'Robs You of Autonomy Over Your Own Body': Why Female Genital Mutilation is Violative of the Constitution

Legal ordeals stretching over years need to be first emphasised through personal stories, particularly when they involve the slaying of young girls aged six and seven, and especially when the slaying is done in the name of ‘religion’, ‘custom’ and ‘tradition’.

Take the case of female genital mutilation (FGM) wherein the clitoral head is deliberately and deceptively cut using blades and knives heated over a stove. The same heated instruments are then used by untrained women to nip the clitoris of young, unsuspecting girls pinned down by their mothers, grandmothers and aunts.

The girls, taken to decrepit houses in Mumbai’s Bohra mohallas – are given the chocolate or ice cream that becomes the pretext of them happily tagging along with their mothers and aunts who they trust the most – but return home shrieking in pain.

The pain lasts a lifetime and continues to mar young girls belonging to the over two million Bohra community in India. The pain, however, has also found a voice, despite its psychological dimensions – or perhaps because of the trauma – and Masooma Ranalvi, who was cut 50 years ago, decided to take the matter to court.

Ranalvi and other Bohra girls, subjected to FGM or ‘khatna’ or ‘khafz’, as it’s called within the community, first drew attention to the age-old practice through online campaigns and by knocking on the doors of the Women and Child Ministry, the National Commission of Women and the National Human Rights Commission.

The legal ordeal, which started in 2017, will now be taken up this month by a nine-judge bench of the Supreme Court, headed by Chief Justice of India (CJI), Surya Kant. The case, however, may not end in a ban on FGM because it has been clubbed with other petitions pertaining to “religious freedoms’ and include the Sabarimala case involving the entry of women into the temple. Another petition involves the rights of Parsi women from accessing fire temples only because they have chosen to marry outside the community. The fundamental question being raised by Ranalvi and her lawyers is pertinent: can bodily harm involving a brutal practise in which the clitoris is cut be clubbed with cases involving women being allowed into places of worship?

The nine-judge bench is examining the fundamental questions about the scope of Articles 25 and 26 of the Constitution and the extent to which courts can intervene in religious practices, but FGM, argues Ranalvi predates Islam and goes well beyond religion.

“We hope that the judges look at genital mutilation from the point of view of bodily rights and child rights. Nobody has the right to touch a girl’s most private parts and leave her scarred for life. So many  countries, including Muslim-majority nations such as Egypt and Indonesia, have introduced legal measures restricting FGM,” she told The Wire, adding, “The practice is full of subterfuge. It is an act of violation that leaves you with a sense of betrayal. It robs you of autonomy over your own body.”

The stand of the government has not made the battle against female genital mutilation any easier. In 2017, an independent lawyer filed a Public Interest Litigation with specific objectives:

• Declare the practice of FGM as a violation of the fundamental rights of women and girls.
• Direct the Government to comply with its international human rights obligations by framing anti-FGM law and policies.
• Prosecute cases of FGM under existing criminal laws.

Ranalvi who was still working within the community through an organisation called We Speak Out, filed an intervention petition and the initial hearings were encouraging. In 2018, a three-judge bench comprising then CJI Dipak Mishra, Justice D.Y. Chandrachud and Justice A.M. Khanwilkar observed that FGM prima facie appears to be a violation of the right to privacy guaranteed by the Constitution, and the bodily integrity of the child. The court also noted that there was no scientific or medical basis for the practice of FGM, which is likely to cause a significant amount of trauma, pain and bleeding.

While the practice of FGM does fall under certain sections of the Indian Penal Code (IPC) and the Protection of Children from Sexual Offenses (POCSO) Act 2013, India does not have any specific law prohibiting the practice of FGM/Khafz.

Just before the case had begun, the then minister for Women and Child Development, Maneka Gandhi was forceful about FGM being a crime under existing laws. She asked the Syedna, the religious head of the Bohra community, to end the practise, saying the government would, if he didn’t. In 2019, however, the Syedna called on prime minister Narendra Modi when the latter was in Mumbai.

In a surprising turn of events – or not so surprising – the government, in its written submissions before the Court, stated that, “...there was no official data or study (by the National Crime Records Bureau (NCRB) etc) which supports the existence of female genital mutilation in India.” The critical question, however, is, how could the NCRB have collected any data whatsoever when FGM has not been criminalised?

The pro-FGM lobby from within the Bohra community stepped in through the formation of a front called the Dawoodi Bohra Women’s Association for Religious Freedom (DBWRF) which vocally opposed the PIL; and intervened before the Supreme Court. The DBWRF, called out the PIL, as an attack on religious freedom.

The sad part of the invasion of the most private parts is the sober fact that it is a process being done to women by other women. The belief that the clitoral head is ‘unwanted skin’, that it is a ‘source of sin’ that will make them ‘stray’ out of their marriages are reasons that lie at the heart of young girls being cut. The clitoral head is seen as ‘haraam ki boti’; an immoral lump of flesh.

Speak to the women who have been cut and they’ll tell you how painful and dreadful sex is and how it impacts marriages and, in turn, leads to psychological trauma.

There are fundamental aspects to FGM that are violative of the Constitution. When the nine-judge bench sits down to hear this important matter, it should ponder if young girls must continue to be slayed, in the name of custom, tradition or religion. There is no telling how many were taken to the decrepit buildings, or Bohra-run hospitals. in the last nine years that the case has been crawling through different chambers of the court.

The writer is a journalist and author of the recently published book, They Will Shoot You Madam: My Life Through Conflict.

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