GENITAL MUTILATION AND HOW IT AFFCTS THE CONSTITUTIONAL RIGHTS OF WOMEN

This article is submitted by Indrani Majumdar during her internship at LedroitIndia

ABSTRACT

Female Genital Mutilation is one of the most glaring examples of violence against women. It can be found in various corners of the world even here in India. This paper aims to highlight the plight of women who have to go through this inhumane practice and are subjected to sexual, mental and physical violence. The paper tries to establishes the violative nature of this practice, which violates the fundamental rights of women and also establishes the gap in justification of this practice as a religious freedom. It further acknowledges the existing laws used for the prevention of this practice and provides for the requirement of special legislation and brings to light the lacunae in the law for the protection of women and children. It is a practice that needs to be stopped and protection should be provided to women and children.

INTRODUCTION

Women all around the world are subjected to various kinds of violence and oppressive means. There are still various practices that are carried out today, in the name of tradition, that hinders the quality of life and violates the basic rights of women. Female genital mutilation is one such practice still prevalent in the present society. Female Genital Mutilation also known as FGM or female circumcision consists of procedures that involves the complete or partial removal of the external part of the female genitalia or any other injury caused to the female genatalia for non-medicinal reasons. This practice is generally carried out by a ‘traditional circumciser’ with the help of a blade and with generally low or no sanitation. Female genital Mutilation is usually carried out in girls within the ages of one to fifteen years, which not only makes it a violation of women’s right by also a child right’s violation, but it may also be carried out on adult women if seen fit according to the community.
According to World Health Organisation (WHO) and the United Nations Children’s Fund (UNICEF) , Female Circumcision or Female Genital Mutilation can be classified into four different categories:

I. The complete or partial removal of the head of the clitoris, the skin or the external area of the clitoris.
II. The complete or partial removal of the labia minora and other clitoral glands. The removal of labia minora can be done with or without removing the labia majora or any part of the outer folds of the vulva.
III. The closing of the vagina or narrowing of the same through the process of infibulation.
IV. Any other dangerous procedures which otherwise would not be required medically .

Female Genital Mutilation is a practice which takes place all around the world. “One-quarter of the FGM instances in the world are accounted for in the Middle East and Northern African region, with prevalence ranging up to 94% in the Djibouti region.” “ Even though high concentration exists in the Asian province with prevalence inactions like Indonesia and Maldives, it is remotely present even in the advanced regions of Europe, North America, and Australia.” It was also observed that the practice of Female Genital Mutilation is also practiced in certain places in Latin America and other Asian countries like Malaysian, Oman and India.

FEMALE GENITAL MUTILATION IN INDIA

The inhumane practice of Female Genital Mutilation is practiced in India mostly in one of the particular communities of the Shia sect. of Islam, known as the Dawoodi Bohra Community. This community is mostly concentrated in parts of Gujarat, Rajasthan, Maharashtra, Madhya Pradesh& Kerala.
Female Genital Mutilation is deemed to be a ritual that flags the coming of age of women and seen as an initiation of womanhood. In the Bohra community the ritual of ‘Katna’ or ‘Khafz’, the colloquial term for Female Genital Mutilation, is mainly performed on pre-pubescent girls and is part of the traditional circumciser is mostly played by the women in the same family, like the mothers and the grandmothers altough other women from the same community may also be involved. The rituals that followed in India are of type I and type II as per UN classification . The clitoral hood is said to be a source of sin or ‘Haraam Ki Booti’ as it it is thought to make women immoral.
The main reason for conducting such a practice is mostly traditional and religious and is done to curb the sexual desires or drive of the woman or girl. However, the ritual of Female Genital Mutilation is not sanctioned by the Quran but by the Daimul Islam, which is the religious text of the Bohra community. It is believed that the practice of Katna is Sunnat, a traditional practice of the Prophet Muhammed, which forms a model of code of conduct for the members of the Islamic community tofollow. Therefore, although it is seen as an optional practice, not performing it would be seen as a sin.
Unfortunately, there are still no specialized legislation on this regard . However, a Public Interest Litigation has been filed by a group of Human Rights Lawyers.

INFRINGEMENT OF CONSTITUTIONAL RIGHTS

The practice of Female Genital Mutilation violates several constitutional rights of women.
The practice of genital mutilation violates the rights enshrine in Articles 14, 15 and 21 are violated.
Article 14 of the constitution of India guarantees the protection of life and liberty and equality before law. It states “No person shall be deprived of his life or liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the law within the territory of India.”.
And Article 15 of the Constitution which guarantees the right to freedom from discrimination of any kind, stating “ Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”. violated as this practice can be considered to be a case of gender stereotyping and gender based violence which goes against the principles of equality provided in the Constitution.

Moreover, it is violative of one of the central rights enshrined in the constitution , the right provided under Article 21 of the Constitution which guarantees the right to life and personal liberty, it states “No person shall be deprived of his life or personal liberty except according to procedure established by law.” as this practice considers women to be an object of sexual desire and that are required to be “protected” from others. It does not treat women as people but as possessions in control of others. It is a practice that targets women and takes away the autonomy that women are supposed to have on their own bodies, it takes away their personal liberty and subjects them to unnecessary trauma. Not only that, as the procedure or mutilation is done by people who are not trained in the field o medicine, it poses risk to the health and life of the woman. This practice is a shameful and regressive social evil that reduces a woman’s worth to nothing and hence hindering the right to life, the right to life which includes the right to live with dignity and respect. The practice of Female Genital Mutilation is traumatizing and inhumane and women have reported to suffer from mental distress and mental illness like PTSD, Depression, etc. long after the procedure had been done. This in no way supports a life of quality and sanctity.
The right to life and liberty enshrined in Article 21 also includes the right to privacy, which further includes the right to sexual and reproductive autonomy.
In the case of Justice K. S. Puttaswamy v. Union of India (2018), it was held by the Supreme court of India that “When a child, who is incapable of understanding the long term consequences of FGM is subjected to it, her right to sexual and reproductive choices is taken away from her.”
Further, in the case of Sunita Tiwari vs Union of India, a Public Interest Litigation was filed to ban the inhumane practice of Female Genital Mutilation.
She stated that the practice is violative of multiple fundamental rights , like right to life, liberty, privacy , equality and right against discrimination on the basis of sex, enshrined in the constitution and hence this practice should be banned.

