Female

FEMALE GENITAL MUTILATION: A Case for Complete Ban

by Manya

Tradition is not easy to slay, slaying young girls is easier.”

Aerefa Johari, Jounalist based in Mumbai

Female genital mutilation (FGM) is a customary practice[1] where even without any medical reason, the female genitals are deliberately cut, changed or injured. FGM is carried out for various social, cultural, and religious reasons depending on the region across the globe. It usually happens within families and keeps carrying on from one generation to another in the mistaken belief that it shall benefit the female in some way (for instance, to preserve her virginity or to prepare her for marriage), however, there are no proven health benefits.

In this article, through a discussion on the issues involved in FGM, international response to the problem of FGM, and the practice in Indian context, the author aims to present a case for a need to have an absolute ban on the practice of FGM. 

ISSUES INVOLVED IN FEMALE GENITAL MUTILATION

It has been found out that more than 200 million females living today have been subjected to the practice of FGM in 30 countries in Africa, Asia and the Middle East where FGM is concentrated[2]. FGM is most commonly practiced in the eastern, western, and the north-eastern regions of Africa, in some countries in Asia and the Middle-East, and also among migrants from these areas to various parts of the world. This makes FGM a global concern.

There are two primary legal issues involved in the practice of FGM. These are, firstly, the issue of human rights violation. Secondly, the issue of inequality between sexes.

The practice of Female genital mutilation manifests human rights violation. The Universal Declaration of Human Rights is considered the Magna Carta for all humanity. It can be said that the procedure of FGM specifically violates Article 3 and Article 5 of the Universal Declaration of Human Rights. There are various aspects of human rights, such as, cultural, civil, political, economic, and social. These human rights are codified in several international and regional treaties. FGM in principle violates these well-established human rights norms and standards. These rights[3] include the right to life, and the right to freedom from torture or cruel, inhuman or degrading treatment or punishment as well as the right to livelihood. FGM as a process interferes with the body of the victim and that too without medical assistance; this can lead to severe health consequences for a woman, both physical and mental. There are many victims that are actually subjected to fear of life. 

FGM also violates the principles of equality and non-discrimination on the basis of sex.[4] FGM is said to be rooted in gender inequalities and also imbalance of power between men and women so much so that it inhibits women’s full and equal enjoyment of their right as humans. It makes women subjugated to men as the major reason behind this process is to preserve a girl’s purity for her marriage. On the other hand, males are not bound under any such custom; this clearly signifies bias against women.[5] The fact that females are necessarily involved in the practice with no medical reasons for the same makes it a case against them and is a complete discriminatory bias.

INTERNATIONAL RESPONSE TO THE PROBLEM OF FGM

To tackle the problem of FGM, various international[6] and regional[7] treaties took place. In addition, various consensus documents[8] also condemned and banned the practice of FGM. Moreover, there have been various International Responses to tackle the problem. There were several Interagency Statements that were issued affirmatively condemning and banning the process of FGM. The “Committee on the Elimination of All Forms of Discrimination against Women issued its General Recommendation on Female Circumcision[9] asked the states to take effective and appropriate measures in order to eradicate the practice of FGM and also requested them to make available the information about measures being taken to eliminate FGM in their reports.[10]

Many countries have banned the practice of Female Genital Mutilation under their domestic laws. This includes 48 countries[11] out of which 27 countries are African. In 2016, Australia sentenced three Dawoodi Bohras to 15 months in jail under the country’s FGM law. Furthermore, Sudan[12] has passed a new law on 1st May 2020, making FGM a criminal offense with a jail sentence for violators of up to three years.

FGM being a serious harmful practice also needs immediate action against it at times. In this regard European countries have proposed to create an All Border Force[13] which shall be readily available to rescue any such case of FGM. It is a clear policy to have no tolerance to the practice of FGM. It is to be noted that such measures are not taken by all the countries in the world. There are several roadblocks to complete ban of FGM worldwide. In 2017, US officials arrested two doctors in Detroit for allegedly cutting the private parts of six girls. However, a federal judge in Michigan in this case ruled that the Federal ban on FGM is unconstitutional.[14]

INDIA AND FEMALE GENITAL MUTILATION

India has till date has not undertaken any measures to tackle the problem of FGM. There is no law to ban this practice. It is claimed[15] that the practice is carried out in secret conditions in a few states, those being Maharashtra, Kerala, Gujarat, Madhya Pradesh and Tamil Nadu. It is specifically carried out in the Dawoodi Bohra sect of Shia Muslims[16] in India. Bhindi area in Mumbai is a hub of this community and it is noted[17] that there are various cases that take place in this area of the Female Genital Mutilation. However, these cases are all unofficial and nothing is reported. The official “reason for the practice of FGM to be unreported is that FGM is not practiced in India. However, several instances of this practice have been found to have happened. A study[18] carried out by an NGO named Sahiyo conducted a survey among Dahoodi Bohra community. The respondents were all females. According to the survey, 75% of 400 respondents[19] have been cut. Crime Bureau of India failed[20] to capture this data as the practice is not a crime under any law and so there is no violation under which it can be said to have committed crime. This clearly leads to non-reporting and non-counting of the same as a crime. Laws are made on the basis of data available. Data does not present FGM in India as prevalent and hence, nothing concrete to back the argument for legally banning it.

