Cannot defend the indefensible: The unconstitutional case of female genital mutilation

[dropcap]T[/dropcap]he clash between individual rights and liberty as guaranteed by the Constitution in Articles 14, 19 and 21, and the right to profess, practice, and propagate religion of one's choice as in Article 25 seems to be a recurring phenomenon in the public discourse of India. The clash was at the root of the debate surrounding the decriminalisation of Article 377, and also formed the major point of contention during the Sabarimala temple entry case. Although we have seen the triumph of constitutional ideals of human rights and liberty in these two cases, in many other instances, Article 25 is often exploited to impose religious ideals of one community over personal freedoms and rights of the individual. One such instance is the ongoing case of female genital mutilation.

I went through, in sheer horror, the accounts of survivors of one of the most horrific rituals conducted right under our noses — Female Genital Mutilation (FGM). The horrendous and extremely painful procedure involves cutting off of the clitoris — an extremely sensitive part of female anatomy, and in some cases, sewing the labia majora shut leaving a small hole for urination. Apart from the heartbreaking trauma that the survivors talk about and their ill-fated belongingness to the Dawoodi Bohra community in India, an important and common thread in all narrations was the age at which they were subjected to FGM or khafz (as it is known among the Bohras).

In the Bohra community, girls are subjected to FGM between the age of five to seven years. At this tender age, girls, usually accompanied by an elder woman of the family, are taken to dark and unhygienic alleys of places like the Bohri Mohalla and Bhindi Bazar in Mumbai under the pretence of going out to eat or to buy toys. They are pinned down as the blade gets hot on a stove, stripped naked, and subjected to mutilation of the clitoris without anesthesia, as stated above, while more brutality follows in some cases.

Along with the psychological trauma, the girl child is left to deal with discomfort during urination, risks of infection, and later, complications during pregnancy and delivery, and painful intercourse for the rest of her life. The decree from the Bohra High Priest — the Syedna — whose office, according to various press reports, has repeatedly refused to comment on the matter, calls the clitoris "haram ki boti" or "flesh of sin". The practice is defended as a part of Taharat (purification) and is aimed at reducing sexual pleasure and sex drive in females.

"The pain was extreme, and I could not understand what had happened with me", recalls Masooma Ranalvi in interviews given to news outlets. One amongst millions of victims of the abuse, Ranalvi is the woman who spearheads the fight against female genital mutilation in India today. An online signature petition on Change.org started by her has received over 1,87,811 signatures at the time of writing this article. Her group "Speak Out On FGM" has generated a much needed debate and has started a conversation about a taboo that was forbidden to be questioned for a long time.

When asked about the cause for such silence, Ranalvi says that two main sentiments pressure the women — ignorance and fear. Ignorance about the fact that women can actually do something about FGM and that such mutilation isn't normal. FGM is often a terrible memory that the victims simply block out. Moreover, the fear of boycott from the Bohra community — that something might happen to the parents or to their family if they do not conform to the community demands and mutilate the genitals of their young girls — runs deep in this section of society. The fear and the threats are "extremely palpable and real", says Ranalvi. The rampant and pathological "honour culture" that plagues most Indian communities adds to the existing fear. Bohra families believe that nobody would marry an uncircumcised girl since they are considered as impure. These factors and the blind eye that the government turns towards the practice keep it alive.

Apologia and defence of this indefensible crime against humanity is, however, alive and thrives under the camouflage of right to practice religion. Samina Kanchwala, Secretary of Dawoodi Bohra Women for Religious Freedom (DBWRF), calls FGM their "basic religious practice". While a woman defending female genital mutilation is ironic enough, Samina goes on to describe khafz as "a minor procedure" and "completely harmless". Gynecologists and human rights groups worldwide disagree.

The practice is banned across 42 countries, out of which 27 are in Africa — the region most plagued with genital mutilation of women. The United Nation's Universal Declaration of Human Rights, to which India is a signatory, recognises FGM as a violation of human rights and seeks to eliminate the practice from the world by 2030. UN Women — the United Nations entity dedicated to gender equality and the empowerment of women observes February 6 as International Zero Tolerance Day for FGM and estimates that over 200 million women alive today have been subjected to the practice.

