Female Genital Mutilation (FGM): A Bigoted Custom

written by Ankur Tyagi( LLB, LLM), Gururgram University

Abstract

FGM also known as “Female circumcision” according to a UK based research 1 is prevalent

practice in around 28 African Countries and in parts of Middle and Far East. Also in the
developed Countries such as USA, UK and Canada this practice is widespread among some of
the immigrant communities. It is performed as a religious custom among these communities. It
has no recorded health benefit but has well-documented harms to the body of respondent such as
physical, psychological and sexual health risks. The gravity of problem increases when it is
performed upon the minor girls from the age of five years, most of the times by harmful non
medical procedures including cutting, burning and scraping. Studies reveal that one in ten cases
of FGM are of most severe form. International organizations such as UN have been propagating
the prohibition of practice from the last decade and more than 27 countries in the world have
enacted proper legislation to ban this inhuman practice which includes countries such as USA,
UK, Australia and several African countries where this practice was prevalent. This paper
discusses the health risks and harms caused by FGM to respondent females and several national
and international legal instruments in place to curb this inhuman practice.

Introduction

Female Genital Mutilation or Female Circumcision (FGM/C) is called by different names in

different dialects globally, which are generally synonymous with purification or cleansing. In
Egypt it is termed as tahara, and in Sudan tabolli and bolokoli in Mali. Until 1980s the term
“Female Circumcision” or FC was used to describe this practice. This term associates the
practice to the male circumcision which is followed parallel to female circumcision in males.
Then in international literature the term “Female Genital Mutilation” or FGM became popular.
The name itself describes the damages caused by the practice. This term FGM was adopted as a
tool for policy and advocacy by human right activists. In 1990, in a meeting in Addis Ababa,
Ethiopia, the Inter-African Committee on traditional practices affecting the health of women and
Children (IAC) the term was formally adopted. Since 1994 it has been used in several united
nation conference documents such as 1994 international conference on population and
development in Cairo (Cairo Conference).2

As its name describes, the FGM is a collective term given to several different traditional
practices that involve the cutting of female Genitals. 3 The procedure is practiced on the women
of the age as early as few days after birth to as late as just prior to marriage or after first
pregnancy but generally performed on the girls of age five to twelve as rite of passage to
womanhood.4 This is generally performed by the traditional practitioners who have a family
background of traditional practitioners and more often by a women of old age. It generally
involves non-medical procedures such as cutting, burning, scratching etc. In some countries now
it is also performed by trained medical professionals such as physicians, nurses and midwives.
The practice is extremely painful and leaves a long term physical, psychological and sexual
impact on the females who are subjected to it. An extensive study in 2014 reveals that one in ten
cases of female circumcision is of very severe form and female subjected to it experiences
immediate complications such as fatal bleeding, anaemia, urinary infection etc and may
experience long term effects such as permanent disfigurement of urinary tissue. 5 The procedure
is practiced to control the sexuality of women in the veil of purity and modesty and describes the
deep rooted patriarchal mentality of male dominated society.

What is FGM/FC?

World Health Organisation (WHO) defines Female Genital Mutilation as all the procedures
which involve partial or total removal of the external female genitalia and/or injury to the female
genital organs, whether for cultural or any other non-therapeutic reasons.6 The procedures varies
from culture to culture and between different ethnic groups, but all of them generally include
removal of clitoral hood and clitoral gland, removal of inner and outer labia and closure of vulva.

The procedure is classified broadly into four types by WHO:7

Type 1: In this procedure clitoris (a small sensitive and erectile part of the female genitals) is
removed totally or partially. In few traditions only the fold of skin surrounding the clitoris is
removed. This is commonly known as clitorodectomy.
Type 2: This is commonly known as excision. In this procedure clitoris and inner fold of vulva is
removed partially or total with or without removal of outer folds of skin of vulva.

Type 3:Generally referred to as infibulation. In this procedure vaginal opening is narrowed

down through the creation of a covering seal. The seal is formed by alteration in the inner or
outer folds of vulva sometimes by stitching, with or without clitoridectomy.

Type 4: All the other harmful procedures to the female genitalia for non-medical purposes are
classified in this category such as pricking, piercing, cutting, scraping or burning the area etc.