A PIL has been filed in the Supreme Court to seek a ban on the practice of FGM in India.[21] The Honourable Supreme Court of India is dealing this matter on the touchstone of the constitutional principles. The matter is sub judice. However if the Supreme Court succeeds in putting a ban on FGM in India, then India will also join the army of countries that are against FGM and fighting it legally.

CONCLUSION & SUGGESTIONS

It is established that the practice of FGM is a horrific violation of human rights. Gender reforms are slow and hard to actualize. The fight is even more when they involve ancient, archaic, and cultural practices of a selective and closed community like the Dawoodi Bohras. A social change is necessary in this regard. Where international organizations have condemned the practice and a lot of countries have banned it under their domestic laws, the need of the hour is a complete ban on the same.

As said, many countries have banned FGM. Internationally, this has been condemned and banned. In Australia, conviction has taken place for the same and Sudan has come up with a new law to ban the practice. However, countries like India haven’t even recognized the presence of FGM in their country because of which it has not been banned. This leads to leak in the system, whereby communities that are present in countries with ban can go to countries like India without ban. FGM being a one-time process, can keep on undergoing in this manner, given all the laws and restrictions present elsewhere. Thus, we need to have increased and cumulative coordination and cooperation at international level. Multi level approach to deal with the problem is required. Apart from this, awareness and education about the same is necessary. Campaigns like #WeSpeakOut are the need of the hour where the victims spoke about the practice and the traumatic effect that the practice has on the victims. Also, the practice happens in a closed community and so, creating awareness about the same will help in eradicating it as this will lead to social condemnation by other communities.

Views are personal.

Image credits: Scroll.in

ABOUT THE AUTHOR

Manya has completed her LLM in Human Rights from National Law School of India University, Bangalore in 2019 and is currently pursuing a PhD from the University of Delhi.

REFERENCES


[1] WHO Guidelines On The Management Of Health Complications From Female Genital Mutilation, 2016.

[2] Female Genital Mutilation/Cutting: A Global Concern UNICEF, New York, 2016.

[3] International Bill of Human Rights.

[4] Riane Eisler, “Human Rights: Toward an Integrated Theory for Action,” Human Rights Quarterly 9 (1987): 297.

[5] Sandra Coliver, “United Nations Machineries on Women’s Rights: How Might They Better Help Women Whose Rights Are Being Violated?” in Ellen L. Lutz, Hurst Hannum, and Kathryn J. Burke, eds., New Directions in Human Rights (Philadelphia: Univ. of Penn. Press, 1989

[6] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Covenant on Civil and Political Rights, Covenant on Economic, Social and Cultural Rights, Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), Convention on the Rights of the Child, Convention relating to the Status of Refugees and its Protocol relating to the Status of Refugees, et al.

[7] African Charter on Human and Peoples’ Rights (the Banjul Charter) and its Protocol on the Rights of Women in Africa, African Charter on the Rights and Welfare of the Child, European Convention for the Protection of Human Rights and Fundamental Freedoms, etc.

[8] Beijing Declaration and Platform for Action of the Fourth World Conference on Women, General Assembly Declaration on the Elimination of Violence against Women, Programme of Action of the International Conference on Population and Development (ICPD), UNESCO Universal Declaration on Cultural Diversity, United Nations Economic and Social Council (ECOSOC), Commission on the Status of Women, and Resolution on Ending Female Genital Mutilation.

[9] General Recommendation No 14, 9th session, Female Circumcision, 1990.

[10] “Committee on the Elimination of All Forms of Discrimination against Women, 1990”

[11] Eliminating female genital mutilation: an interagency statement – OHCHR, UNAIDS, UNDP, UNECA, UNESCO, UNFPA, UNHCR, UNICEF, UNIFEM, WHO

[12] https://www.bbc.com/news/world-africa-52502489

[13] Supra Note 11.

[14] https://www.nytimes.com/2018/11/21/health/fgm-female-genital-mutilation-law.html

[15] https://amnesty.org.in/female-genital-mutilation-in-india/

[16] https://indianexpress.com/article/explained/explained-what-is-female-genital-mutilation-6254573/

[17] https://www.theguardian.com/global-development/2018/mar/06/study-reveals-fgm-india-female-genital-mutilation

[18] http://wespeakout.org/site/assets/files/1439/fgmc_study_results_jan_2018.pdf

[19] Ibid.

[20] https://thewire.in/women/genital-mutilation-plagues-thousands-of-bohra-women-in-india

[21] Sunita Tiwari v. Union of India (W.P. (C) No.286/2017)

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