Countries like the USA, the United Kingdom and Australia have banned the practice and have inscribed harsh sentences (up to 14 years in prison in case of Australia) in their penal codes against the convicts. Australia was witness to convictions in November 2015 and May 2018 in Sydney and Queensland respectively. Former FBI Director James Comey, in his last and much publicised hearing in the US Senate, also talked about the practice being a felony in the USA since 1996. Comey testified how two doctors, both Dawoodi Bohras, were held by the FBI in April 2017 in Michigan when they tried to leave the country. The doctors are undergoing trial and are alleged to have performed FGM on young girls during the afterhours of their clinic.

With a PIL filed in the Supreme Court by lawyer Sunita Tiwari against the practice of FGM, India is beginning to address the issue. While organisations like Kanchawala's DBWRF invoke their right to freedom of religion when questioned about FGM, the matter has received strong criticism by the Supreme Court of India.

On July 9, 2018, the bench headed by the then CJI Dipak Misra and consisting of Justices A M Khanwilkar and D Y Chandrachud, questioned the practice of FGM saying that it "violates the bodily integrity of a girl child". Since the Bohra community forms a major vote bank for the BJP, it was surprising to see the Centre backing the PIL. Attorney General K K Venugopal, representing the Centre, argued that the practice causes irreparable harm to girl children and must be banned. As advocate A M Singhvi appeared for Muslim groups arguing that the matter be referred to a constitutional bench since it pertains to "essential practice of religion", the Bench responded by asking "Why and how should the bodily integrity of an individual be part of the religion and its essential practice?"… "Why should anybody else have any control over the genitals of an individual?" it added.

While Singhvi argued from a rather fallacious point — later invoking and trying to use the premise that male circumcision is widely allowed and accepted, the court called the issue "extremely important and sensitive" and made States with substantial Bohra population, like Kerala and Telangana, parties to the case. The existing States that are parties in the case are Maharashtra, Gujarat, Rajasthan and the Union Territory of Delhi. It also issued notices and sought replies from four Union ministries — including the Woman and Child Development ministry. Ministries of Law and Justice, and Social Justice and Empowerment have also been made parties.

In the hearings that followed, vote-bank politics at last got the better of law. Soon after the Prime Minister's much popularised meeting with Syedna Mufaddal Saifuddin on September 14, 2018 in Indore, on September 24, 2018, the Supreme Court referred the issue to a larger Constitutional Bench — a requisition that did not feature in the Attorney General's original submissions to the court. Masooma Ranalvi, being an intervener in the case and disappointed with the move, called the referral "an attempt to re-frame the issue from being a violation of the Constitutional and human rights, to that of a right to continue the discriminatory practice under the garb of religious freedom". The Constitutional Bench is yet to hear the plea further.

I, however, and in pride, stand apart from the crowd that Advocate Singhvi tried to (unsuccessfully) invoke by bringing in the normality of male genital mutilation. The principles of human rights and liberty stand in strong contradiction to such practices. Subjecting a child of any gender, who cannot consent to such disfigurement of the body, is a violation of the guarantee of life and liberty as provided by the Indian Constitution, which recognises natural justice and natural human rights as its ideals. Recently, Iceland became the first country to propose a complete ban over non-consensual genital mutilation regardless of gender. The move has, without much surprise, rattled the Jews and the Muslims of the country.

While it is unsettling to realise that defence and apologia exists for crimes as horrendous as genital mutilation, and that a seemingly well-wishing parent would subject their young kid to such a ritual, evil practices and religion often go hand in hand. I cannot resist but quote the famous physicist Steven Weinberg here. He said: "Religion is an insult to human dignity. With or without it, you would have good people doing good things and evil people doing evil things. But for good people to do evil things, that takes religion." Good people doing evil things (believing that they are good) seem to be a recurring phenomenon in such cases. It is of utmost importance for the Judiciary and the Government to recognise the weight and importance of their intervention in this larger socio-philosophical space.

The PIL seeks a complete ban on the practice of female genital mutilation and for it to be made a "non compoundable, non bailable" offence. It also asks for harsh sentences to be included in the IPC against the practice. Article 25 of the Indian Constitution that is often invoked by the defence in such cases clearly states that the freedom of religion is not absolute and is subject to public order, morality and health. As thousands of girls are subjected to FGM in India, and many are flown into the country from places like the USA and UK so as to exploit the country's indifferent attitude to a worldwide problem and to be thereby subjected to FGM, all eyes are on the Supreme Court to hold the ideals of the Constitution up and declare FGM an offence. It is about time that India joins the international movement against Female Genital Mutilation and that the law protects its citizens from such heinous violation of human rights and bodily integrity.