FGM/Type 3 is generally referred to as female circumcision but it is distinctively different from

male circumcision. Type 1 and 2 are most commonly practiced throughout the world. Type 1 and
2 procedures accounts for roughly 85 percent of all FGM. Studies indicate that nine in ten cases
worldwide are Type 4 and about 10 percent are Type 3 and is common in DJIbouti, Somalia and
Sudan and in parts of Egypt, Ethiopia, Kenya, Mali, Mauritania, Niger, Nigeria and Senegal.8

The practice of FGM is not only practiced in tribal societies of Africa but also in India among
Bohra community, (a shia subsect of muslim community), where girls of age one to fifteen years
are subjected to this procedure. The study titled “The Clitoral Hood: A Contested Site” showed
that FGM exists in India among Bohra community (a shia muslim sect). Also known as Khafz in
Bohra community this practice falls under the Type 1 of FGM as classified by WHO.

Health consequences of FC/FGM

Studies reveal that FGM has no medical benefit rather it is harmful for the women who are
subjected to it in many ways. It causes both short term and long term complications. It involves
removing or damaging healthy and normal female genital tissue, and interferes with the natural
functions of girls’ or women’s bodies. Generally speaking, risks increase with increasing
severity of the procedure.9 When this extremely painful procedure is performed on girl child it
leaves a terrible physical and psychological impact on her which stays with her for life. The
physical and psychological damage on her is irreversible, irreplaceable and permanent.
Performing FGM through medical professionals also does not reduce any risk of long term
complication but in fact conveys a message of acceptance of this brutal practice.

Health consequences may be classified under the following categories:

Short-term
A study on the practice named “The Clitoral Hood A Contested Site”, commissioned by
WESPEAKOUT and Nari Samita Manch, in 2018, of FGM says that 97 percent of women who
remembered their FGM experience from childhood recall it as painful. 10 Since the procedure is
performed by traditional practitioners without a formal medical knowledge and it is performed
without anesthesia it is extremely painful. Victims claim some other short term health risks such
as excessive bleeding, swelling and inflammation in the genital area, infection, urinary problems.
In some extreme cases, even death occurs due to excessive bleeding. 11 Hence, the practice affects
the health and social development of females.

Long-term
According to a study conducted on the Women of Bohra community approximately, 33 percent
of women subjected to FGM believed that it negatively affected their private lives. Major long
term effect on their private lives were low sex drive, inability to feel sexual pleasure, difficulty
trusting sexual partners and over sensitivity in their clitoral area which were identified by several
women. Close to 10% of the women who had undergone the procedure in the current study
specifically mentioned urinary problems, recurring UTIs, burning and incontinence 12 The other
long term complications witnessed by the women included chronic genital infections, recurring
urinary tract infections, painful sexual intercourse, complications during pregnancy, labour and
delivery of the child, perinatal risks and debilitating psychological consequences like Post
traumatic Stress Disorder (PTSD) and depression.

Psychological
Many Respondents in the study conducted on FGM reported psychological impacts such as fear,
anxiety, shame, anger, depression, low-self-esteem, and/or betrayal of trust. It has both short
term and long term psychological impact on their well being. The long term psychological
consequences includes Post traumatic Stress Disorder (PTSD) and depression. The study stated
that the women subjected to FGM experienced the various dimensions of traumatic stress
symptoms and other mental health related problems. Women undergone FGM have reported the
difficulties such as problems of anxiety or low mood and some even experienced chronic illness
associated with reduced psychological well being and overall quality of life. FGM is performed
on minor girls between the age of 4 to 12 years of age which means victim can not report the
incident. Minor girls subjected to FGM suffered deep emotional damage in the relation of mother
and daughter as it signify a breach of trust.FGM denies women and girls their right to life, bodily
integrity and health and right to be free from discrimination and violence.13

Justification of practice by the followers of custom

There are various reasons why FGM is performed across the world and they vary from one
region to another and vary across the cultures & socio-cultural factors within families and
communities which justify this practice. Most communities who follow this practice associate it
with cleansing or purity. Therefore, these communities throughout the world have given this
practice a name in their regional language or dialect which are generally synonymous with
cleansing or purification.

The most common cited reasons to justify it are as follows:

 The proponents of this practice associated it with feminity and modesty. Many
communities believe that some body part of women is unclean, unfeminine and after
its removal girls become clean and beautiful.
 Until 1950s, FGM was performed in England and United States as a common
“treatment” for lesbianism, masturbation, hysteria, epilepsy and other so called
“female deviances”.14
 Most cultures associate this with religion and propagates that religious scripts
prescribe this practice whereas in reality there is no religious script which support this
practice.
 It is considered a necessary part of raising a girl. It is believed to be a way to prepare
her for adulthood and marriage. The alteration in organs is believed to increase their
marriageability.
 Some people believe a women sexuality need to be controlled. They are not allowed to
love and it is considered that right over her body belongs to her family or in-laws,
women have no right to enjoy sex, their specific body part is considered as some
 source of temptation. Hence, this practice ensures to them premarital virginity and
marital fidelity.
 In some communities it is considered a cultural practice or norm and hence is followed
as a revital movement of that tradition. People of the community derive their identity
from that culture and local authorities, religious leaders, community leaders uphold
and promote such practices.

