Author: Chandril Chattopadhyay, II year of LL. B(Hons.) from Department of Law, the University of Burdwan
Co-author: Nikita Mukherjee, II year of LL. B(Hons.) from Department of Law, the University of Burdwan
Introduction
The World Health Organization defines Female Genital Mutilation (FGM) or Female Circumcision (FC) as the partial or total removal of the external female genitalia, or other injuries to the female genital organs for non-medical reasons and specifically as a socio-cultural traditional practice. It is alternatively known as "cutting" and also ”sunna, gudniin, halalays, tahur, megrez, and khatna, among others".
This practice has a very erroneous social background and is practised as a custom in certain communities throughout the world. Sometimes they are performed by the traditional circumcisers who are present during childbirth or by medical practitioners in other places. However, both of these do not contribute to any visible benefits in female health and contribute to certain medical complications in the body of the woman. This is because any interference with the natural tissues and natural structures of the female genitalia is harmful.
This has been a major threat to the person's bodily integrity and her rights as an individual, thereby raising issues of Human Rights violation. Statistics say that around 200 million women and girls have undergone this devastating procedure in Africa, Asia, and the Middle East making this regressive and dangerous social practice a global evil and concern. The methods range from Clitoridectomy/removing the tip of the clitoris up through infibulation/removing of all of the external female genitalia including some part of the vagina using other methods. This can lead to issues like draining of blood, diseases, blisters, abscesses, incontinence, and loss of sexual sensation, and sometimes even death. Besides, it is a violation of Article 14 of the Indian Constitution because it takes away the right of the girl child to her own body, thereby violating her Fundamental Rights. The injury to one's mental health is also tremendous. In India, under Article 25 of the Indian Constitution, this practice must not be continued in the garb of religious practice or holy faith.
Procedures involved
Type 1>Clitoridectomy
Type 2>Excision.
Type 3>Infibulation-
Type 4> Other harmful procedures like pricking, piercing, incising, scraping, and cauterizing the genital area which causes harm to the female genitalia for non-medical purposes
Major health risks of FGM
Excessive bleeding may be caused due to the cutting of the clitoral artery or another blood vessel during the procedure.
Bodily Shock may be due to FGM.
Genital tissue swelling and inflammation may occur with local infection.
Severe pain might be caused due to damaged nerve endings and sensitive genital tissue with the lack of proper anaesthesia in the traditional practice of FGM.
Infections from the use of contaminated instruments or use of same instruments in multiple genital mutilation operations) maybe fatal.
Human immunodeficiency virus (HIV) can be caused due to use of the same surgical instrument without sterilization.
Urination problems like urinary retention and painful passing of urine.
Death can also be caused by infections, including tetanus and haemorrhage that can lead to shock.
Chronic reproductive tract infections resulting in chronic back and pelvic pain.
Menstrual problems like dysmenorrhea.
The removal of, or damage to highly sensitive tissues of the genital area, like the clitoris, may affect sexual sensitivity and lead to sexual problems
Obstetric complications may result from FGM especially having an increased risk of Caesarean section, postpartum haemorrhage, recourse to episiotomy, difficult labour, obstetric tears/lacerations, instrumental delivery, prolonged labour, and extended maternal hospital stay with risks of an obstetric fistula.
Perinatal risks and risks of death is also there.
Psychological consequences and distresses like anxiety disorders, post-traumatic stress disorder (PTSD), and depression may also be caused.
Case Studies
Sunita Tiwari vs Union of India (2017)- A PIL was filed before the Supreme Court of India by the human rights advocate, Sunita Tiwari, for a ban on FGM. She raised the example of the Dawoodi Bohra community, a sect of Shia Muslims in India who allow this procedure for female children. Sunita Tiwari had argued that the practice is derogatory and that it violates the human rights of women. It is against the right to life, personal liberty, equality, and privacy. She also brought forth that it violates the Universal Declaration of Human Rights and the recognition of the same by WHO as a medical evil. She also referred to the United Nations General Assembly's 2012 resolution to eradicate Female Genital Mutilation. Countries like the USA, Australia have banned it but India does not have specific laws.
The counterarguments withheld provisions under Articles 25 and 26 of the Indian Constitution which stated that the communities who undertake this practice see it as a religious faith. Arguments like a safe and non- mutilating way of FC were put by the defence lawyer. The case was referred to the Constitutional bench of the apex court to decide whether female circumcision is an essential religious practice or not. The judgment on this case is yet to be made.
A grave violation of human rights has thus come to the fore, whereby a custom as heinous as this could not be done away with even by the apex court on the pretext of the redundant customs for which female health could be compromised. A basic dignified Judicial decision is thus still solicited from the Supreme Court of India. However, Justice DY Chandrachud had said, referring to the contentions from the defence lawyers: “Why should the bodily integrity of a woman be subject to some external authority? One’s genitals are extremely private affairs.”
