FGM before the Indian Supreme Court

By: Koen Van den Brande

Age: 55
Country: India

It was to be expected…

The Indian Supreme Court has been asked to look at the practice of ‘khatna’ – commonly known as FGM (Female Genital Mutilation) as a result of a Public Interest Litigation filed by Sunita Tiwari, a Delhi based advocate.

There was a time, not so long ago, when the Suleimani community was known for people who showed great wisdom and leadership. For example when the educator, jurist and author Asaf Ali Asghar Fyzee  advocated “the need to incorporate modern reforms in Islamic law without compromising on the ‘essential spirit of Islam’.”

FGM has been in the news of late in India as well as the US, the UK and Australia, as a result of legal action taken against practitioners of ‘khatna’ and discussions on how to make existing legislation more effective.

In the Mumbai-based Suleimani community, which I belong to, we have also been having some discussions on how to address this practice, which remains prevalent albeit more and more in what I would call an ‘intellectualised’ form. After all, we are not talking here about primitive tribal communities as in some countries in Africa, where in 10% of the cases, we can talk about ‘mutilation’ in the fullest, most horrific, sense.

The community is well accustomed with the Islamic principle that the law of the land is to be respected. In the Prophet’s (PBUH) words ’Love of one’s country is a part of one’s faith” So at one level, the introduction of a new law would be the easiest way to address the issue… Or would it?

In the UK such a law has been on the statute books for many years without ever leading to a single case in court and yet it is well-known that the practice continues there for thousands of girls.

Or take the case of Egypt, where despite a law which declares the practice a crime, 98% of women continue to be cut. As an Egyptian government official comments in the highly informative as well as emotional documentary The Cutting Tradition, soberly narrated by Meryl Streep, you cannot put the entire population of a country in jail…

A study in Senegal concluded that the introduction of specific legislation can be helpful, where it complements other efforts to educate and gain support for abandoning such a practice. However the study also observed that such legislation without the necessary work on the ground can build resistance if it is primarily seen as interference in a religious practice.

In India there is no lack of existing legislation under which FGM would be seen as a criminal offence, as Maneka Gandhi, Minister for Women and Child Development recently spelled out in no uncertain terms, in response to a referral by the Supreme Court.

In addition, supra-national bodies like the United Nations and the World Health Organisation take a clear stand on the subject. India is a signatory to the UN’s Universal Declaration of Human Rights, but it was not even on the radar of the UN until a group of women submitted a petition to recognise India as one of the countries where FGM is still practiced…

In India there is the additional problem that the Muslim minority is always likely to find a new law addressing ‘khatna’, considered by some a ‘religious practice’, an imposition by a Hindu-dominated government – even if the law makes perfect sense. Such resentment could result in the practice being driven underground and once again reverting to the earlier back-alley horrors, which so many women have attested to.

In fact, following the successful efforts of Sahiyo and others, a new site has recently been set up protesting ‘interference’, as expected. It would of course be much better if the two sides agreed to sit together to work out a sensible way forward.

Sunita Tiwari is quite clear. She wants ‘khatna’ to be made an offence which is ‘cognizable, non-compoundable and non-bailable and offenders to get maximum punishment and penalty’.  

In reality, and for many Suleimani families today, ‘khatna’ has become what a father of two daughters called ‘a minor procedure’, when I asked him about it. That is to say that the ‘intellectualised’ form of the practice already insists on a medical procedure which simply removes a small bit of skin — the clitoral hood. Such a procedure may be justified and carried out legitimately to assist a grown-up woman. Which still leaves the question how one can justify making that decision for a child.

As a result of my initial conversations and a bit of research, I wrote an article a while back in which I advocated a possible approach which would respect the view of those who consider this a spiritual matter and the rest of us. I believe this approach would also address the urgent need for reform and recognise that a large majority of the world has deemed this practice, for some time already, a crime against a girl child.

What I proposed was that the community leaders could simply teach and mandate that a woman had to be of the age of consent to allow what should then be a largely symbolic ‘cut’ and that it should always be performed under medical supervision.

At least one of the Bohra community’s spiritual leaders seems to have taken a similar view. He was reported in the media recently as saying ‘FGM should be by choice for adults’. Unfortunately this statement has become somewhat ‘politicised’ due to the succession struggle which is currently before the court in Mumbai.

This proposed approach would also address another ‘law’. It could help resolve the current dilemma for any medical practitioner who would prefer not to break his or her Hippocratic oath. This oath – ‘do no harm’ – insists that a doctor can only perform a procedure on a patient which is actually in that patient’s interest. It must be difficult for any doctor to argue that ‘khatna’ is really in the interest of a young girl from a medical perspective in the face of clear warnings from the WHO about associated health risks.

The initial response from the Suleimani religious leadership was encouraging. I learned that it is a long-standing principle in our community, to first understand why something should be done and then – only if there is a good reason – to commit to doing it.

I was also told that there is no compulsion for this practice.

I had already found out that many women were unsure of why this practice is considered ‘required’ and trusted that the leadership knew and would clarify.

Our spiritual leader felt, when we met, that a bit of research was required to get to the bottom of where this practice originated, why it was considered necessary at that time and why it is still considered relevant today.

In due course it became clear that the source of the common belief that this is required, is a book known as the Daim al-Islam.

Sadly, AA Fyzee is no longer with us, so we cannot ask him for his view on ‘khatna’ as an influential author, jurist and devout Muslim. But my guess is that if we could, he might have suggested that there is a way to align with modern international norms and to protect the rights of a child, without abandoning the spiritual ‘cleanliness’ angle.

The time has come for the Suleimani leadership to lead…

Make ‘khatna’ haram, prior to the age of consent.

I trust the Supreme Court will.

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