FEMALE GENITAL MUTILATION IN INDIA
Author: Lekshmi Ramesh, II year of B.A., LL.B. from Kerala law Academy law college, tvm, Kerala
The practise of female genital mutilation is widespread in India since time immemorial. Female genital mutilation is a procedure which involves partial or complete removal of female genital organ for non-medical reasons. The female genital mutilation is mainly carried out on girls between the age group of 1 to 15. But occasionally married and adult women are subjected to this practice. The practice is not something which exists only in India. The female genital mutilation is widespread in different parts of the world as well. Apart from in India, the practice is more common in 30 countries across Africa and some countries of Asia and even among the migrants of Latin America.
The issue of female genital mutilation in India was bought to light when the human rights advocated filed a PIL in the Supreme Court by issuing the writ of Mandamus to ban the practice of Female Genital Mutilation in India. The practice is an offence under section 320, 322, 335, 336, 337, 338 and 340 of the Indian Penal Code. There is no specific law on the subject of female genital mutilation. The practise of female genital mutilation is against the fundamental right of Article 14 and Article 21 of the Indian Constitution. As per the reports of the United Nations around 4.1 billion girls around the world underwent female genital mutilation in 2020.
THE INDIAN SCENARIO
In India, the practice of female genital mutilation is carried out in Western India by the Dawoodi Bohra community, which is a sect of Shia Muslims. In the Bohra community, the practice is called “khatna”. In African countries, the practice is called infibulation is followed. It is a practice where the entire external genitalia, clitoris and the labia minora and Majora are cut and after that, the vaginal passage is stitched up. Female Genital mutilation is locally called as ‘khatna’ or ‘khafz’. When an online survey was conducted by a non-governmental organization, Sahiyo among the Dawoodi Bohra women, it was surprising to learn that almost 80 percent of women had undergone female genital mutilation.
The supporters of this practice had argued that it is an essential religious practice of the Dawoodi Bohra community and this practice is protected under Article 25 and 26 of the constitution. The practice of the female genital mutilation poses a threat to the health of the individuals. Therefore, the practice cannot be justified under Article 25 of the constitution. According to Article 15(3) of the Indian Constitution, the state has the authority to make special laws to uplift the condition of a woman. Furthermore, Article 25 and 26 of the Indian constitution is subjected to other fundamental rights enshrined in part three of the constitution of India. Also, female genital mutilation is a threat to the right to life and personal liberty which is said in article 21 of the Indian Constitution.
In the case of K.S.Puttaswamy V. Union of India (2017(10) SCC 1), it was held that the right to privacy is an intrinsic part of the right to life and personal liberty under Article 21 of the constitution of India. Also, in the same judgement, it was said that the right to privacy is inclusive of sexual and reproductive autonomy. So here, the child is not able to understand the possible consequences related to female genital mutilation her sexual and reproductive choice is taken away from her.
Moreover, section 319 to 326 of the Indian penal Code, 1860. lays down the provisions for the hurt and grievous hurt. Female genital Mutilation makes the victim incapable of performing normal bodily activities like urinating and also it makes sexual intercourse very painful. Therefore, the practice of female genital mutilation can be regarded as hurt or grievous hurt and this may amount to seven years of imprisonment with or without fine.
Also, according to section 4 of the Protection of Children from Sexual Offences,2012 the offence of penetrative sexual assault inflicted on children below the age of 18 years is a criminal offence. Here as per section 3 of the Protection of Children from Sexual offences penetration involves the insertion of any objects into the vagina of the child to any extent. Female Genital Mutilation is regarded as a form of penetrative sexual assault to the children.
The issue of female genital mutilation is an issue which has to be dealt with seriously. The female genital mutilation can cause a lot of health issues for women. Although the provision of Protection of Children from Sexual Offences Act and certain provisions of the Indian Penal Code punishes the practice of female genital mutilation has not declined. The main reason behind this is that there is no separate legislation which deals with this issue. The legislation which governs female genital mutilation is the need of the hour. If legislation is there countering this practice the issue of the female genital mutilation would be discussed in the public.
It is the need of the hour to end such traditions which oppress women. Such evil practices should be curbed to curb the exploitation of women. The right to freedom of religion should not violate any other fundamental rights enshrined in part three of the constitution.