Female Genital Mutilation: Human Rights Violation Under The Garb Of Culture

Human Rights
September 18, 2020

Shrishti

Shrishti is a Managing Editor at The Law Culture. She is a final year law student at Jindal Global Law School.Her areas of interest are Intellectual Property Rights, Family law, Arbitration, and Public International Law.

Vasundhara Gautam

Vasundhara is an Associate Editor at The Law Culture. She is a final year law student at O.P Jindal Global University. Her areas of interest are: Intellectual Property Rights, Anti-trust Law and Human Rights.

Introduction

Female Genital Mutilation (FGM) is a series of procedures concentrated in Asia and the Middle East that affect, alter and cause injury to the genital organs of females without any medical reason. It is performed through four ways, ‘Type 1 is clitoridectomy wherein the clitoris is removed fully or partially or the skin of the clitoris is removed, Type 2 is excision wherein full or partial removal of the labia minora or labia majora takes place, Type 3 is infibulation which is the narrowing of the opening of the vagina by stitching excess skin from the labia and Type 4 is all other procedures that include piercing, scraping and cauterizing. It is noteworthy that the procedure is performed using special knives, scissors, scalpels, etc. without administering any anaesthetic or antiseptics by elderly people in the community, usually midwives and by birth attendants.

The immediate consequence of such procedure includes severe pain, tissue swelling, shock and even death and the long-term complications include sexual, menstrual & vaginal problems and childbirth complications to name a few. Psychologically, it has been proven to cause anxiety, depressions, post-traumatic stress disorder, etc.’

Numerous reasons have been stated as to why FGM is practiced. First, that FGM is a social norm and part of the tradition and hence 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 believed that this would reduce and suppress sexual desires and thus aid her in restraining from extramarital affairs. Moreover, the fear of the pain caused by opening the narrowed vaginal opening and that it will be found out is expected to further discourage her. Third, it is also linked with the cultural ideas of feminists and modesty that girls are pure when unclean and masculine like parts are removed from their body. Even though religious scripts per se don’t sanction such a practice, it is believed to have acquired religious support becoming a part of the cultural tradition and even promoted by community leaders.

FGM is globally seen as a human rights violation of women and girls and is seen portraying the deep sown gender inequality that tends to discriminate against women by trying to control their sexuality. It further is a violation of child rights as 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 inhumane treatment that 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, the Middle East and Asia.’ Therefore, it is now seen as a global concern that needs to be proscribed.

Though the protestors in favour of the practice advocate that the procedure shall be performed cautiously and with medical supervision i.e. traditional circumcision won’t be performed,‘the World Health Organization coupled with UNFPA and UNICEF continue to condemn FGM in its entirety.’

International Legal Take on FGM

Documents

Many conventions in the word condemn FGM. For example, The General Recommendation No.14: Female Circumcision, of The Convention on the Elimination of Discrimination Against Women (CEDAW) provides for strategies for the eradication of FGM/C. Next in the Middle Eastern region, The Istanbul Convention (2011), under Article 38 specifically deals with FGM criticizing the procedure and asking states to take the necessary measures to criminalize it.

Moving towards the European region, the Directive 2011/95 of the European Parliament and Council under Article 30 renders categories of people who can be accorded international protection on the grounds of healthcare with people who have undergone torture or any form of psychological, physical or sexual violence, or minors who have been victims of any form of abuse, torture or inhuman and degrading treatment being one of them. FGM fits the bill and hence it can be said that the procedure is taken to be so brutal that it accounts for a ground for international protection.  Likewise, The Convention on the Rights of the Child (1989) under Article 19 provides for protection from physical and mental violence and the standards set encompass FGM.

Judgments

‘Forced FGM’ was outrightly refuted in the Opinion of Advocate General Bot, Bundesrepublik Deutschland v. Y. The court stated that when there is a risk of FGM and the state unable to protect its citizens, then that results in an abuse of international protection.

An upcoming jurisprudential trend is of people claiming asylum in other countries on the ground of this practice. Though a test has been established, different region’s courts require a different standard to be met. For instance in Omeredo vs. Austria, a Nigerian woman claimed asylum invoking Article 3 of the European Convention on Human Rights (ECHR). On the contrary, France has a different approach which was reflected in Miss K and Miss D v. France(2009), where an underage applicant and her mother sought asylum based on the claim that if they go back to their home country of Mali, the daughter would be forced to undergo the procedure. The court accepted the request and recognized how authorities in Mali functioned.

Hence one can deduce that the legal arena is replete with examples wherein the practice has been condemned, a dialogue has been generated around it and it has been considered reason enough to seek asylum.

