Recently, the Supreme Court sought response from the Centre on a petition to outlaw female genital mutilation (FGM) in India. The World Health Organisation (WHO) defines FGM as “all procedures involving partial or total removal of the external female genitalia or other injuries to the female genital organs for non-medical reasons”. The practice is condemned internationally on grounds that it is discriminatory and amounts to cruelty against girls. The US outlawed FGM in 1996 and recently, a doctor of Indian-origin was charged with performing FGM (believed to be the first such case in the US). Interestingly, the defence in the US trial case would be arguing that FGM is a religious right protected under the US Constitution.
Earlier this week, Lawyers Collective (a prominent NGO working on human rights issues in India) in collaboration with Speak Out on FGM (a group of women who have been victims of FGM in India) proposed a legislative framework to ban FGM in India. The Indian government must pay heed and take steps to ban FGM as it is unconstitutional and an egregious violation of human rights.
In India, FGM (also referred to as female khatna) is prevalent only in the Dawoodi Bohra community, a Shia Muslim sect with roots in Africa. FGM is carried out to control a woman’s “sexuality”, and young girls between infancy and the age of 15 are made to undergo this extremely painful (and traumatic) procedure. The consent of a girl is never taken, and the procedure is conducted forcefully, according to Al Jazeera, on the victims. According to the United Nations Population Fund (UNFPA), one of the reasons for performing FGM is the belief that a woman’s sexuality is “insatiable” if parts of her genitalia (especially the clitoris) are not removed. Proponents of FGM believe that the practice helps ensure “virginity before marriage and fidelity afterwards” and “increases male sexual pleasure”.
Is female khatna obligatory under Islam?
Those who oppose female khatna, including certain Muslim scholars, argue that the practice does not find any mention in the Quran, and is merely a cultural practice (as opposed to a religious practice). According to Qasim Rashid, an Islamic scholar, the practice of FGM predated Islam and was practised by others such as Christians and Jews as well. Some scholars have also observed that although the Quran does not refer to khatna, this practice is understood as "sunnah" (a tradition derived from the life and teachings of Prophet Mohammad). Even then, the practice under the sunnah refers only to male khatna, ie, "male circumcision" (or the removal of the foreskin from the penis in men). Circumcision is understood to be one of the five Islamic "fitra" (acts of a refined character) prescribed for a male. Male circumcision, therefore, was historically carried out for the purpose of hygiene and to prevent sexually transmitted diseases such as HIV. Some people point out that it is wrong to compare male circumcision with FGM, as the former can be considered a religious or cultural practice, but the latter has no such basis. Further, while male circumcision is not known to cause any adverse health or psychological impact, FGM is both traumatic and medically undesirable.
The psychological and medical impact of khatna on women
FGM causes sexual intercourse among women to be painful and difficult and may result in serious medical complications such as urinary infections, septicemia and haemorrhage, says The Telegraph. FGM is also known to cause hepatitis and tetanus when performed in poor hygienic conditions. A WHO study states that FGM significantly increases risks associated with childbirth to both the mother and child.
Apart from health risks, FGM can also cause mental health problems such as post-traumatic stress disorder (PTSD), depression, anxiety, and memory loss, etc.
FGM as a violation of human rights and constitutional rights
In 1993, the United Nations Declaration on the Elimination of Women recognised FGM as a form of "violence against women". The practice also goes against the UN Convention on the Rights of the Child which India has signed and ratified. In particular, Article 19 of the convention obliges countries to take all appropriate legislative measures to protect the child from “all forms of physical or mental violence, injury or abuse” while in the care of parents/legal guardian(s). Further, the Universal Declaration of Human Rights (UDHR) states “No one shall be subjected to torture or to cruel, inhuman or degrading treatment.” Not only is FGM an act of cruelty, but also amounts to gender inequality and discrimination against women. The UN Convention on the Elimination of all forms of Discrimination against Women (CEDAW), although not expressly referring to FGM, is aimed at ending gender-discriminatory practices.
FGM violates several fundamental rights guaranteed under the Indian Constitution including Article 14 (right to equality), Article 15 (prohibition against discrimination on the grounds of sex) and Article 21 (right to life and personal liberty of an individual). FGM can also be said to violate a woman’s right to privacy, freedom from violence and her physical integrity, all of which are aspects of an individual’s right to life.
FGM banned in other countries
The practice of FGM is not endemic to India, and several countries have already banned this practice. Section 645 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 criminalises FGM in the United States. Britain criminalised FGM way back in 1985, and last year, Australia convicted the leader of an Islamic sect for FGM (the first ever conviction for FGM in Australia).
The central government recently asked the Dawoodi Bohra community to voluntary give up the practice of female khatna. Given that this practice is being carried out in secret (even in big cities like Mumbai), the Centre must be proactive and enact a legislation to ban this practice in the country. As proposed in the Lawyers Collective report, amendments must also be made in the Code of Ethics Regulations (2002) by the Medical Council of India, to define FGM as a "professional misconduct". This would ensure that doctors and health professionals refuse to perform FGM, and help eliminate this barbaric practice in India.
The author is a research fellow at Centre for WTO Studies, Indian Institute of Foreign Trade. She is also a volunteer at Strategic Advocacy for Human Rights (SAHR)
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Updated Date: May 25, 2017 20:19:49 IST