Female Genital Mutilation: A Menance That Needs to End
Abstract: The focus of this paper is on Female Genital Mutilation. The paper tries to prove that Female Genital Mutilation is harmful for the reproductive health of women. It is violative of their human rights and is not an essential religious practice. The paper identifies the reasons in favor of and against Female Genital Mutilation and to support the claim we look at certain judgements and legal documents to identify that there have been various cries against this practice. The 2nd half of the paper partially accepts the Counterclaim that Female Genital Mutilation is rooted in religion and culture but still has a staunch opposition towards it. This is further followed by recommendations in context of India, regarding the heinous practice. The paper ends on the note that primitive ideologies cannot be seen as a basis for regressive age-old practices, especially in the 21st century.
Keywords: Human Rights, Gendered Violence, Women’s Health, Female Genital Mutilation
Female Genital Mutilation (FGM) is a series of procedures that exist in Asia, Latin America and the Middle East that affect, alter and cause injury to the genital organs of females without any medical reason to perform the same. It is performed through four ways – firstly, there is clitoridectomy wherein the clitoris is removed fully or partially or in certain cases the skin of the clitoris is removed, secondly, excision, where there is full or partial removal of the labia minora or labia majora, thirdly, infibulation, which is the narrowing of the opening of the vagina by stitching excess skin from the labia there, and fourthly, all other procedures that include piercing, scraping and cauterizing of the genital area. The immediate consequence of such procedure includes severe pain, tissue swelling, shock, and even death. In the long term the complications include sexual problems, menstrual problems, childbirth complications, and scar tissue and keloid. Psychologically, it has been proven to cause anxiety, depressions, post-traumatic stress disorder etc.’
It has no advantages or added health benefits for females and rather causes hazards such as cysts, bleeding, urinary infection, fertility issues as well as negative impact on the offspring’s health.
Numerous reasons have been stated as to why FGM is practiced. First, that FGM is a social norm and is a part of tradition and so engrained that it is practiced unquestionably. It is seen as an inherent part to safeguard the sexual sanctity of a girl and to prepare her for marriage and adulthood. Second, it is motivated in the backdrop of safeguarding premarital virginity and marital infidelity. It is rooted in the belief that FGM reduces and suppresses sexual desires and thus aids her in restraining from extramarital affairs. Moreover, the fear of the pain due to opening the narrowed vaginal opening and the fear that this will be found out, is expected to further discourage extramarital sexual intercourse among women. It also has a cultural bias and a preconceived notion that girls are pure when unclean and masculine parts are removed from their body. Religious scripts per se do not sanction such a practice. In societies where it is practiced, it is considered a cultural tradition and promoted even by community leaders.
FGM is globally seen as a human rights violation of women and girls, portraying the deep-rooted gender inequality that tends to discriminate against women by trying to control their sexuality. It further is a violation of child rights as it is carried out on infants and adolescents. It also takes away the right to health, dignity, security and is considered as a form of torture and in humane treatment that also curtails the right to life. ‘According to data tabulated by WHO, three million girls are at risk for FGM annually and 200 million girls and women alive today have been cut in 30 countries of Africa, Middle East and Asia.’ Therefore, it is now seen as a global concern that needs to be curtailed.
An attempt to support it has been made wherein the protestors argue that the procedure would be performed cautiously and with medical supervision i.e. traditional circumscribed will not be used. Yet, ‘the World Health Organization coupled with the United Nations Population Fund (UNFPA) and United Nations Children Fund (UNICEF) continue to condemn FGM in its entirety.’
The claim that we are supporting in this paper is that Female Genital Mutilation is harmful for the reproductive health of women and, hence, violates their human right. A little on the factual matrix has been discussed above. We will be discussing how this established fact has been supported and dealt with in the domain of international law and domestic law (India) which in a way reinforces this claim and calls for an urgent need to put an end to this practice.
‘Forced FGM’ has been outright prohibited. This can be seen In Opinion of Advocate General Bot, Bundesreublik Deutschland v. Y, wherein the Court had specifically stated that when women are at a risk of being subjected to forced genital mutilation, the State shall protect them from such a practice else it results in an abuse of international protection.
A test has been laid out for FGM in another judgment of Collins and Akaziebe v. Sweden (2007). It was stated that for invoking the article 3 of the European Convention on Human Rights, the applicants had to substantiate that “they would face a real and concrete risk of being subjected to female genital mutilation upon their return to their home nation.” Izevbekhai and Others v. Ireland (2011), the court substantiated the previous opinion by rejecting the provisions under Articles 6, 13 and 14 of the European Convention on Human Rights (ECHR), therefore, the parameter is to establish a real and concrete risk of ECHR. What constitutes real and concrete risk was further substantiated in Ahmed & Others v. UK.
An upcoming trend can be viewed in jurisprudence where this practice has been used to claim asylum in other countries. Though sticking to the test established, different regions’ courts require a different standard to be met for claiming the same and Omeredo vs. Austria, wherein Nigerian women had claimed asylum for the fear of genital mutilation and tried to invoke Article 3 of the European Convention on Human Rights (ECHR). On the contrary, France has had a different approach which can be seen in the case of Miss K and Miss D v. France (2009), where an underage applicant and her mother sought asylum in France on the basis of the claim that if they go back to their home country of Mali, her mother would not have been able to protect her from FGM. The court recognized the same by viewing how the authorities in her country of origin functioned and accepted her claim. Her mother was also granted asylum on the basis that the child could not be separated from the mother.
