[dropcap]F[/dropcap]emale Genital Mutilation (FGM) is altering or injuring the female genitalia for non-medical reasons and is most common in the countries across Africa, Middle East, Latin America and in India. It is usually practised by the Muslim Bohra community and is usually performed by either partial removal of the clitorial hood or total excision of the labia minora and stitching the vaginal orifice or scraping and introduction of corrosive circumstances into the vagina.
The World Health Organisation (WHO) defines FGM as comprising “all procedures involving the partial or total removal of the external female genitalia or other inquiry to the female genital organs for the non-medical reasons”.
To lay out the context better, it may be pointed out that the biological function of the clitoral hood is simply to protect the clitoris glans from friction and other external forces, since clitoris is an extremely sensitive part, having over 8000 nerve endings. Thus advocating for a cutting of the clitoral hood, on the premise that women need to be protected from the sexual desires, means exposing 8000 nerve endings of the clitoris, which is not only hazardous health-wise but also amounts to a tremendous loss of human dignity and autonomy for the woman and/or the girl child.
On May 8, 2017, the Supreme Court entertained a Public Interest Litigation [PIL] which sought to challenge the practice of FGM or “Khtna” on the ground that such an archaic ritual, which neither has any mention in the Holy Quran, nor any medical reason whatsoever, must be done to dust. The Petitioner had prayed that the practice be declared as a cognizable, non-compoundable and non-bailable offence. The Bench issued notice to the Centre observing the matter to be an “extremely important and sensitive issue.” In the backdrop of this PIL, the Union Minister for Women and Child Development, Maneka Gandhi while addressing the issue, stated: “If Dawoodi Bohra community does not agree to give the archaic practice, then the Government will enact a law to prohibit it.” She further added: “It is a crime under the Indian Penal Code and the POCSO Act.”
Replying to the notice issued by the Supreme Court, the Centre represented by Attorney General KK Venugopal pressed that the matter necessitates the Court to step in and issue directions by virtue of the powers conferred by the Constitution of India. On being asked to place his opinion, the Attorney General went on to submit that the FGM is a barbaric practice which violates pre-conditions of public order, morality and health imposed under Article 25 and 26 of the Constitution and it also cuts through the right to bodily integrity as recognizsd by the nine-judge Bench decision in the Puttuswamy case.
Question of ‘essentiality’
On behalf of the Respondents, Abhishek Manu Singhvi argued on the test of essentiality. On a concern being raised by Justice DY Chandrachud with respect to the fact that no professional medical experts are associated with this act, Singhvi claimed the practice has been in place since the 11th century when there were no hospitals and stressed on his submission of the practice having thereby attained the strength of being an “essential practice”. Singhvi stated: “’Taharah’ or ‘purity’ which is one of the seven pillars of the Fatinid School, requires the performance of ‘Khtna’, which is believed to secure the religious and spiritual purity, necessary for offering prayers.” However, Justice Chandrachud on August 20, 2018, turned down this submission and remarked that “merely because a practice is from 10th century, it cannot be considered as an essential religious practice”.
Ostracisation of reformists by Bohra community
In the meanwhile, an Intervening Application was allowed by the Court, and Masooma Ranalvi, the intervener, was represented by Senior Counsel Indira Jaising. Ranalvi herself is a survivor of this barbaric act which she suffered at the tender age of seven and faced a series of problems thereafter. It has been put on record in her application that all the women in her family (28 in all) have gone through the tragic experience and that she has now started an organisation with similarly placed women, a collective known as #WeSpeakOut. She has claimed in her petition that because of her spearheading the challenge to FGM and similar initiatives, she has been boycotted by the head of the Dawoodi Bohra community. Ranalvi has also claimed in her application that her father had been excommunicated in his late 70s for having joined the reform movement, that her immediate family had to sever ties with its extended family members. Ranalvi also claimed that when her father expired, he was denied a spot in the traditional burial ground.
Senior Advocate Indira Jaising in her written submissions submitted to the Court has cited a report titled “The Clitoral Hood – A Contested Site”, commissioned by #WeSpeakOut and Nari Samiti Manch in 2008, which states that “75% of all daughters of the study sample were subjected to FGM/C”. This is evidence that the act still continues to be practised on minor girls in the country. The report also states that “97% of women who remembered their FGM/C experience from childhood recalled it as painful”.
Despite sex being a taboo topic, approximately 33% of women subjected to FGM/C in the study believe it has negatively impacted their sexual life. Low sex drive, inability to feel sexual pleasure, difficulty trusting sexual partners, and over-sensitivity in the clitoral area were some of the problems identified by several women as per the report. Close to 10% of the women who had undergone the procedure in the current study specifically mentioned urinary problems, recurring utis, burning and incontinence. In addition, one of the study participants reported bleeding of the clitoral hood area due to irritation. Many respondents in the study reported feeling fear, anxiety, shame, anger, depression, low-self-esteem, and/or betrayal of trust as some of the fallouts that they associated with their FGM/Khtna.