16 Dawoodi Bohra women influenced by Masooma Ranalvi, all of whom were victims of FGM signed a petition openly to end this ritual. It was called “Speak Out on FGM,‟ and later they have campaigned widely to make women from the afflicted communities understand the dangers and complications involved in FGM. The first campaign had about 80,000 signatures. Similar campaigns like “Not My Daughter‟ included 150 Bohra mothers and fathers pledging that they will not put their daughter through the suffering. Masooma Ranalvi had started her campaign called “Each One Reach One‟to make the Bohras aware of the very practice and the implications.
Legal Provisions in India
The lack of explicit legal provisions hushes up any such elaborate practices in the direction. India is one of the signatories for the UN resolution for the protection of Child And Women, furthering solidarity with all the victims of such abuse. Some of the Sections of the Indian Penal Code can be used in this regard-
1. Section 320
The act of the FGM can be associated with that of grievous hurt whereby clause eight of Section 320 can be used. The various consequences that can be drawn as an analogy with that of grievous hurt have already been mentioned before.
2. Section 326
It states whoever, voluntarily causing grievous hurt using any object or by 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. The external genital cover of the hood of the clitoris is cut with a blade, sharp objects, and so on and thus it might fall under the provisions mentioned in this section.
3. Article 14 and Article 21 of the Indian Constitution are also violated that respectively guarantee the basic fundamental rights and tenets of equality, that interferes with the bodily autonomy of a woman.
4.Some other legal provisions mentioned in the Protection of Children from Sexual Offences Act, 2012 (POCSO)and The Goa Children’s Act, 2003 address the issues of penetrative sexual assault by any person on any child and “deliberately causing injury to the sexual organs of children” respectively. Thus interfering with the genital organs of female children is a violation of these as mentioned.
International perspectives
The Ethiopia Demographic and health survey (2006) states that74% of Ethiopian girls and women have undergone FG, being the most common eastern part of the country, particularly in Afar and Somalia. Middle Eastern and other African countries are also not far behind. Like IPC, Article 565 of the Criminal Code of Ethiopia explicitly states-
“Whoever circumcises a woman of any age is punishable with simple imprisonment for not less than three months, or fine not less than five hundred Birr”.
Right to be free from discrimination - The gender-based discrimination of FGMis often a pre-requisite condition for marriage for certain communities like the Maasai community, where men refuse to marry uncircumcised women. Ashenafi observed:
"The leader of Egypt's minority Coptic church stated that neither the Koran nor the bible demand or even mention female circumcision13. on the other hand, religious fundamentalists insist that religious doctrines require FGM and that the practice should continue since FGM is one of the values that define the cultural identity of Egypt against Western-imposed values.”
Therefore it is understandable how society claims over the individual rights of a woman over her body and is often systematically alienated from the mainstream if they somehow protest against getting the FGM done on their body.
Rights of the child- In Ethiopia, the girl children who undergo FGM are of the ages of 7 to-14 years old. The practice of FGM violates Art.3 of the Convention on the Rights of the Child (1989)which stipulates that the primary interest of the child should be protected at any cost and FGM must be stopped as it poses a serious psychological and bodily harm to the young girls.
The United Nations have perpetually worked on the issues of FGM since 1948 as the backward African countries, especially Ethiopia have upheld this as a social practice. Thus the responsibility falls on the Government for the eradication of the same, so that the women from these communities feel safe and their Human Rights are not violated.
The 1994 Declaration and Program of Action of the InternationalConference on Population and Development (ICPD), the Fourth World Conference on Women, held in Beijing in 1995, End FGM and similar other movements have recognized the gross Human Rights violation. Activists and Scholars have extensively spoken on the extremely dangerous practice. Efua Dorkenoo argued that female genital mutilation is a clear demonstration of gender-based human rights violation, which intends to control women’s sexuality and freedom.
Conclusion
The CEDAW (Convention for Elimination of all forms of discrimination against women) mentions FGM as a form of violence against women and discrimination based on gender. India had been a participatory nation of the convention and thereby should have abided by the guidelines of the same. It draws the guidelines to take "all appropriate measures" to "modify the social and cultural patterns of conduct of men and women" to eliminate practices that
"are based on the idea of the inferiority or the superiority of either of the sexes or stereotyped roles for men and women''. The State Parties involved must have looked into this and ensured a total eradication of the FGM which had not happened so far, thereby violating the Human Rights of these individual beings and the tenets in such protective Human Rights Protection conventions that aim to disrupt the power structures around the female body and being. As a cultural and social norm, it is practised with a religious belief and that often makes it difficult to counter it as a practice among various sections of the society. Often this grave human rights violation is garbed under the orders of the religious heads of a community, directed at making the practice mandatory to reduce libido, control sexual urges and preserve the virginity of these women before their marriage by reducing sensations in their genitalia with these violent procedures. Under the garb of such socio-religious backwardness, this criminal manhandling has been happening in some quarters of the Indian population and other regions of the world without a stop. This is as private as it is hushed and yet continued for the sake of primitive faith keeping. Stricter and individual laws like the Vishaka Judgement must be brought about to specifically deal with these social evils, along with guidelines from WHO and UN to preserve the sanctity of women's bodies, hygiene, safety, and prevention of further collateral damages as such.