Female Genital Mutilation: Is It Really an Essential Religious Practice?
This paper continues from where we left the 1st part. This part aims to look at whether the counter claim of Female Genital Mutilation being an essential part of religion and culture holds substance and we also look at the recommendations for laws to prevent such a practice in India.
Counterclaim- FGM is rooted in religion and culture
Proponents of Female Genital Mutilation continue to support this barbaric practice stating that it is something which is deeply rooted in tradition and their culture. It is a religious practice and the people practicing it have a right to exercise their right to culture and religion.
Contrary to this perception, it is an established fact that the aforementioned practice cannot be particularly called as a religious practice. United Nations Population Fund (UNFPA) has stated that ‘No religion promotes or condones FGM. Despite its perceived connection to Islam, FGM is not restricted to Islam only. Non-Islamic groups including some Christians, Ethiopian Jews, and followers of certain traditional African religions also follow FGM. However, it is not a religious practice and many religious leaders have denounced it.’ ‘Moreover, no religious scripts prescribe the practice and religious leaders take varying positions with regard to it. Some promote it, some consider it irrelevant to religion, and others contribute to its elimination.’ In such a scenario it can be seen to be quite affirming that FGM is not a religious practice.
This brings us to the next claim that it is a cultural practice, a practice which is so deeply rooted in tradition and ancient that no one should be allowed to question its existence and continuance. As mentioned above, one cannot refute the fact that it is an age-old practice. It has been adopted by different societies and people across continents and ages and continue to do so but is mere cultural significance an ample argument to not put an end to a practice?
‘Culture and tradition provide a framework for human well-being, and cultural arguments cannot be used to condone violence against people, male or female. Moreover, culture is not static, but constantly changing and adapting. Behavior can change when people understand the hazards of certain practices, when they realize that it is possible to give up harmful practices without giving up meaningful aspects of their culture.’ Therefore, it is imperative that we revisit the practice and rationally question it.
The practice of FGM is a controversial issue which mandates the balancing of Right to culture (argued by people who ardently support its existence) which is also a category of human right and other human rights concerned with leading a life free from discrimination and possessing sexual freedom etc. There are innumerable arguments that can be raised against FGM and would weaken the side promoting the same on account of its mere cultural importance.
First, as aforementioned, it has short term and long-term health implications. This is the reason that The World Medical Association issued a statement condemning it.
Second, the brutal and inhumane nature of the procedure which equates it to ‘a form of torture’ in accordance with the definition of torture in International Law as per the 1975 UN Declaration Against Torture. (Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA res. 3452 (XXX), Annex, 9 Dec 1975)
Third, one might argue that the general populace cannot make a decision for every individual and their right to practice their culture. It is very much a possibility that someone values that above their life. In a way, a parallel can be drawn with sati which was a religious as well as cultural practice. In such scenarios, it becomes incumbent that the person in question has agency to make an active choice whereas, description of most of the procedures does not paint that picture. Despite considering the hazards, women usually conform to circumcision as it is at times, their only choice for cultural acceptance. Even if women are aware of the hazards, they cannot deny the paramount importance of circumcision for cultural acceptance. We can see the example of Masai tribal custom, where, uncircumcised women cannot get married or be allowed to have children. The lack of circumcision leads to ridicule from peers and the woman is likely to remain single. In case she’s able to get married then she faces a certain divorce and an uncertain economic future. (most women are not well educated and not allowed to work).’ Therefore, even in the very few polls that have been conducted to ask women about their take on the issue, it has been seen that ‘90% of them are not opposed to the idea.’ Many women state that even if they had a choice to not make their daughters undergo the procedure, they would not avail that option. That is why it becomes obligatory to ban such a practice as women make such remarks based on the social pressure they are subject to and the circumstances they are in.
Fourth, it is extremely gender discriminatory and a means to enforce patriarchy and appease the sexual fantasies and preferences of men. It also violates child rights. ‘The Convention on the Rights of the Child protects the right to gender equality, and article 24.3 of the convention explicitly requires states to take all effective and appropriate measures to abolish traditional practices prejudicial to the health of children’. Therefore, this practice must come to an end. ‘One of the guiding principles of the Convention on the Rights of the Child is the primary consideration of “the best interest of the child.” Some parents who decide to subject their daughters to FGM/C believe that the benefits outweigh the risks. However, this perception does not justify a permanent and life-changing practice that constitutes a violation of girls’ fundamental human rights.’
While it can be said to an extent that FGM is a cultural practice, its positives get highly outnumbered by its ill- effect and hence this menace needs to be controlled.
Recommendations in the context of India
The law regarding prevention should be made in such a way that any person who has information regarding a proposed FGM is able to provide the same to a recognized agency, like an accredited NGO and they should have the power to bring a civil action for injunction restraining the commission of FGM. Strict penalties should be there for people practicing FGM and the only exception should exist in case the process is absolutely necessary. The penalty should also extend to the act of abetment, incitement and propagation of the practice. Amendments can also be made in the Indian Medical Council Regulation, 2002 stating that carrying out FGM shall make them liable for disciplinary proceedings and potential bans.
Through the claim and reasoning mentioned for the counterclaim, we argue that such an inhumane and barbaric practice needs to be put to an end. Despite having cultural significance, a practice that diminishes the agency of women, is torturous and violates the very basic human rights of women, hazardous to their health, is discriminatory in nature and amounts to violation of child rights should be dealt with utmost sensitivity and urgency. A defense put forth is that women who undergo this are given the freedom to choose (in certain regions and types of FGM), but given the environment that such practices are undertaken, the idea of consent holds no value as lack of awareness and the economic dependence of women on men leave them with no agency of their own. It is believed that FGM is the removal of masculine parts from female genitals which makes her more adept to her role which eventually propagates the idea that a good husband requires the practice of FGM. Something which is based on such a conservative, uncivilized, brutish and primitive ideology in the 21st century definitely should awaken our conscience and should be reason enough to propel us to act.
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“Eradicating Female Genital Mutilation/Cutting: Human Rights-Based Approaches of Legislation, Education, and Community Empowerment.” Health and Human Rights Journal, 14 Aug. 2018
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.