FGM in India
Critique
“Regard being had to the nature of the case, the impact on the religious sect and many other concomitant factors, we…think it appropriate that the larger Bench may consider the issue in its entirety from all perspectives”.
– Sunita Tiwari v. Union of India, WP (C) No. 286/17, order dated 24/9/2018 at 4.
CURRENTLY, in the absence of any prohibition against FGM in India, the practice continues, especially among the Dawoodi Borah community. The permissibility of FGM has been challenged in Sunita Tiwari v Union of India, and is awaiting adjudication before a larger constitutional bench.
The Respondents have erroneously averred that (a) Female Cutting (‘FC’) (as though this differs from FGM) is an integral sacred part of the religion of the Dawoodi Borahs and is consequently protected under Articles 25 and 26 of the Indian Constitution ; and (b) International Conventions are not enforceable if they are in conflict with domestic laws, especially the Constitution. Neither of the above assertions are correct.
First, FC is no different from FGM. FC/FGM is not a religious, but a sociocultural and/or regional practice. In any event, the protection of any religious freedoms does not de facto enable or legitimise the curtailment or violation of other rights under the Constitution. A balancing exercise must be conducted and it is glaring that the right to life, for example, would take primacy over the right to freedom of religion (discussed further below). Even independently, religious freedom is not unfettered and religious practices certainly come with limitations – however “integral” they may appear to be to a sub-religion – as was evidenced in the prohibition of Stoning. Heinous, barbaric practices, albeit “centuries old”, cannot be validated under the guise of exercising cultural freedom, as was illustrated by the proscription of Sati.
Second, FGM is forbidden in accordance with India’s various international obligations, and more importantly, as a jus cogens norm of universal law. To begin with, it is erroneous to suggest that prohibiting FGM would be in conflict with domestic law. There is no domestic law or provision in the Constitution that expressly allows for this barbaric practice, and the Court cannot read such protections into any existing law because doing so would legalise a form of torture. Furthermore, the suggestion that international norms are inapplicable when in conflict with domestic law is manifestly inaccurate. FGM as a form of torture is subject to a jus cogens norm and consequently attracts a universal and absolute prohibition. This law is inviolable irrespective of any domestic or international legislation to the contrary. As Malcolm Bishop KC recently stated, jus cogens “is arguably the most important rule of international law, trumping all domestic legislation”.
The Supreme Court (Court) has referred the matter to a larger bench for consideration; seven years later the matter remains unheard. Regrettably, the Petitioners did not seek any interim injunction on the practice, so the tradition continues until the case is finally heard and judgment passed. Alongside considering the impact of FGM on other fundamental rights such as equality and life, the Court will also examine FGM as an act of torture or cruel, inhuman, degrading treatment.
Upon correctly assessing this practice as a form of torture, it is hypothesised that the Court will be obligated to prohibit FGM in India. This view is congruent with that expressed by the Special Rapporteur on Torture, who stated, despite the prohibition on FGM, in some States it is “still trivialised and the comparison between [it] and “classic torture” will raise awareness to the level of atrocity” it embodies and, as a consequence, urge States to act immediately.
India in breach of law
Before we review India’s obligations under the various bodies, it is important to recapitulate dualism and the interplay between international and national law. A dualist nation must expressly transpose its obligations under international law into domestic legislation, to render them justiciable in domestic courts. This is often interpreted by India as though it can elect which parts of a treaty it will transpose. First, this interpretation is in itself flawed, as once a State has ratified a treaty, it is automatically bound by those provisions (subject to any reservations) under international law. In effect, whilst India may enjoy a right to nationally transpose only part of its obligations under a treaty, such an act only prevents domestic adjudication of those provisions but does not discharge India of its legal obligations under the treaty, meaning that noncompliance still amounts to a violation of international law. Furthermore, Article 51 of the Constitution requires the State to “endeavour to foster respect for international law”. This seems to strongly encourage the government to honour its commitments even in the absence of explicit legislative action.
Authoritative international bodies have rejected any and all justifications raised in support of FGM by asserting that it “can neither be normalised nor used as a justification to invoke sociocultural and religious customs to the detriment of the wellbeing of women and girls”. The immediate need to ban FGM, and provide a remedy to those who have suffered as a result of it, is derived from all of India’s legal obligations – domestic, international and universal. Whilst the courts may not have decided this issue, India is currently in breach of all three bodies of law because it has failed to enact any legislation prohibiting FGM.
