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 and women.

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[1].It also violates the right of life and physical integrity and freedom[2] from subjection to inhuman and cruel torture, treatment, and violence[3]. 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[4], 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)[5][6].

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.

If FGM/C 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.

A Public 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 in India.

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[7].

FGM/C 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.

Conclusion
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.

End-Notes:

1. International Covenant on Economic, Social, and Cultural Rights Article,12 Universal Declaration of Human Rights, Article 25
2. Universal Declaration of Human Rights, Article 3
3. Universal Declaration of Human Rights, Article 5 International Covenant on Economic, Social, and Cultural Rights, Article 7
4. Article 2
5. United Nation Convention on the rights of children, Article 16
6. United Nation Convention on the rights of children, Article 24(3)
7. Manoj Narula v. Union of India 2014 (9) SCC 1