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Is Banning Female Genital Mutilation above Religion or is Religion is Above Humanity?

Every cloud has a silver lining, yet the clouds of the silver lining tend to overshadow the humanity and asks a girl to tolerate a custom which is a gross harm of her respect and pride of her body.

The Constitution of India, the holy book of rights of humanity, prescribes to practice certain religious and cultural practices which is given absolute protection under the Constitution. But the debate is whether such freedom has taken over the humanity under the garb of religion?

The battle of Female Genital Mutilation in India is a long drawn practice that experiences myriad uprisings from all corners of India, yet people in power have tried to suppress the subject and chose not see the this human mercilessness.

While this remains a debate the irony that stands tall is that we have a recognized and observation day called the “International Day Of Zero Tolerance For Female Genital Mutilation, yet the dream of being the subject recognized nationally on a scale of 10 is given no respect. For the sake of observing, the means of reaching the ends is defunct because the sweat that actually is needed to eradicate female genital mutilation from its grassroot.


What is Female Genital Mutilation?

Imagine a girl being taken into a dark gloomy room where she doesn’t even know that she has been subjected to a violation that is only bloody and in contingency kept aloof from certain sexual needs that the culture and religion tops over the cake.

Female Genital Mutilation is said to injure the female genitalia for non-medical or cultural reasons,said to hamper the international human rights and health of women and girls.

WHO(World Health Organisation), UNICEF( United Nations Children’s Fund) and UNFPA( United Nations Population Fund) jointly classifies four types of FGM:

Type 1 (partial or total removal of clitoris glans)

Type 2 (partial or total removal of the visible parts of the clitoris and the inner folds of vulva)

Type 3 (infibulation, or narrowing of the vaginal opening through the creation of a covering seal)

Type 4 (picking, piercing, incising, scraping and caustering the genital area).


Position of Female Genital Mutilation in India


India has been that rich heritage that recognizes the soil of India as “Bharat Ma”, having said that women are to be given the highest place and should be subjected to absolute serenity and reverence of her precious existence.


With a heavy heart it is rightly a custom, a religious practice that has been able to keep pace with the changing society and so called change in areas of women empowerment could be said to halted to a bumpy road like female genital mutilation.


In India, Female Genital Mutilation has been a customary practice, hugely gross and that violates the human rights or if we could also define it under the ambit of Right to Life under article 21 of the Indian Constitution.


To many, with the redundant data that the government have presented for updating of the records of the existence of the female genital mutilation, it brings data that are surprising, data that are misleading, and finally data that are not dependable.

As a matter of fact, a small study has shown a 75% incidence across the Bohra Muslim Community. The subjective examination, which was delivered in February, shows the pervasiveness of FGM among India’s Bohra Muslim Community- which is 75% of the respondents said that they had exposed their little girls to such a practice.

Luring a girl with chocolates to make her suffer a pain that is no less than death at a very tender age should contain some legislations to curtail the practice. It is very important to educate each girl whether she belongs to Bohra community or she belongs to some other community, there is a dire need to break the ice, it is a need of the hour to honour a girl as it is, to even have her own due of pleasure.


Bohra community in India is scattered to a count of around 1.5 million Bohra Muslims around several countries. In India alone the number is around one million, whereby type 1 of the FGM is carried out proudly more than other type. There are horrifying insights of advocating and raising the issue to the government because the official reports do not find any such evidences for which such issues could be addressed.


Can Article 25 and 26 of the Indian Constitution said to be a Catalyst to the Practice of Female Genital Mutilation?


The uprisings for the eradication of the illogical yet a revered religious practice has in the contemporary times has witnessed voices that want justice and relief. Having said that, not always do we have to think it in a way that seems to be right or wrong, but in true sense that brings out the best for the society at large, and this the motto that the Indian Constitution upholds.


The Indian Constitution is that prolix document that has been very keenly knitted together to safeguard the rights of its citizen. But the other aspect is that when there are laws in place, there has to be conflicts coming up and hindering growth.

History has been the evidence to clarify that deep rooted fact that women belonging to any community has been constantly subjected to the nature of violence and harshness all being man-made. But this is also true that from time to time, changes have brought into place enforced by the courts to justify why there was a need to bring in those paramount changes.


Very evidently, the topic at hand is in conflict with the religious protection given by the Indian Constitution itself under Article 25 and 26, due to this fact that Article 25 and 26 are maintainable in the court of law and that Female genital Mutilation is characterized as “essential religious practice”, thus criminalizing becomes very difficult.


FMG draws its roots from the practices of female circumcision that were extensively conducted primarily in Egypt and Yemen and in due process with migration of the Dawoodi Bohra Community in India residing mainly in the areas of Gujarat around 1500s.

