By Richa Bhargava
As a first year law student in Sonipat, India, I was exposed to the practice of female genital cutting (FGC) as a part of my sociology course. We discussed the practice briefly. The article that formed a majority of our discussion only spoke of the existence of FGC in African nations and made no mention of India or other countries around the world where women are subjected to the practice. I felt shocked and truly disturbed when I first learned about FGC, and as a result, my response was to read about it on my own accord. A little browsing led me to the discovery of the fact that FGC prevails in the Indian subcontinent as well. I read about the Bohra community, the absence of legislation and the organisations and people advocating to end this harmful and unnecessary practice.
Laws do not just force and punish. They deter, discourage and dissuade, too. Enacting and legislating laws raises awareness and empowers communities to change not only what people do, but what they think is right. It is vital for laws to continuously evolve with the changing norms and ideals of a society.
FGC is a prevalent practice among the Bohra community in India. A study indicated that almost 75% of the women of this community who were interviewed have been cut. At present, many citizens are unaware of its presence in India. Lifting the veil off this practice is an essential step toward ensuring that a conversation regarding its harmful effects on young girls begins. Maneka Gandhi, a union minister, stated that there is a lack of proof regarding the existence of FGC in India, and there is no data to support its presence. The Ministry of Women and Child Development needs to conduct surveys and take appropriate measures to find all data that would make the legislators see the need for the enactment of a law against FGC. To avoid addressing the issue is to completely ignore its existence. A similar approach has been taken up by the Indian government over the years. Multiple accounts of women who have undergone FGC are out in the public domain and provide substantial evidence to prove the presence of khatna, as it is known in the Bohra community. Yet, no legislation or statute has been formulated or enacted in India which would help survivors find an easy legal recourse.
There is an imperative need to move beyond the pretext of not having enough data to prove FGC occurs in India. Hundreds of survivors have spoken up against this practice and have openly shared their painful accounts. Many survivors have shared that since khatna is secretive, making it unlawful could have a serious impact in curtailing it. According to Section 320 and Section 322 of the Indian Penal Code, causing grievous hurt to another person is a criminal offence, and FGC would automatically fall within its purview. Despite this, there has been no effort on the part of the legislators to specifically provide remedy to survivors. The Indian Constitution guarantees the fundamental right to life and liberty to all its citizens. Legal statutes like the Indian Penal Code and the Prevention of Children from Sexual Offences (POCSO) Act that penalise crimes should mention terms such as female genital mutilation/cutting, labia minora, etc., to provide appropriate legal recourse to women affected by this practice.
India claims to be a welfare state that ensures the well-being of all its citizens. Refusing to ensure the safety of young girls who might be subjected to FGC is a contradictory act.
Various jurists and legislators face the problem of deciding whether one fundamental right should be given more importance than the other. The proposed ban on khatna raises a similar
obstacle. The Indian Constitution confers upon its citizens the right to equality, as well as the right to practice and profess any religion. There exists a constant clash between articles 14 and 15 defining right to equality and articles 25 and 26 defining religious rights. In particular, the rights guaranteed to people under article 26 pose a unique challenge before the courts. In recent years, courts have come to realise that the right to equality should be awarded more weight. Discrimination solely on the basis of one’s gender is highly dishonourable and unjust. In order to move forward, a distinction between social malpractices and actual religious practices needs to be made. Social norms disguised as religious practices infringing upon the rights of women need to be done away with. The right and autonomy over one’s body is crucial to live a respectful life.
People frequently wonder whether legislation can bring about change. Fear that criminalising FGC might result in a deeper continuation of it is felt by many and is a valid concern. However, often the notion that a new law can elevate conversation on FGC and create a discourse for all to engage in on the topic is overlooked. The existence and continuity of khatna cannot just be attributed to the fault of a community. With democratic ideals such as equality and freedom, the state cannot shy away from establishing and constituting laws that are in symmetry with these ideals.