India is in breach of domestic law
The preamble of the Juvenile Justice (Care and Protection of Children) Act, 2015 (‘JJA’) reads:
“The Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of United Nations, which has prescribed a set of standards to be adhered to by all State parties in securing the best interest of the child;”
“It is expedient to re-enact the Juvenile Justice (Care and Protection of Children) Act, 2000 to make comprehensive provisions for children alleged and found to be in conflict with law and children in need of care and protection, taking into consideration the standards prescribed in the Convention on the Rights of the Child”.
The JJA definition of children in “need of care and protection” includes children who reside with persons that may have or have injured, abused or exploited the child (under Section 2(14). Girls susceptible to FGM, thus, squarely fall within the scope of this legislation. Notably, the JJA expressly adopts the standards prescribed in the CRC as those required to secure the best interest of the child, which include decisions regarding the child’s physical and emotional development (under Section 2(9). In doing so, India has bound itself by its domestic law to the standards delimited in the CRC.
Put another way, the Indian government cannot argue that it has discretion to reject the standards outlined in the CRC because it purposefully adopted those standards to govern the JJA. The CRC requires States to extend “special safeguards and care” to all children without any discrimination, irrespective of ethnic origin, and to take “all appropriate measures to ensure the child is protected against … all sorts of beliefs of the child’s parents…” (in the Preamble and under Article 2(9)). Effectively, the CRC mandates signatories to protect children against socio-cultural beliefs that harm children, which includes the practice of FGM. Since the JJA has expressly adopted the standards prescribed in the CRC, in failing to prosecute adults responsible for the performance of FGM, respective prosecutors are in breach of their duties under law (under Articles 14 and 18 of the VCLT).
More importantly, the failure to prohibit FGM is a clear violation of these girls’ fundamental, constitutional, rights. Firstly, in allowing the commission of a heinous act on a select minority of girls, India is in glaring breach of Article 14 of the Constitution. There is sufficient case law of the Supreme Court to support the proposition that an act that is criminal as a form of grievous hurt under Sections 117 and 118 of the Bhartiya Nyaya Sanhita (Previously, Sections 325 and 326 of the Indian Penal Code) if practiced on young girls in general cannot, at the same time, be legal if performed on girls belonging to a certain sub-culture. Such a carve out constitutes manifest discrimination between girl children in general as compared with those belonging to a particular community, in contravention with Article 14 of the Constitution.
Astoundingly, today, every 12 minutes a girl dies as a result of complications from FGM. The dangers of this practice are commonly known. In failing to prevent a practice that could unsurprisingly result in the death of a girl child, India is in blatant violation of Article 21 of the Constitution. The balancing of rights invariably tilts in favour of the right to life if pitched against the freedom of practice and propagation of religion. This is in stark contradistinction to the erroneous argument raised by the Respondents in Sunita Tiwari, which averred that, “Article 21 would not be attracted as the practice is voluntary showing respect to the religious beliefs and it is not done by any societal imposition”.
This interpretation of the right to life is manifestly incorrect and illogical for a series of reasons, the most obvious of which is that consent is immaterial in reviewing the right to life – otherwise suicide and euthanasia would be legal in India.
In failing to prohibit FGM, States within India are in plain breach of the Constitution, and India, as a nation, in violation of both its duties towards its citizens (especially minors) and the larger international legal order.
India is in breach of international law
In its ratification of various international treaties, especially the CRC and ICCPR, India has acceded to a set of obligations to which it must adhere to (as explained above, under Article 14 of the VCLT). To reiterate, these obligations apply irrespective of its status as a dualist nation, or the fact that it has not appropriately transposed these obligations into domestic law.
Currently, because of India’s failure to prohibit FGM – an act of torture performed on minor girls belonging to certain cultures or ethnic groups, primarily the Dawoodi Borah community – it is in express violation of its obligations under international law.
Convention on the Rights of the Child (‘CRC’)
As discussed above, the JJA, is India’s attempt to transpose into domestic law its obligations under the CRC. Article 2 of the CRC requires States to “adopt such laws or measures as may be necessary to give effect” to these rights, without distinction of any kind. This provision requires India to take proactive steps in passing national legislation to uphold the standards of the CRC. By failing to enforce “appropriate legal protections,” i.e., in the absence of prohibitions against FGM, India is in breach of its obligations under Article 2 CRC.
