No Custom, No Faith, No Excuse: Why FGM Must Be Banned in India

In 2012, the United Nations General Assembly designated February 6 as International Day of Zero Tolerance for Female Genital Mutilation (FGM). On February 6 this year, the United Nations, alongside leading organisations across the globe, called on everyone to renew commitments and ensure that every woman and girl can live free from FGM. The goal is to eradicate the practice worldwide by 2030 – yet India remains without an express prohibition.

Astoundingly, today, every 12 minutes a girl dies as a result of complications from FGM, and there are approximately 230 million (23 crore) girls and women alive who have suffered it around the world. The dangers of this practice are widely known.

FGM is a procedure involving the partial or total removal of external female genitalia. It is typically carried out on girls between the ages of 0 and 14, varying across communities. For instance, the Dawoodi Bohra community in India reportedly circumcises girls around the age of seven. Common justifications offered for FGM include: (a) religious, traditional or cultural freedom; (b) social norms framing it as a rite of passage; (c) the purported need to curb female sexuality; or (d) supposed health benefits.

In truth, the practice has no health benefits and often results in severe bleeding, menstrual issues, complications in childbirth and other serious medical outcomes.

FGM is frequently misattributed to Islam. However, it is a cultural and ethnic practice rather than a religious one. In any case, the protection of any religious freedoms cannot enable or legitimise curtailing or violating other inviolable rights, as was seen in the prohibition of Sati. The right to life guaranteed by the constitution, for example, would take primacy over the right to freedom of religion.

Unsurprisingly, FGM is prohibited in most parts of the world and is recognised globally as a violation of human rights – especially the right to be free from torture or cruel, inhuman or degrading treatment. Lamentably, the practice, sometimes known as khatna or khafz, remains prevalent in India and is not explicitly prohibited.

FGM violates a series of firmly established legal norms, including the principles of equality and non-discrimination, as well as the rights to life, health and freedom from torture. The determination that FGM amounts to torture has been repeatedly affirmed by domestic and international courts. Various UN bodies have confirmed that FGM is a form of gender-based violence that “constitute[s] ill-treatment and torture”.

The prohibition on torture is codified in a range of binding international conventions and treaties. Recently, in Forum Against Harmful Practices v Sierra Leone, the West African regional court of justice held: “Given the immediate severe physical pain or suffering associated with FGM, its long-term health complications including psychological problems, and the stigma associated with it, the Court considers that FGM constitutes an inhuman or degrading treatment.”

Also read: Voices of Resistance Against Female Genital Mutilation in India Grow Louder

Importantly, despite the court’s finding that this particular incident did not qualify as “torture”, under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), the judgement expressly affirmed that “FGM meets the threshold of severe physical or mental pain or suffering to constitute torture”.

This finding is congruous with precedent across the Commonwealth and international tribunals. The Committee Against Torture (CmAT) – the body responsible for monitoring the UNCAT – in D.B. v Netherlands reiterated that “female genital mutilation causes permanent harm and severe psychological pain to the victims, which may last for the rest of their lives” and consequently concluded that the practice of subjecting a woman to female genital mutilation is contrary to the obligations enshrined in the Convention.”

Many African nations expressly criminalised FGM over two decades ago – Ghana in 1994, Burkina Faso in 1996, Kenya in 2001 – illustrating that the practice is considered archaic, barbaric and unjustifiable. The United Kingdom promulgated the Female Genital Mutilation Act in 2003, Australia promulgated similar legislation in 1996 and most US states list FGM as a criminal offence, with federal legislation imposing an absolute prohibition.

Crucially, India has ratified many international covenants that bind it to prevent torture, including the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. Notably, no further step is required to bind India to these obligations: upon ratification, India is bound by these instruments.

While India may choose the manner and extent of domestic implementation, this does not absolve it of its obligations under international law. Failure to comply with ratified treaties continues to constitute a breach at the international level. Further, Article 51 of the constitution directs the state to endeavour to foster respect for international law. Hence, India does need to honour these commitments even absent an express domestic legislation barring FGM.

Most importantly, because of the extreme nature of torture and its fundamental incompatibility with basic principles of humanity, the prohibition against torture is an accepted jus cogens norm – a peremptory rule of international law from which no derogation is permitted. As has been observed, “The prohibition of torture has since been elevated to jus cogens, thus recognising that it is so fundamental that it supersedes all treaties and customary laws.”

Nations tolerating such practices, irrespective of their adherence to any national or international legislation, are in serious breach of international and universal law and must immediately outlaw them.

In India, the permissibility of FGM has been challenged in Sunita Tiwari v Union of India, which is currently awaiting adjudication before a constitutional bench. The Supreme Court of India referred the matter to a larger bench for consideration; seven years later, the matter remains unheard. Regrettably, the petitioners did not seek an interim injunction restraining the practice, and so the tradition continues until the case is finally heard and judgement is delivered.

By failing to prevent a practice that can result in death, India is in blatant violation of Article 21 of the constitution.

This stands in stark contradistinction to the argument raised by the respondents in Sunita Tiwari that “Article 21 would not be attracted as the practice is voluntary, showing respect to religious beliefs and it is not done by any societal imposition”. This interpretation of the right to life is manifestly incorrect and illogical for several reasons, the most obvious being that consent is immaterial in reviewing the right to life – else, attempt to commit suicide and euthanasia would be considered legal in India.

Similarly, the practice cannot attract protection under the freedom to practise religion under Article 25. First, it is not religious in nature. Second, even if it were, freedom of religion does not extend to barbaric and heinous practices, as is evident from the rejection of practices such as stoning.

Even more importantly, the failure to prohibit FGM is a clear violation of the fundamental rights of girls and women subjected to the procedure. Allowing the heinous practice to persist against a select minority of girls is a glaring breach of Article 14 of the constitution.

There is sufficient case law to support the proposition that subjecting a child to FGM constitutes grievous hurt under sections 117 and 118 of the Bharatiya Nyaya Sanhita (BNS). An act that amounts to grievous hurt when inflicted on children generally cannot become lawful merely because it is performed on girls belonging to a particular community. Such a carve out constitutes manifest discrimination between girl children in general as compared with those belonging to a particular community.

Thus FGM, as a form of torture, is ipso facto prohibited by law. This remains true notwithstanding the absence of domestic legislation expressly banning it, and regardless of whether it is claimed to be religious or customary. As a jus cogens norm, the prohibition against torture is part of universal law and takes primacy over all other considerations.

The UN Special Rapporteur on violence against women appropriately summarised the situation:

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 brutalises 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.

Yet the practice persists in India, without any prohibition, despite binding legal obligations against torture and harm. India must take immediate steps to prohibit FGM through legislation and enforcement in domestic courts.

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