Several practices carried out in name of tradition violate basic rights of
humans, and Female Genital Mutilation is one of them. The practice involves
removing of external female genitalia for non medical purposes and has serious
implication for physical, mental, sexual and reproductive health of young girls
The Author present data on prevalence of FGM across globe and India discuss
implications of the practice on human rights and rights of women and summaries
legal remedies available against the practice in India. Author finds that Indian
governments and courts do not acknowledge prevalence of FGM in India due to
which there are no specific laws that ban the practice in the country.
The Author makes a case for immediate recognition of the prevalence of the
practice across that country and need for separate and stringent laws, barring
which the practice is likely to continue unabated.
What is FGM?
Female Genital Mutilation / Cutting (FGM/C hereafter) is a coming of age ritual
or custom involving mutilation of female genitalia. The most common types of FGM/C
are partial or total removal of the clitoral, and/or the prepuce (clitoral hood)
and pricking or piercing of genitalia. The other prevalent but less common forms
of FGM/C partial or total removal of the clitoris and labia minora, with or
without excision of the labia majora and infibulation, which involves narrowing
the vaginal orifice with the creation of a covering seal by cutting and
positioning the labia minora and/or labia majora, with or without removal of
the clitoris. FGM is mostly carried out on girls between the age of 1-15 and
occasionally on adult women.
By certain estimates, more than 200 million girls and women across the globe
have undergone FGM/C till date. Though the practice is most commonly associated
with residents of and migrants from several countries in Eastern, Western and
North-Eastern regions of Africa, instances of the practice have also been
reported from Middle East and Asia.
Though there are no official reports on the same, FGM/C is practiced in India by
name Khatna or Khafz/Khafd Bohra community, a Shia sub sect found most
prominently in Gujarat, Rajasthan, Maharashtra, and Madhya Pradesh. Khatna mostly
involves cutting the tip of a girl's clitoris and is executed when the girl is
around 6-7 years old. It has been estimated that 75-80% of girls of the
community have undergone Khatna.
Criticisms of FGM and Human Rights Concerns
FGM causes physical and psychological damage to girls and women subject to the
practice, and accordingly is seen as a criminal act and against several
international and domestic covenants of human rights. FGM/C leads to physical,
sexual, and mental health issues thus depriving of enjoyment of right to highest
attainable standard of physical and mental health.It also violates the right
of life and physical integrity and freedom from subjection to inhuman
and cruel torture, treatment, and violence. In extreme circumstances, FGM/C
may lead to death or contribute to maternal or neo natal death.
Due to these reasons, it has been argued that FGM/C violates Right to life
guaranteed by Article 3 of the UDHR, Article 6(1) of the ICCPR and Article 6 of
the UNCRC and fundamental rights and rights guaranteed by Universal Declaration
of Human Rights (UDHR) and CEDAW, International covenant for civil and Political
Rights (IPCCR) and International Covenant on Economic, Social, and Cultural
Rights (ICESCR) to which India is a party to.
Since the practice is limited to female gender, FGM/C also violates principles
of gender equality as defined under Article 1 of the Convention on the
Elimination of all forms of Discrimination against Women, 1979 (CEDAW), comes
under classification of 'violence against women', as defined by The Declaration
on Elimination of Violence, and if practiced on girls between age of 1 -15 is
considered a violation of rights of child, as defined under United Nation
Convention on the rights of children (OHCHR).
On domestic front, FGM/C violates Article 14, which guarantees right to equality
and Article 21 of Indian constitution which guarantees right to live and person
liberty including right to live with dignity and right to privacy. It also goes
against letter and spirit of National Policy for Children, 2013 (NPC), according
to which no custom, tradition, cultural or religious practice can violate or
restrict or prevent children from enjoying their rights.
Legal Status of FGM/C In India And Need For Separate Laws
Even though FGM/C violates India's stand on human rights, as reflected in
provisions in India constitution and from the country being a signatory to major
international covenants on human rights, the practice continues unabated mostly
because there are no separate laws that categorically ban the practice.
leads to immediate and livelong harms, such as severe pain, excessive bleeding
(hemorrhage), urinary problems, wound healing problems, injury to surrounding
genital, tissue shock, menstrual problems, sexual problems or death then it is
an offence under section 319 to 326 of Indian Penal Code. Section 324 and 326 of
IPC provide for punishment for voluntarily causing hurt' and 'voluntarily
causing grievous hurt
' and accordingly are most used provisions for punishment
against injury caused due to FGM/C. Former Director of the Central Bureau of
Investigation (CBI), R.K. Raghavan, has noted that though FGM is not explicitly
an offence under the IPC, on a complaint, the police are a case under Section
326 of the IPC.
Other than the cases which are covered under category of section 319 to 326 of
Indian Penal Code, FGM/C is not punishable because of absence of separate law on
the same. Main reason for absence of a separate law is denial on part of
government regarding prevalence of the practice in the country.
Interest Litigation was filed in Supreme Court by advocate Sunita Tiwari seeking
a ban on the practice in 2017.Responding to an inquiry from the top court to the
petition to end FGM, the Ministry of Women, and Child Development said: At
present there is no official data or study which supports the existence of FGM
The petition was further referred to a constitutional bench and since
then no progress has been made on the matter.
Another probable reason for reluctance on part of the state in forming law for
banning FGM/C is that it may seem as an infringement in right to freedom of
religion. This argument is faulty on two grounds. Firstly, FGM/C does not have
any basis in any religion.
International Conference on Population and
Reproductive Health in the Muslim World, held in 1998 at Al Azhar University,
Egypt recognized that harmful practices, including [FGM], were the result of
misunderstandings of Islamic provisions. Hence, at the most FGM/C is a cultural
practice and not protected under article 25.
Secondly, right to freedom of religion and freedom to manage religious
affairs are not absolute rights and are subject to public order, morality, and
health. Here morality refers to constitutional morality which requires one to
bow down to norms of the Constitution and not act in a manner which would become
violative of the rule of law. Traditions and conventions are not exceptions to
these and are required to grow to sustain the value of such a morality.
violates gender justice, which is a part of constitutional morality, and hence
can be easily declared as illegal. FGM/C also violates Right to
Equality and non-discrimination based on sex and right to life, all of which
have repeatedly been held above right to freedom of religion by Indian courts.
Our work clearly shows that FGM/C is an abhorrent practice which deeply violates
several human rights enshrined in modern law. The practice is being carried out
under garb of health benefits or religion but is a tactical move carried out to
propagate patriarchy by controlling women's sexuality.
It needs to be recognized
for what it is, and strict laws need to be put in place to protect girls and
women from it. It is high time that Indian government and courts honor the
fundamental and human rights enshrined in Indian constitution and various
international instruments and enact strict laws which will be deterrent to
propagators of FGM/C.
- International Covenant on Economic, Social, and Cultural Rights
Article,12 Universal Declaration of Human Rights, Article 25
- Universal Declaration of Human Rights, Article 3
- Universal Declaration of Human Rights, Article 5 International Covenant
on Economic, Social, and Cultural Rights, Article 7
- Article 2
- United Nation Convention on the rights of children, Article 16
- United Nation Convention on the rights of children, Article 24(3)
- Manoj Narula v. Union of India 2014 (9) SCC 1