sahiyo’s main agenda is to empower Dawoodi Bohra and other Asian communities to end the process of female genital cutting (FGC) and create positive social change. By working towards an FGC-free world, they aim to recognize and emphasize the values of consent and a child’s/woman’s right over her own body. Their goal is to enable a culture in which female sexuality is not feared or suppressed but embraced as normal. Like Sahiyo there are many organizations coming up to fight against this cruel practice.
PETITIONS FOR CHANGE
Masooma Ranalvi, a victim of this practice began an online petition urging women to speak about it. In a historic move 16 Dawoodi Bohra women who have all been subjected to FGM have signed the petition openly in order to end this ritual.
Close to 30 women got together in 2015 under ‘Speak Out on FGM,’ they took up several campaigns to reach out to the community. They started with the first petition which was named after their group that received 80,000 signatures.[19]
 Another campaign called ‘Not My Daughter,’ was started in April, had over 150 Bohra mothers and fathers pledging that they will not put their daughter through the suffering.
LEGAL DEVELOPMENT
Advocate Sunita Tiwari, who has been working on the issue of FGM since the last couple of years, had filed an PIL in the Hon’ble Supreme Court of India against this cruel some practice. The Petitioner had raised the contention that the practice of FGM does not find any mention in the Quran or anywhere else, thus it is not an essential part of religion and hence the government could make legal provisions to end this practice.  Although India was a signatory to the Special Resolution passed by the UN General Assembly which banned the practice of FGM, it did not pay heed to it. After this, 27 African countries banned the practice. Thus, there is need to ban the practice as soon as possible.[20]
 The Hon’ble Supreme Court of India had held in Javed vs State of Haryana, (2003) SC and in Khurshed Ahmed Khan vs State of UP (2015)[21], SC that “what was protected under Article 25 was the religious faith and not a practice which may run counter to public order, health or morality”. It was also observed “that a practice did not acquire sanction of religion simply because it was permitted”. Thus, legally this painful practice of FGM has no sanction or protection.
CHANGING LEGAL SCENARIO IN INDIA
The practice of FGM is being openly criticized by people. There have been number of efforts made by the people to fight against this practice. As a result of this there has been recent development in the legal status of the practice. There have been initiatives taken by the government and an openness on the topic. Some of the developments includes that according to the former Director of the Central Bureau of Investigation (CBI), R.K. Raghavan, though FGM is not explicitly an offence under the IPC, on a complaint, the police would be obligated to register a case under section 326, IPC. This statement has given hope to many to come forward and fight against this practice. 
 The National Commission for Women had said that it supports the demand for a law to end the practice of Female Genital Mutilation (FGM) in India. The Supreme Court on 8th May, 2017 had issued notice to Centre and 4 states namely Gujarat, Rajasthan, Maharashtra and Delhi on a public interest litigation (PIL) filed by an advocate seeking a complete ban on the practice of female genital mutilation and making it a punishable offence. A bench which had the then Chief Justice of India JS Khehar, Justice DY Chandrachud and Justice Sanjay Kishan Kaul heard the petitioner and issued notice to the Centre. “This issue is extremely sensitive and important,” noted the CJI.
Union Minister Maneka Gandhi had also given a statement supporting the issue in the “We will write to respective state governments and Syedna, the Bohra high priest shortly to tell their community members to give up FGM voluntarily as under Indian Penal Code (IPC) and Protection of Children from Sexual Offenses (POCSO) Act, 2012, it is a crime.
All these incidents show the changing view of the people as well as the law makers in regards of this barbaric activity.
CONCLUSION
The practice of female genital mutilation is a very derogatory, barbaric and inhumane activity against the young girls. It is prevalent in India and is practiced under the veil of culture and religion but needs to be curbed. In India there are certain provisions which could be used to end this practice but they are not sufficie
nt. Thus, there is a need for strict laws against this practice along with their proper implementation. Also, the government should acknowledge the presence of such practice and must take initiatives to spread awareness about such practices. Hence there is need of joint effort of both the law-makers and the people to fight against this practice.

READ  CRIMINAL TRIBES IN INDIA: A CONSTITUTIONAL ANOMALY

[1] Peters, Women’s Rights, Las Vegas Review Journal 14B, Pg 231, December 01, 1996


[2] National Health Service, Female Genital Mutilation, (2017) http://www.nhs.uk/Conditions/female-genital-mutilation/Pages/Introduction.aspx

[3] WHO, Health Risks of Female Genital Mutilation

[4] National Health Portal of India, Female Genital Mutilation

[5] WHO, Eliminating Female Genital Mutilation

[6] Sahiyo, First Online Study On Khatna, (Jan 2016), https://sahiyo.com/2016/01/

[7] Blaine Harden, Female Circumcision: A Norm in Africa, International Herald Tribune, Washington Post Service, Pg. No. 5, 29 July 1985

[8] Asma El Dareer, Attitudes of Sudanese People to the Practice of Female Circumcision, International Journal of Epidemiology, Pg. No. 138, 1983

[9] Blaine Harden, Female Circumcision: A Norm in Africa, International Herald Tribune, Washington Post Service, Pg. No. 5, 29 July 1985

[10] Fran P. Hosken, Female Sexual Mutilations: The Facts and Proposals for Action, Lexington, MA, Women’s International Networks News, Pg. No.21, 1982

[11] WHO, Global strategy to stop health-care providers from performing female genital mutilation, 2010

[12] WHO, Female Genital Mutilation Facts Sheet, (2017), http://www.who.int/mediacentre/factsheets/fs241/en/

[13] UNIVERSAL LAW PUBLISHING, INDIAN PENAL CODE (45 OF1860)

[14] Manfred Nowak, UN Special Rapporteur on Torture, Physical and Mental Consequences of FGM

[15] UNIVERSAL LAW PUBLISHING, INDIAN PENAL CODE (45 OF1860), SECTION 326- Voluntarily causing grievous hurt by dangerous weapons or means—Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to re­ceive into the blood, or by means of any animal, shall be pun­ished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

[16]  PM BAKSHI, THE CONSTITUTION OF INDIA, 15TH EDITION

[17] POCSO ACT 2012 BAREACT

[18] CEDAW GENERAL RECCOMENDATION NO. 14

[19] JYOTI SHELAR, Declare India country with FGM prevalence, THE HINDU, DECEMBER 09 2016

[20] Sunita Tiwari vs. Union Of India and Ors. (24.09.2018 – SC Order): MANU/SCOR/29990/2018

[21] Khursheed Ahmad Khan vs. State of U.P. and Ors. AIR 2015 SC 1429

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