Furthermore, Article 3 CRC requires States to take all actions in “the best interests of the child” and Article 6 CRC reaffirms the “inherent right to life” of all children. It is indisputable that FGM is not in the best interest of any child, especially given the extreme long-term medical conditions that ensue should the child survive the procedure. Importantly, Article 37(a) CRC asserts that “State Parties shall ensure that no child is subjected to torture or other cruel, inhuman, or degrading treatment”. This precise finding was confirmed in Secretary of State for the Home Department v K (FC) (2006) where the House of Lords held that FGM “will almost inevitably amount either to torture or to other cruel, inhuman or degrading treatment within the meaning of 37(a) of the CRC.” Since FGM is widely acknowledged to be a form of torture, or cruel, inhuman, degrading treatment, India is in clear violation of its obligations under the CRC in failing to prohibit it.
International Convention on Civil and Political Rights (‘ICCPR’)
Importantly, the preamble of the ICCPR outlines that the enjoyment of civil and political rights “can only be achieved if conditions are created” that recognise “the inherent dignity of the human person”. Article 1 ICCPR affirms that rights are premised on self-determination where individuals must freely determine and pursue their social and cultural development. This is even more important in relation to minors, who should certainly not be subjected to permanent dismemberment under the guise of their parents’ or communities’ cultural development, particularly in the absence of their own informed consent.
Article 24(1) ICCPR echoes this, explaining that “every child shall have, without any discrimination as to…religion, national or social origin…the right to such measures of protection as are required by his status as a minor” (emphasis added). Article 2(1) ICCPR famously obligates all States “to respect and ensure” the rights recognised in the ICCPR. India, by virtue of Article 2(2) ICCPR, is under a legal obligation to “adopt such laws or measures as may be necessary to give effect” to these rights, without distinction of any kind including “religion, political or other opinion, national or social origin, birth or other status”. Currently, in the absence of any national legislation prohibiting practices such as FGM, India is in violation of its obligations under the ICCPR, especially since FGM is practiced on minors who effectively cannot provide informed consent.
Crucially, Article 7 ICCPR – a non-derogable right – dictates that, “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”. Since both caselaw and international guidance accepts FGM as a form of torture or cruel, inhuman or degrading treatment, India is in patent violation of its obligations under the ICCPR by failing to prohibit this practice.
It is noteworthy that India is in violation of the abovementioned conventions for two distinct reasons. The first violation arises as a result of its failure to promulgate appropriate national laws to give realisation to obligations outlined therein, and the second, as a result of it, failing to protect minors in its territory from the torturous practice of FGM.
India in breach of universal law
The UN Special Rapporteur on violence against women appropriately surmised:
“So fundamental is the right to be free from torture that, along with the right to be free from genocide, it is seen as a norm that binds all nation States, whether or not they have signed any international convention or document. Therefore those cultural practices that involve ‘severe pain and suffering’ for the woman or the girl child, those that do not respect the physical integrity of the female body, must receive maximum international scrutiny and agitation. It is imperative that practices such as female genital mutilation, honour killings, Sati or any other form of cultural practice that brutalizes the female body receive international attention, and international leverage should be used to ensure that these practices are curtailed and eliminated as quickly as possible”.
FGM as a form of torture is ipso facto (i.e., by virtue of that very fact) prohibited by law. This remains true notwithstanding any domestic legislation to this effect. This remains true despite the continuance of this practice until further review. This remains true whether or not India is a signatory to the Convention Against Torture. This remains true irrespective of whether India is a monist or dualist State. FGM, as a jus cogens norm, is prohibited by universal law and takes primacy over all other considerations.
Conclusion
In sum, it is plain that FGM is a form of torture and other cruel, inhuman, degrading treatment. Any practice that constitutes torture is contrary to domestic, international, and universal law. It is a fact that the prohibition against torture is a jus cogens norm, which attracts universal and inviolable banning the world over. To reiterate, it is a fundamental rule of international law that cannot be derogated from; one that prohibits certain acts regardless of any treaty or law.
Today, the practice subsists and is not subject to any prohibition in India. India, as a nation, is under binding legal obligations and must take immediate steps to prohibit the practice of FGM through the enactment of legislation and enforcement via domestic courts.
