Female Genital Mutilation (FGM) - Social evil which must go

Female Genital Mutilation (FGM)- Social evil which must go

When our constitution was framed it was enshrined with rights of equality, personal liberty without any gender bias. Our fundamental rights equally protect men and women. FGM is one such practice that deprives Indian women of their basic right of personal liberty and equality. India is independent since 70 years but we are still slaves of feudal and patriarchal beliefs.

A custom & a traditional practice that sanction to pierce girls’ private parts and deprive her of rightful living is nothing but a brutality.

FGM is a traditional practice that involves slicing a woman’s clitoris. The underlying concept is that it cleanses the girl, making her pure prior to entering into a matrimonial alliance. Words that came to associate with the girls undergoing this cutting procedure were, “Pure”, “Marriageable”, “Honourable”, “Worthy” further to convince that this customary practice is for their own good and should be followed without any question. This misbelief grew over time and became a custom. Thus, taking it forward and bringing it down to the next generation of girls producing more victims in the process.

Why women are subjugated to FGM?

One among many factors is to curb the sexual desire of women with a sole motive that a woman does not go astray after marriage. There cannot be a better example of feudal, barbaric and patriarchal practice.  Sexual preference is also covered under right to personal liberty and choice. Dawoodi bohra community claims that it is their custom and it holds religious sanctions but their no religious scripture or rather no scripture in the world has mention of this practice. Till now no community in the world has been able to render any scientific or spiritual evidence of this practice. WHO in its 2019 report claims that there are no health benefits, only harm. This mindless practice exposes girl child to plethora of health risks including sexual & psychological problems. FGM in many communities believed to reduce a woman's libido and therefore believed to help her resist extramarital sexual acts. However, no medical evidence has established this fact so far.

FGM in India & its legal position

In India, bohra community is primary practitioner of this heinous practice. Their practice is largely based on religious beliefs. In accordance with their religious belief they carry out this practice on girls of 7 to 9 years. In their local dialect it is also known as Khatna or Khafz.

The first legal battle against Khatna  in the country began when the Supreme Court of India admitted public interest litigation in May 2017 which challenged the practice on the basis that it violates the security of the person, the right to privacy, bodily integrity and the freedom from cruel, inhumane or degrading treatment. The court sought the response of the central government and fourt state governments to the petition.

Since there is no law in India which prohibits FGM, it is likely that Honorable Judges will deliberate upon whether khatna is protected under the religious freedom guaranteed under Article 25 of the Indian constitution or whether it falls under the exception of public order, morality, health and protection of other fundamental rights, particularly the right to life guaranteed under Article 21.

Courts of several countries including USA & Australia have charged spiritual leaders, medical professionals for performing FGM on young girls. Several countries including the UK, Australia, Canada and the US have already introduced laws against FGM. The same is true for several African countries where FGM is most rampant. Lawyers Collective, an NGO working for human rights in India, has argued in favour of separate legislation to penalise FGM in the country. However, while a law would undoubtedly be a positive step, the problem is embedded far too deeply within communities to be wholly eradicated by textbooks or parliamentary enactments. Till now there is no act made by state or central Govt. which include penal provisions against FGM.

Modus operandi of this practice as narrated is that the girl is taken to a room, laid down, her pants removed and the next moment is a loud, shrieking voice of that young girl, crying in pain. Victims of genital mutilation have shared their traumatic experiences from the past when they underwent the knife. The circumcised portion of the skin is termed as “Haram ki boti” as it is meaning the sinful piece of flesh that serves as a source for depraved or immoral urge in women. Admitting in denial of this urge then also no one has a right to violate right of personal liberty which include liberty of sexual preference and choice. Recent Judicial precedents has laid down that the freedom to decide on one's own consensual adult relationships, including the gender of that person, without the interference of the State is a fundamental human right. To prohibit the relationships of people of diverse sexual orientation and suppression of sexual urge is a breach of the right to sexuality and the right to privacy.

Continuance of this practice is a breach of right to personal liberty and right to privacy. Honorable Supreme Court is to decide upon the legal position of this practice but certainly it is a social evil which must go.

Prateek Som

Advocate-Supreme Court of India

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