International framework to prevent the practice

Huge efforts have been made to eliminate FGM throughout the world. Several international
organizations such as United Nations (UN) have recognized it and as a result of this in 1997,
WHO issued a joint statement against the practice of FGM together with United Nations
Children’s Fund (UNICEF) and United Nations Population Fund (UNFPA). And Since then
huge efforts have been made in this regard to provide legal framework and generate public
support to end FGM. In December 2012, the UN General Assembly adopted a resolution on the
elimination of FGM and each year February 6th is observed as the International Day of Zero
Tolerance for Female Genital Mutilation. In May 2016, WHO in collaboration with the
UNFPA-UNICEF joint programme on FGM has given guidelines to provide effective tools,
knowledge and skills for the healthcare workers in prevention and management of complications
of FGM.

Programmes and Societies

Several programmes have been launched in different countries in order to counteract FGM.
Some of them have been mentioned below:

1.) In more than 20 African countries, the Inter-African Committee on Traditional Practices
(IAC) with the partnership with several local NGOs has launched an extensive
educational campaign aimed at eliminating FGM. Women in Egypt and Sudan
recommended education as the best means to end this practice.15
2.) Various African NGOs conduct research and have launched active programs in an effort
to eradicate FGM. These are National Association of Nigerian Nurses and Midwives in
Nigeria, Maendeleo Ya Wanwake Organisation in Kenya, the National Research Network
in Senegal.
 3.) United Nation agencies (UNICEF, UNFPA, and WHO) have issued a joint position paper
which recognize FGM as a serious criminal offence. These organizations have been
working toward the eradication of FGM throughout the world. In fact WHO has launched
a 15 year action plan to advance these efforts.
4.) Education and awareness towards the harmful consequences of FGM and their legality is
being provided to African immigrants in Australia, Canada, France, United States and
United Kingdom.

International Policies and Legislation

FGM is a human rights violation of women and children who are subjected to this evil and
inhuman practice. This amounts to cruelty and violence to children and takes away from them
their “bodily integrity”.16 Several human right conventions were held in order to provide tools to
ensure health care, education and self realization to women and children throughout the world.
Some of these have been listed below along with the specific provisions provided by them to
protect human rights of women and children:

Article 3, Universal Declaration of Human Rights (hereinafter UDHR): ―Everyone has the
right to life, liberty and security of person.17

Article 6, United Nations Convention on the Rights of the Child (hereinafter UNCRC): ―1.
States Parties recognize that every child has the inherent right to life. 2. States Parties shall
ensure to the maximum extent possible the survival and development of the child.18

Article 6(1), International Covenant on Civil and Political Rights (hereinafter ICCPR): ―1.
Every human being has the inherent right to life. This right shall be protected by law. No one
shall be arbitrarily deprived of his life.19

Article 12, International Covenant on Economic, Social and Cultural Rights (hereinafter
ICESCR): ―1. The States Parties to the present Covenant recognize the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health.20

Article 5, UDHR: ―No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.21
Article 7, ICCPR: ―No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. In particular, no one shall be subjected without his free consent to
medical or scientific experimentation.22

Article 2, CEDAW states that States Parties undertake ―(f) to take all appropriate measures,
including legislation, to modify or abolish existing laws, regulations, customs and practices
which constitute discrimination against women.23

General Recommendation No. 19 of the CEDAW Committee explicitly states that gender based
violence, which impairs or nullifies the enjoyment by women of human rights and fundamental
freedoms under general international law or under human rights conventions, is discrimination
within the meaning of Article 124, thereby it brings FGM under the scope of CEDAW and, thus,
under International human rights law.

In 1990, the CEDAW Committee adopted General Recommendation No. 14 on FC, which calls
upon States to take appropriate and effective measures with a view to eradicate FGM and
requests them to provide information about measures being taken to eliminate this practice in
their reports to the Committee. The General Recommendation No. 24 of the CEDAW
Committee on Women and Health, issued in 1999, indicates that States should ensure the
enactment and effective enforcement of laws that prohibit female genital mutilation. The Joint
General Recommendation / General Comment No. 31 of the Committee on the Elimination of
Discrimination against Women and No. 18 of the Committee on the Rights of the Child on
harmful practices has indicated the role of States to undertake diligence to ensure, protect and
fulfill the rights of its citizens.

