August 30, 2020
New Delhi: With Sudan recently criminalising Female Genital Mutilation (FGM) with a jail sentence of up to three years, the global movement against FGM is set to get a fillip. In Sudan, 87% of girls undergo FGM, which includes all procedures that involve partial or total removal of the external female genitalia or other injuries to female genitalia organs for non-medical reasons. Salma Ismail, a spokeswoman in Khartoum for the UNICEF said, "The law will help protect girls from this barbaric practice and enable them to live in dignity… And it will help mothers who didn't want to cut their girls, but felt they had no choice, but to let it happen."
Twelve developed countries have passed laws criminalizing the practice and a few countries have enacted laws to ban and criminalize FGM by medical practitioners and people who deliberately contribute to this practice. In India, the Dawoodi Bhora community practices it as "khafz" or “khatna”. There is no specific law in India that criminalizes FGM and deals with the propagation, preparation and support of FGM with proper legal definition for word FGM and terms like clitoris, labia major and labia minor. Under the IPC, on a complaint, police are obliged to register a case under Section 326 of the IPC that provides penalties of imprisonment and fines for ‘voluntarily causing hurt’ and ‘voluntarily causing grievous hurt’. FGM, which requires the insertion of a sharp object into the vagina of a child, may be also covered under Section 3, POCSO Act read with explanation 1 of Section 375 IPC, which categorically states but without proper definition that the term vagina includes labia majora. The practice is also against the fundamental rights enshrined under Article 14 and 21 of the constitution of India.
The practice violates human rights principles along with the principles of equality and non-discrimination based on same-sex, right to life, freedom from torture and cruel, inhuman or degrading treatment or punishment. These are basic fundamental rights which every person is entitled to enjoy. While the practice of carrying out FGM may qualify as a form of "hurt or grievous hurt'" under the IPC, a crime under Section 3 of the POSCO Act and may be addressed under the existing laws of sexual assault, child sexual abuse and domestic violence, eradicating the practice requires a more holistic approach, including a dedicated legislation.
(Naina Bhargava, a philosophy and political science student at Miranda House, University of Delhi, is an intern with OneWorld Foundation India)