As a matter of fact, Quran forbids harming the body, however if we go by the way of Islamic Jurisprudence we find that, within Sunni subsects of Hanafi and Maliki, FGC is obligatory for men and recommended for women too, within the Sunni Shafi’i it is obligatory for both men and women. The tradition in traditional Dawoodi Bohra Muslims is that, their supreme leader dictates how the wheel of religion is to be axled practicing the FGC, as dictated by the book Da’a’im al- Islam.


Essentially as the Indian Constitution has touchstone of fundamental right to let people be assured that there existence matters, yet conflicts with some aspects remain. While FGM is not practiced in all the Muslim community, the ambiguity remains that is the practice essentially a religious practice?

The Essential Religious Practice Doctrine, or the Essentiality test was propounded by the Supreme Court in the Shirur Matt case, where although court held that what comprises an ERP will be dictated by the precepts of the actual religion, it failed incredibly to fit in this bill of the Fundamental Rights.

Religious practices has to be exclusively indispensable by nature to be protected by or under the Constitution. However as the Constitution is concerned to the larger viewpoint which also covers the health and safety of a human, the writ petition concerning FGM was filed to ban the practice in 2015, the decision is yet to come as it is has been directed to the larger constitution bench.


The Constitution of India as mentioned above has explicitly mentioned art.25 that provides for freedom of conscience and free profession, practice and propagation of religion, yes but restricted to the fact that the public morality, health is not hampered.

While considering this above said fact that it might hamper the women’s health, and carrying out a practice which is also is said that there could be huge impact on their health in terms of physical, sexual and mental stability of a woman. Having said that there is a sexist rationale of denying a woman of some sexual desire that is said to turn them away from some marriage obligations.


When the Constitution pinpoints that special laws or provisions for women and children can also be made by the Parliament under Art. 15(3), and on the other hand we see that the move is yet to see a new morning.

Art.21, the right to life has a wider spectrum of fundamental rights that are embodied within the meaning of the Constitution.

KS Puttaswamy vs. Union Of India, brought in an eye opener of a citizen’s right to privacy but apart of this the case also highlighted the sexual and reproductive autonomy.

It is indeed a kind of fraud that is made to a child who cannot anticipate the long term impacts of FGM, also taking away her rights to make her own sexual and reproductive choices.

Therefore from the above arguments, we can say that Art. 25 and 26 to a lot of extend is a catalyst to FGM in India.


What are some specific punishments?


Since the Female Genital Mutilation inflicts acute bodily injury, there exist provisions under criminal laws to atleast not constitutionally but criminally it is seen as a crime.


Section 319 to 326 of the IPC specifically provides for grievous hurt.


Especially, Sections 324 and 326, IPC give punishments of detainment and fines for 'Voluntarily causing grievous injury’


Previous Director of the Central Bureau of Investigation (CBI), R.K. Raghavan, has noticed that however FGM isn't unequivocally an offense under the IPC, on an objection, the police are committed to register a case under Section 326 of the IPC.


Area 3 of the Protection of Children from Sexual Offenses Act, 2012 (POCSO Act) that tends to penetrative rape by any individual on any youngster, bury alia characterizes it as inclusion of any item into the vagina of the young lady.


Any addition of any sharp item will be exposed to disciplines which would be perused close by with sect.375 of clarification 1 of the IPC.


While preventive steps could be a move by the state to look after the needs of the children as mentioned under the National Policy of Children, 2013.Alon with this the central sponsored Integrated Child Protection scheme launched in 2009 by the Ministry of Women and Child Development, aiming to create a system that can help the vulnerable children in terms of child care, judiciary help, police, labour etc.

One of the very important information that is worth to read is that under POCSO Act under Sect.19, the section makes it mandatory on any person who has information of the offence inorder to report it to the police and this makes it a very important and necessary action for the community to know so that such a cruel practice could be given a full stop.


Conclusion.


Women the harbingers of life, the carriers of the wheel called life, have to be given due respect to their very existence. However through such articles we also need to bring awareness to the world that one such inhumane practice practiced in one community needs to stop because it could also bring more such incidences from other than such a community.


For sure the practice cannot be said to be small but yes at this stage it needs to be eradicated to stop it spread like a wildfire. If as a society we could take away the practice of sati, I am sure we are to eradicate this too.

Therefore anyone who reads this article, after reading this article should feel a little more led down and stop and realize that such practices needs a huge huge uproar from all walks of life.


Submitted by:

Indrani Mukherjee

Xavier University, Bhubaneswar

BA.LLB(H)







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