In 2015, all United Nations member States, including India, adopted the Sustainable
Development Goals which included a global target to ―Eliminate all harmful practices, such as
child, early and forced marriage and female genital mutilation.

Indian legal scenario

FGM is a violation of human right under Article 21 of Indian constitution.

Article 21 of Indian constitution provides to every Indian citizen protection of life and personal
liberty. The judicial interpretation of right to life means to include right to live with Human
dignity. Article 21 is a fundamental right guaranteed by the constitution of India. Hence, Female
genital mutilation is not only a violation of Human right of women and children but also a
violation of their fundamental right to live with dignity and without any cruelty, torture or
deformity violated by the inhuman treatment by performing FGM on them. The crucial
consideration is that a woman’s right to privacy, dignity and bodily integrity should be
respected.25

A criminal offence under Indian Penal Code, 1860 (IPC) and Prevention of Children from
Sexual Offences Act, 2012 (POCSO).

Various forms of violence against women in India are dealt within the IPC, 1860. Section 319 to
326 deals specifically with varying degree of “hurt” and “grievous hurt”. According to a report
published by WHO there are long term health complication after FGM such as injury to genital
issue, excessive bleeding, urinary problems, sexual problems etc., therefore the person who
undertakes the FGM may be prosecuted under such sections. Specifically Sections 324 and 326,
of IPC deals with “voluntarily causing hurt” and “voluntarily causing grievous hurt”.

Section 3 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act)
addresses penetrative sexual assault by any person on any child, thus it inter alia defines it as
insertion of any object into the vagina of the girl. The judicial precedents confirm that
penetration in sexual offences need not be complete penetration. In fact, it has also been
categorically stated in Explanation 1 of Section 375, IPC that the term vagina includes labia
majora i.e. the outer covering of vagina. FGM requires insertion of a sharp object into the vagina
of a child. Hence it may be covered under Section 3, POCSO Act read with Explanation 1 of
section 375 IPC. Provisions of POCSO, as per Section 42A26 has an overriding effect on any
other law time being in force in India.

Protection of human rights/fundamental rights by judicial intervention in absence of

legislation.
Supreme court can exercise its powers under Articles 3227 and 14228 of the Constitution to issue
appropriate guidelines and directions in petitions filed under Article 32 for enforcement of
fundamental rights in absence of any legislation and Supreme court has from time to time issued
directions to prevent such violations. For example,

1. Rights of working women against sexual harassment in workplaces

2. Lynching/Mob menace
3. Ragging of fresh students in educational institutions
4. Custodial violence
5. Manual Scavenging
6. Child marriage
7. Honor killings
8. Prison reforms
.
Thus, in absence of any specific legislation which prohibits the practice of FGM in India,
Hon’ble Supreme Court or High Court may declare it as illegal and violative of the
Constitutional principles and further may direct the legislature to enact effective laws to penalize
it. The Hon’ble Courts may also, frame and issue some specific guidelines to eradicate the
practice of FGM in India.