Indian Legal Take on FGM

FGM, generally carried out by the Bohra community falls into Type I and Type IV category identified by WHO/UNFPA/UNICEF (as mentioned above). In 2016, Syedna Muffadal Saifuddin, the spiritual leader and 53rd Da’i al-Mutlaq of Dawoodi Bohras in one of his sermons khafz (FGM), to be a part of the essential religious practices of the Bohra community, in line with the opinions of Prophet Mohammed.

Following the existing legal framework in India, violence against women is usually dealt with by the Indian Penal Code. Sections 324 and 326 provide for penalties of imprisonment and fines for “voluntarily causing hurt” and “voluntarily causing grievous hurt” respectively. As FGM causes excessive genital bleeding, genital swelling, etc. it can be said to be covered in under this ambit. Some experts opine in favor of this interpretation. For example, Mr. R.K Raghavan, former director of CBI had said that even though FGM is not explicitly an offense under the IPC, there’s still an obligation on the police to register the case under Section 326 of the IPC.

The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) under Article 3 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 which states that “vagina includes labia majora”, we can draw a conclusion that the procedure which involves the insertion of a similar object is covered under Indian law and accordingly criminalized.

The Goa Children’s Act in Section 2(y)(i) 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…” Therefore, using the aforementioned logic, FGM can be said to be forbidden here as well.

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 launched the Integrated Child Protection Scheme (ICPS10 in 2009, for creating and establishing an efficient protective system for vulnerable children. It provides an interface with a range of services to cater to the needs of the children. It is argued that under these multitudes of policies that have been adopted the Indian state should take a prerogative and eliminate this practice. 

Combatting the argument that FGM is rooted in religion and culture

Proponents of FGM continue to root for this barbaric practice stating that it is something that 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 has been established that the aforementioned practice cannot be particularly called as a religious practice. UNFPA being a credible source has stated that ‘No religion promotes or condones FGM. And although FGM is often perceived as being connected to Islam, perhaps because it is practiced among many Muslim groups, not all Islamic groups practice FGM, and many non-Islamic groups do, including some Christians, Ethiopian Jews, and followers of certain traditional African religions. FGM is thus not a religious practice. Many religious leaders have denounced it.’Moreover, no religious scripts prescribe the practice and religious leaders take varying positions concerning 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 isn’t a religious practice.

This brings us to the next claim that it is a cultural practice, a practice which is so deep-rooted in tradition and ancient past that no one should be allowed to question its existence and continuance. As mentioned above, one can’t denounce the fact that it is an age-old practice. It has been adopted by different societies and people across continents and ages and continues 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. Behaviour can change when people understand the hazards of certain practices and 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, that 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’under the definition of torture in International Law.

Third, one might argue that the general populace can’t decide for every individual and their right to practice their culture. Similarly, it is very much a possibility that someone values the practice 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 and description of most of the procedures don’t paint that picture. Even if women are aware of the hazards, ‘they conform as circumcision offers them the only choice for cultural acceptance. Under the Masai tribal custom, for example, uncircumcised women cannot get married or be allowed to have children. In male-dominated African and Middle Eastern countries where female circumcision is the norm, marriage is essential to a woman’s survival. Further, a woman who successfully avoids circumcision, or who is not properly circumcised, is sure to be ridiculed by her peers, and she is almost certain to remain single, or if married, 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 wouldn’t 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 gendered discriminatory and a means to enforce patriarchy and appease to 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’ and 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.’

Keeping the above mentioned into account, it is hence argued that despite the claim of FGM being a cultural practice is true, its positives get highly outnumbered by its ill- effect and hence this menace needs to be controlled.

Conclusion

Through the article, it has been argued that such an inhumane and barbaric practice needs to come to an end. Despite the cultural significance, a practice that diminishes the agency of women is and shall be considered as torturous as it fiddles with their physical and psychological well being. Further, it is discriminatory and amounts to a violation of child rights and thus needs to be strongly condemned. Though a defence 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, eventually propagating the idea of an ‘ideal wife’. A practice which is existential on such a conservative, uncivilized, brutish and primitive ideology in the 21st century should awaken our consciousness and be reason enough to propel us to act.


Preferred Citation: Singh, S; Gautam, V, “Female Genital Mutilation: Human Rights Violation Under The Garb Of Culture” The law Culture (2020)

Authors

Shrishti

Shrishti is a Managing Editor at The Law Culture. She is a final year law student at Jindal Global Law School.Her areas of interest are Intellectual Property Rights, Family law, Arbitration, and Public International Law.

Vasundhara Gautam

Vasundhara is an Associate Editor at The Law Culture. She is a final year law student at O.P Jindal Global University. Her areas of interest are: Intellectual Property Rights, Anti-trust Law and Human Rights.

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