Though, one can have a positive take on the same by stating that at least this practice is being condemned, a dialogue is being generated around it and is considered reason enough to seek asylum. It seems that more often than not the test mandates an unrealistically high requirement to be fulfilled. Universally people understand the sensitivity and urgency attached to the issue and judges tend to provide relief, but the amount of reasonable standard is still substantially high.
Due to its harmful effects on health, several conventions contain provisions against Female Genital Mutilation.
The Convention on the Elimination of Discrimination Against Women (CEDAW) has defined the ingredients for constituting discrimination against women. Articles on discrimination and on the health of women, respectively 1 and 12 are relevant while viewing female genital mutilation. The CEDAW General Recommendation No.14: Female Circumcision, provides for strategies for eradication of FGM/C.
Convention on the Rights of the Child (1989) talks about FGM as an activity often carried out on underage girls. (CRC), to stop the same, provides for the right to be free from discrimination in its Article 2. Article 19 provides for the rights for protection from physical mental violence and the standard of that article is increased to the extent for it to cover Female Genital Mutilation. The article 24 provides for the right to enjoy the highest attainable standard of health and finally the freedom from torture or other cruel, inhuman or degrading punishments has been provided in article 37.
In the Istanbul Convention (2011), a convention against domestic violence and violence against women has Article 38 specifically dealing with Female Genital Mutilation.
In the Directive 2011/95 EU of the European Parliament an of the Council on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, FGM is mentioned in Article 30 in the context of introducing a common concept of persecution ground with respect to “membership of a particular social group”.
Addressing FGM in India
FGM, generally carried out by the Bohra community, falls into Type I and Type IV category of Female Genital Mutilation as identified by WHO/UNFPA/UNICEF. Type 1: Also known as clitoridectomy, consists of partial or total removal of the clitoris and its prepuce. Type 4: includes other harmful procedures to the female genitals, including pricking, piercing, and cutting, scraping or burning the area. Syedna Muffadal Saifuddin in a sermon of his in 2016 called khafz (female genital mutilation) to be a part of essential religious practice for the Bohra community and stated the same was said by Prophet Mohammed.It should be noted that female genital mutilation is usually carried out with special knives, scissors, scalpels etc. Anaesthetics and antiseptics are not generally used and it is carried out by elderly people in the community, usually midwives and birth attendants.
Laws combating FGM in India
The existing legal framework in India is that violence against women is usually dealt with by the IPC. Sections 319 to 326 address varying degrees of hurt and grievous hurt. Apart from that, prosecution for FGM can arise because the WHO states that the immediate complication of FGM can include excessive genital bleeding, genital swelling, vaginal problems, menstrual problems etc. As sections 324 and 326 provide for penalties of imprisonment and fines for “voluntarily causing hurt” and “voluntarily causing grievous hurt”, the same can be said to be covered in that ambit. R.K Raghavan, former director of the Central Bureau of Investigation (CBI), had said that even though FGM is not explicitly an offence under the IPC, there is still an obligation on the police to register the case under section 326 of the IPC. Section 3 of The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) defines penetrative sexual assault by any person on a child as “insertion of a sharp object in the vagina of the girl”. Reading the same with Explanation 1 of the IPC that states “vagina includes labia majora”, we can draw a conclusion that it is covered under the Indian law. The Goa Children’s Act in its Section 2 (y)(i) has defined “Sexual Assault” as “different types of intercourse; vaginal or oral or anal, use of objects with children”, and “deliberately causing injury to the sexual organs of children…” The National Policy for Children, 2013 (NPC) provides for an obligation on the state to take affirmative measures for protecting, promoting and safeguarding the rights of all children to live healthily and with dignity. The Ministry of Women and Child Development had launched the Integrated Child Protection Scheme (ICPS10) in 2009, for creating and establishing an efficient protective system for vulnerable children. It provides an interface which provides a range of services to cater to the needs of the children.
Advocate General Bot, Bundesreublik Deutschland v. Y ( C-71/11y)
Collins and Akaziebe v. Sweden (2007) (23944/05)
Izevbekhai and Others v. Ireland (2011) 43408/08
Ameh & Others v. UK 4539/11
Omeredo vs. Austria (8969/10)
Miss K and Miss D v. France (2009) (CNDA, SR 12 mars 2009, Mile K, n 639908 et Mme D epouse K, n” 638891
Jaising I, 'Female Genital Mutilation: Guide to Eliminating The FGM Practice In India' Lawyers Collective
This piece has been authored by Abhimanyu Agarwal.
Abhimanyu Agarwal is currently in his 5th year of BA.LLB. He is from Meerut and did his 12th from K.L. International School. When he is not writing these papers, he is busy watching unique cinematic movies or writing fiction. His favorite directors are Gaspar Noe, Quentin Tarantino, Sion Sono and Vishal Bharadwaj. When it comes to law, he is interested in Intellectual Property Law and Competition Law.