Conclusion
FGM is considered a violation of human rights of girls and women. 29 It is an act of violence that
harms women and girls in many ways limiting their potential for full development and a major
30
obstacle to the achievement of gender equality. The practice of Female genital mutilation is
less prevalent in India and also there is a lack of specific legislation in India to deal with this
practice. Evidence of FGM being performed on the girls of age 4 to 12 years in India is found
among the Dawoodi Bohra community, a subsect of Shia sect in muslims in India. Sunita
Tiwari31, an Advocate and Human Right activist recently have come forward to file an appeal in
the Supreme Court of India to seek directions and guidelines to deal with FGM in India and
recognise FGM under the Indian law. India is a signatory to various International Conventions
and is therefore is bound to make laws prohibiting FGM in its existing Penal Code or any other
separate specific legislation. The Hon’ble Court while observing the practice of manual
scavenging as inhuman, has held that the International Conventions ratified by a country have a
binding effect on that country to the extent the covenants are not inconsistent with the provisions
of the domestic law of the country concerned. 32Further, Article 5133 of the Indian Constitution
makes it obligatory on the state to endeavor to foster respect for international law and treaty
obligations in the dealings of organized peoples with one another. Hence it is an obligation on
India to recognize FGM as an offence and introduce it under the Indian criminal law. Addressing
the practice of FGM requires a holistic approach. Such an approach needs to address the various
other aspects of FGM such as propagation of practice, abetting or aiding the practice, prevention
of FGM/C, regulations on medical/health professionals who carry out this practice, duty to
report, support and rehabilitative provisions and awareness programmes.
1
Foundation for Women’s Health, Research and Development (FORWARD), A Statistical Study to Estimate the Prevalence
of Female Genital Mutilation in England and Wales, 2007
2
Cenre for Reproductive law and policy,Female Genital Mutilation: A Practical Guide to Worldwide Laws & Policies,
RAINBO; P- x
3
N. Toubia, Female genital mutilation: A call for Global Action (2nd edn), New York, 1995, p9
4
ibid
5
Berg, Rigmor C.; Underland, Vigdis (27 March 2014).Immediate health consequences of female genital mutilation/cutting
(FGM/C)
6
World Health Organization: Female Genital Mutilation: An overview. Geneva: World Health Organization; 1998
7
N. Toubia (1993), Female genital mutilation: A call for Global Action, New York: Women, Ink, p44
8
Hosken,F. (1993). The Hosken Report: Genital and Sexual Mutilaton of Females, fourth edn, Lexington, MA: Women’s
International Network
9
WHO, Female genital mutilation Fact sheet, updated February 2016.
10
Ibid
11
Ibid
12
WeSpeakOut & Nari Samata Manch, The Clitoral Hood A Contested Site, 2018, p49.
13
UNICEF 92006), Child Protection Information Sheets, pl25, New York.Rahman, A. and Toubia, N. (2000), Female
Genital Mutilation: A Guide to Laws and Policies Worldwide, pp. 20-28. London: Zed Books
14
Koso-Thomas, O, (1987), The Circumcision of women: A Strategy of Eradication, London: Dotesios Ltd.;pp.57
15
“Female Genital Cutting:Findings from Demaographic and health survey programme”.(1997), Caverton,MD;pp.9.
16
Ministry of Foreign Affairs-Danida. (1995), “Report from the seminar on Female genital mutilation”, Copenhagen; pp17.
17
Article 3, Universal Declaration of Human Rights
18
Article 6, United Nations Convention on the Rights of the Child (UNCRC)
19
Article 6(1), International Covenant on Civil and Political Rights (ICCPR)
20
Article 12, International Covenant on Economic, Social and Cultural Rights (ICESCR)
21
Article 5, UDHR
22
Article 7, ICCPR
23
Article 2, CEDAW
24
Article 1 of the Convention on the Elimination of all forms of Discrimination against Women, 1979 (CEDAW) defines
discrimination‘ as: ―any distinction, exclusion, or restriction made on the basis of sex which has the effect or purpose of
impairing or nullifying the recognition, enjoyment, or exercise by women, irrespective of their marital status, on a basis of
equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil, 44
or any other field.
25
Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1, at para 22
26
POCSO Section 42A. The provisions of this Act shall be in addition to and not in derogation of the provisions of any
other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect
on the provisions of any such law to the extent of the inconsistency
27
Article 32, Constitution Of India 1949: Remedies for enforcement of rights conferred by this Part(1)The right to move the
Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.(2) The
Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the
rights conferred by this Part.(3)Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the
powers exercisable by the Supreme Court under clause ( 2 ).(4)The right guaranteed by this article shall not be suspended
except as otherwise provided for by this Constitution

28
Article 142 ,Constitution Of India: Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc
( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for
doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be
enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by
Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe(2)Subject
to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the
territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the
discovery or production of any documents, or the investigation or punishment of any contempt of itself
29
United Nations Economic and Social Council (ECOSOC), Commission on the Status of Women. Resolution on Ending
Female Genital Mutilation, March 2007: E/CN.6/2007/L.3/Rev.1, March 2008; E/CN.6/2008/L.2/Rev.1
30
United Nations General Assembly, 61st (6 July 2006), In –Depth Study on All Forms of Violence Against Women.
Report of the Secretary General, (A/61/122/Add.i), par. 78.Pinheiro, P.s 92006) World Report on Violence Against
Children, Secretary- General’s Study on Violence Against Children. Ch. 3, pp.47-48, New York, United Nations.
31
Sunita Tiwari vs Union of India and Ors. writ petition (civil) no. 286 of 2017 SC
32
Safari Karamchari Andolan v. Union of India and Ors. (2014) 11 SCC 224, at para 16.
33
Article 51 in The Constitution Of India 1949: Promotion of international peace and security The State shall endeavour
to(a)promote international peace and security;(b) maintain just and honourable relations between nations;(c) foster respect
for international law and treaty obligations in the dealings of organised peoples with one another; and encourage settlement
of international disputes by arbitration PART IVA FUNDAMENTAL DUTIES