India is divisively governed by its personal law. There are indeed very few boundaries the gospel truth of religious customs will not broach. And for as many ardent followers it fosters, it makes a proportionate number of sharp tongued critics. The Hon’ble Supreme Court of India is currently hearing the petition filed by Advocate Sunita Tiwari, praying for a blanket ban on the practice of female circumcision or khatna and further rendering it a non-compoundable, cognizable, non-bailable offence with a stricter punishment under the law. The litigation has incited significant ire between different sections of the society; primarily, the litigation implicates the Dawoodi Bohra community under Islam which routinely has their girls circumcised at a very young age.
What is Female Genital Mutilation?
Female Genital Mutilation (FGM), as defined by the World Health Organization (WHO) comprises all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons. The WHO recognizes all forms of FGM as a violation of women’s rights stemming from an intrinsic inequality between men and women.
The WHO outlined four types of FGM, of which the Dawoodi Bohra community in India practice Type 1. Type 1 FGM, or clitoridectomy, is the partial or total removal of the clitoris. Further there in consensus that these practices (unlike male circumcision) have no health benefits for women and in fact are actively harmful. They create vaginal and urinary complications, lead to infertility and haemorrhaging and are particularly susceptible to cysts, infections, and swelling.
By Who and Against Whom?
Advocate Sunita Tiwari is New Delhi based women’s rights activist and lawyer who has filed a public interest litigation under Article 32 of the Constitution of India against the Union of India, which seeks to render the practice of female circumcision illegal throughout India. The petition names the Ministries of Health & Family Welfare, Social Justice & Empowerment, and Woman & Child Development as well as the States of Maharashtra, Gujarat, Rajasthan and Delhi as the concerned Respondents.
What does the petition say?
The petition has been filed in light of the growing instances of Female Genital Mutilation (FGM) being reported throughout the country. The petition highlights the following points of note in calling for a blanket ban on FGM:
1. The petition finds that the practice of FGM is contrary to the provisions of the Universal Declaration of Human Rights and the United Nations Convention on Rights of the Child, both of which India is a signatory to. The practice further violates the right to life and personal liberty under Article 21 of the Constitution of India, the right to equality under Article 14, and is discriminatory towards women against Article 15 of the Constitution. Further the practice has been characterised as violence towards women.
2. The petition notes that although FGM is recognized as an offence under eight different section of the Indian Penal Code, 1860, the enforcement machinery in the country has been lax in taking action against those propagating the practice. Thus, there is a distinct emphasis on the necessity of a special law banning the practice entirely.
3. The petition notes that the Dawoodi Bohra community is the only Muslim community to mandate the practice of Type 1 FGMs in India. Their faith in the practice comes from centuries of custom based on the archaic notion that the khatna will kill the sexual urge for anyone but the woman’s husband.
4. The petition also traces the chronological order in which the practice of FGM has progressed as a women’s rights and health concern issue. The petition follows online petitions launched by activists in support of a khatna ban and records the growing pace of media attention devoted to the issue.
5. The petition also addresses the sanction of the religious leader of the Dawoodi Bohras, Syedna Mufaddal Saifuddin in supporting the practice of FGM. Holding circumcision as a religious obligation for male and female Bohras, the Syedna went on to assert that the practice must be followed in countries which did not have strict anti-FGM laws in place. In this regard, the petition calls for a complete ban on the practice.
What are the observations of the Court until now?
In the course of the proceedings the three-judge Supreme Court bench hearing the matter has noted that women are not chattel and their marital responsibilities must pass the test of constitutional morality and privacy. The Court observed that individuals had complete autonomy over their bodies in this regard and that the bodily integrity of women could not be harmed. The matter has now been referred to a five judge bench of the Supreme Court.
Priyanshi Vakharia is a Research Associate (Legal Reform) at One Future Collective.
Featured image: Charles Deluvio
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