This report clearly points out that FGM has both short term and long term ill-effects on the health and psychological well-being of the victims. “The severity of the cutting/mutilation directly corresponds to the harm suffered. Since anaesthesia is rarely used on the victim during the procedure, there is extreme pain. The other short-term health risks are excessive bleeding, swelling and inflammation in the genital area, infection, urinary problems and in some extreme cases, even death. The long-term consequences include chronic genital infections, recurring urinary tract infections, painful sexual intercourse, complications during pregnancy, labour and delivery of the child, perinatal risks and debilitating psychological consequences like Post traumatic Stress Disorder (PTSD) and depression. FGM thus affects the health and social development of girls and women,” argued Jaising.
In her written submissions, Jaising also referred to a report titled “A Guide to Eliminating the Practice of FGM in India”, published by Lawyers Collective and #WeSpeakOut, in 2017, which has correctly identified other ill-effects of this inhumane act. The report states: “FGM is widely perceived as a way of controlling female sexuality. Sexual desire in girls and women is viewed as something that needs protection and it is perceived to be a family’s duty to circumcise their daughters to provide this protection. Not only can FGM/C provide physical protection by creating a barrier to intercourse but it is also perceived as a way to cleanse a girl from impure thoughts and desires. Female circumcision or FGM/C seeks to protect a woman’s virginity before marriage by reducing her enjoyment of intercourse, and on marriage it is seen to dissuade her from being unfaithful to her husband.”
Criminal liability of FGM
Jaising went on to counter the plea put forth by Singhvi with respect to the practice having attained the benefit of “essentiality test” by contending that an act which attracts criminal liability cannot be said to be an “essential practice” under Article of the Constitution. She has argued that the condemned practice attracts the charges under Sections 319-326 of the Indian Penal Code and Sections 3-8 the POCSO Act. On being countered by Singhvi who questioned the existence of the ingredient of “sexual intent” in such practice so as to attract the provisions of POCSO Act, Justice Chandrachud interfered to correct him that existence of “sexual intent” in not sine qua non for Section 3 of the POCSO Act to apply.
International rights and constitutional framework
Jaising also stressed on the international legislative framework from Nigeria, United Kingdom, Australia and Ireland and argued the need to have an exclusive law to curb the barbaric practice. She also placed reliance on international conventions like UDHR, UNCRC, ICCPR and CEDAW which categorically recognise such an act to be in derogation of the human rights and one’s right to live with dignity. She also stressed on the fact that in the year 2015, all the United Nations member states, including India, adopted the Sustainable Development Goals which includes a global target in Para 5.3: “Eliminate all harmful practices such as child, early and forced marriage and female genital mutilation.”
With respect to the constitutionality of the practice, Jaising contended that the practice violates Articles 14, 15 and 21 of the Constitution. She argued that, “Dignity is the core principle which unites the fundamental rights of the Constitution. The right to dignity includes the right of the individual to develop to the full extent of their potential and the right to autonomy over fundamental personal choices.” She further submitted that “the practice of FGM is widely perceived as a way of controlling a female’s sexuality and sexual desires and women are viewed as someone who needs protection. It is perceived family’s duty to cut their daughters to provide them the protection. This is deepened in the patriarchal roots of society where women are viewed as objects, which is an infringement of their right to dignity and equality.”
Addressing the issue whether the practice of FGM can be protected under the purview of Article 25 and 26 of the Constitution, Jaising expressed her strong opposition. She reinstated that the “State has enacted legislation to prevent bodily injury to all children as defined in POCSO and in the IPC regardless of race, case or religion to which they belong. The said laws apply equally to the Bohra community. Considering that the acts that constitute FGM/Khtna are criminal in nature, they cannot be protected by Article 25. And the state cannot give recognition to the practice of excommunication of the community for failure to perform FGM/Khtna”. Moreover, she contended that, in any case, the exception under Article 26 will apply to such practice.
“The principle of gender sensitivity is entrenched in the Constitution and when you are thinking of affirmative action in favour of women, you cannot reverse the process”, observed CJI Dipak Mishra while hearing the much contested issue of the challenge to the practice of female genital mutilation. Justice DY Chandrachud remarked also couldn’t restrain himself from making an observation that “One has supreme authority over genitalia.. It is central to one’s identity, dignity and autonomy”.
Classic child/gendered abuse
It is clear that FGM in any format is a form of child abuse as it is done on minors, in secret. It is a dehumanising practice resulting in diminution of the human body of the female sex and is intended to reduce or eliminate her sexual pleasure in adult life. The practice mutilates the body of the female in a very essential manner, namely, the ability to enjoy sex and indeed results in experiencing pain during sexual intercourse. The act makes the sufferer less than human in they she suffers a loss of her human dignity and bodily integrity.
There can be, and will be, no excuse to legitimise such an abhorrent practice in any way. Further, there have been cases where it has caused deep emotional damage between the daughter and the mother as it comes to signify a deep breach of trust. If India is to eliminate, eradicate and root out the outdated practice of FGM/Khtna from the country, then it has to be done in a systematic multi-pronged manner with the complete coordination and cooperation of the government agencies and the community, the police and health professionals with an urgent need to educate, create awareness and training front end professionals such as doctors, medical professionals, teachers, nurses, in dealing with the issue and practice of FGM.
Also read: Female genital mutilation: Why should the bodily integrity of a woman be subject to an external authority, asks Justice DY Chandrachud