FEMALE GENITAL MUTILATION NOT JUSTIFIED AS A RELIGIOUS FREEDOM.

Although , it violates several fundamental rights, the supporters of this practice argue that Female Genital Mutilation is considered to be an ‘essential religious practice’ prevalent in the Bohra community and therefore, comes under the ambit of the freedom of religion and religious freedom under the constitution. The constitution of India provides every citizen of India, the right to religious freedom and right to manage religious affairs under Article 25 and Article 26. The justification of Female Genital Mutilation is also based deeply on patriarchal grounds which comes in strong contrast to the right to equality of all citizens.
It is not very clear whether the practice of Female Genital Mutilation can be declared as a essential religious practice as it is only practiced in the Bohra community and no other sect of Islam follows this practice. The application of the ‘essential religious practice’ doctrine requires the practice to be an inalienable aspect of the religion . Furthermore, for Article 25 which guarantees ‘freedom of conscience and free profession, practice and propagation of religion’ but this freedom is “subject to public order, health and morality”, which in this case seems to be absent. The genital mutilation of women is a regressive practice that neither restores hope in public Order, causes harm to mental , physical and sexual health of the woman involved nor is moral as it is based on harming a person . Therefore, it cannot be said to be justified under Article 25 and 26 of the Indian Constitution.

LAWS AGAINST FEMALE GENITAL MUTILATION

Although , the practice of Female Genital Mutilation is violative of the constitutional rights and human rights in India, there still is no specific law against this practice. However, there are other laws which can be used to punish the perpetrators and bring justice to the victim, but these laws are limited in nature, if the act cannot be brought under the ambit of these laws, then it cannot be considered a crime. These laws include The Indian Penal Code, 1921 and the Protection Of Children From Sexual Offences Act(POCSO) , 2012.
Under Sections 319 to 329 of the Indian Penal Code which provides for infliction of hurt and grievous hurt on an individual , wherein ‘Hurt’ must constitute the elements of causing bodily pain, infirmity or disease to another person. and grievous hurt must constitute, “Any hurt which risks life or which causes the victim to be during the time of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.” , a person guilty of ‘Hurt or ‘Grievous Hurt’ shall be liable for imprisonment up to seven years with or with fine. Female Genital Mutilation can be included under the definition of ‘Hurt; or ‘Grievous Hurt’ as it may render a person incapable of normal bodily activities such as passing urine or menstruation, and cause them pain both mental and physical. Further it puts the victim in severe risk of infections, hemorrhage and sepsis which may be fatal.
The Protection Of Children From Sexual Offences Act (POCSO) , 2012, further, makes penetration and sexual assault a crime and punishable by law. According to Section 3 of the Act, penetration may include insertion of any object into the vagina of the child, to any extent . In case of this practice, the mutilation of the child’s genital using a sharp object could, therefore, be considered as penetrative sexual assault and hence, be considered a crime.
These laws only come in use as there is no specific laws protecting young girls against this regressive practice and hence, bringing to light, the lacunae in the route to justice.

REQUIREMENT FOR SPECIFIC LEGISLATION

Although, there are certain laws in place that indirectly hold the perpetrators accountable for their actions , but have failed to reduce the number of cases of Female Genital Mutilation. Unfortunately, this practice is not just a crime but also a delicate socio-cultural issue, which has made its criminalisation complicated. It is a practice that has been normalised and taken under the blanket of tradition and religious custom which further makes the abolishment of the practice difficult. However. It is required to be acknowledged that even if it is a practice that is considered acceptable and religiously rewarding, it still cause harm and inflicts injury. It is not a practice that is in good faith, keeping in mind the welfare of the women and female children.
Special Legislations are needed to curb this practice and make its punishment more stringent. Furthermore, bringing this matter to the knowledge of the masses may break the taboo surrounding it and encourage more women to speak up for their rights. There needs to e alegal framework and backing for the victims of Female Genital Mutilation as well. India being a part of various human rights policies in the United Nations should take necessary steps for preventing such gross violation of the same.

CONCLUSION

The practice of Female Genital Mutilation is a regressive practice which violates the basic rights of women and children. It is one of the types of gender-based violence prevalent all over the world, even here in India. Women are subjected to unnecessary hurt and trauma. Although there are laws that criminalises causing hurt or grievous hurt and sexual assault, it still does not criminalises the practice of Female Genital Mutilation, and thus no reduction in the practice has been seen.
It is very important for India to criminalise this practice as it goes against the principles of fundamental rights enshrined in the constitution . even though some people argue that it comes in the ambit of religious freedom, it cannot be said so as it infringes fundamental and human rights. It is a social evil and needs to be eradicated. It is high time that such customs that are oppressive and regressive in nature with respect to women should be done away with to ensure a more egalitarian society. Social change can only come through legal change.

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