By Ananya Mago
[Ananya Mago is a II year student of B.A. L.L.B. (Hons.) at University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University, New Delhi.]
On 2 May 2020, in a move that was unfortunately nothing short of historic, Sudan criminalized female genital mutilation, or as is preferred by activists and survivors, female genital cutting (“FGC”). FGC is a cruel by-product of regressive ideas of chastity, virginity, and purity—misconceptions about a woman’s sexual pleasure, and greatest of all, misconceptions about a woman’s “sexual duties”. FGC has been a terrifying reality for women in as many as 31 countries, with at least 200 million women having had to undergo the procedure. Horrifyingly still, another 30 million girls are at risk of being cut every year. FGC causes immense physical damage severe bleeding and problems in urination, cysts, infections, complications in childbirth, and increased risk of new-born deaths. The concern that plagues Sudanese activists is that implementing the punitive checks will remain an ordeal unless there is a deliberate shift in discussions surrounding women’s sexual and reproductive health in Sudanese jurisprudence.
In the background of such heart-wrenching discord, one is forced to turn to the motherland, not entirely unfamiliar with violence against women, and its faulty—if not downright atrocious—jurisprudence. The following article seeks to explore the existence of FGC in India as well as the basis for the silence exhibited by the Courts in this regard.
A Glance at Indian Jurisprudence
The Indian legal outlook on FGC is undetermined, primarily because its existence is barely acknowledged due to a lack of “official” data Precedents are few, owing to the nature of the subject matter—a sacrifice demanded of women, backed by religion and culture, which they must keep to themselves in order to preserve their ‘honour’. Based in religious custom, the practice is common amongst the Dawoodi Bohra community and is practised as a form of female circumcision, which is believed to curtail the pleasure of a woman and help her better please her husband during intercourse. Female genital “circumcision” is a myth, which only seeks to reinforce the patriarchally-mandated “sexual duties” imposed on women. The practice must be rightfully referred to as female genital cutting, as the term ‘cutting’ differentiates the procedure from male circumcision and stresses its severity. Women do not require circumcision, all FGC does is inflict physical and mental harm on women, thus completely degrading their bodily integrity and autonomy. Survivors of FGC have recounted in graphic detail the horror of back-room surgeries and their resounding cries of resistance. Yet, the most that the State has responded with is a casual slap on the wrist asking the concerned community to put an end to the practice voluntarily before the State intercedes.
Article 14 of the Indian Constitution prohibits discriminatory behaviour against an individual on the basis of sex. Article 25(2) prohibits non-essential religious practices owing to moral and health-related subjectivity. Sections 319 and 326 of the Indian Penal Code penalize the causing of hurt and grievous hurt. Section 354 criminalizes assault on women with the intent to outrage her modesty—an exclusive section on sexual violence. Section 509 criminalizes insult to the modesty of a woman. Section 3 of the Protection of Children from Sexual Offences Act, criminalizes vaginal penetration, whether complete or partial. Evidently, there seems to be no dearth of legislation in India to protect women from violence.
Moreover, the Supreme Court of India has recognized international resolutions and conventions although only to the extent that is specific to the facts of a particular case. The Court has acknowledged and condemned the act of violence particular to the case filed and , stopped short of taking a firm stand against all forms of sexual violence enlisted by UN, including but not limited to FGC. The Supreme Court has said in one voice that rape amounts to a grave transgression on one’s right to life with dignity. It has held that the phrase “violence against a woman” is to be construed liberally and identified FGC to be an extension of such violence. Thus, in accordance with the very definition provided by the law and the Courts, a crime against a woman of such an inherently sexual nature, and with evident sexual motivations, must be treated as an extension of rape and sexual violence. However, the criminalization of FGC by the standards of the Indian Penal Code remains a matter of debate in the Indian courts.
As of 2020, the Supreme Court has but once expressly discussed the criminalisation of FGC, in a Writ Petition heard before a 3-judge bench in 2018. Even at first blush, skepticism creeps in due to the use of the word “controversy” by the Court vis-à-vis FGC’s criminalisation. Senior Advocate A.M. Singhvi argued extensively on the essential character of the practice, calling it a misnomer, and made an especially bold claim—that the seemingly essential practice was free from any social imposition. The half-page Order of the Apex Court placed the issue before a larger Bench. This precedent was used in the following years to defend the Supreme Court’s inability to decide the questions FGC raises on essential religious practices, and to defer the issue to later dates and larger Benches. This is despite the fact that FGC survivors have insisted that the issue is a cultural one. It is evident that the plight of the victim of a sexual offence seemingly justified by religion, or even culture for that matter, has hardly been addressed on a priority basis. High Courts trail behind, loosely echoing—if at all—international conventions and the feeble stances of the Supreme Court.[I]
Plus ça change…
In light of the aforementioned, it is imperative to examine the underlying cause of this discrepancy—how can courts be so inert while seemingly expressing concern towards the issue at hand? Owing to the nature of sexual violence of the likes of FGC, that finds its basis and justifications in ideas of consent and bodily autonomy ingrained in religion and custom, the State is largely hesitant to venture into what it deems precarious territory.
What is required from the State is that it must address the various forms of sexual violence that women are subjected to—this cannot and must not be done through the futile activity of precise classification of each specific act, which compels the Courts to explore the same question of consent again and again, just contorted into different forms. This introduces inconsistencies and prolongs litigation. Rape cases only account for 12% of the offences committed against women, and even for rape, the conviction rate is only 25%. To bring consistency to judicial precedents on sexual violence, the Supreme Court must formulate and nurture a concrete stance on informed consent, because sexual violence is based in perversions of consent. The psychological aspect of such kinds of sexual violence can also be related to the concept of “psychological assault”, a purposeful robbery of consent usually seen as too “passive” to require intervention. Quoting Rosanna Brunwin’s eloquent essay is apropos at this juncture—“For the judiciary to interpret the law correctly, and for juries to have adequate direction, meticulously defining consent is fundamental.” There is a reason that there exists immense social stigma attached to being a survivor of sexual violence. This stigma has caused a proliferation of unreported cases, cases where the survivor has been murdered, married off to the rapist, black-mailed, or rendered disabled. It is safe to say, the Indian Supreme Court does not quite realise the nature of the act of FGC, or the urgency of the matter.
The Future is Inevitable
However, not all is beyond hope, as long as the discussion persists. Sahiyo, an NGO created in light of growing concern for FGC-related decline in sexual and reproductive health of survivors, documents the socio-cultural origin and meaning of the practice and advocates for progressive policies that quash unfounded and dangerous conservative beliefs pertaining to virginty, purity, and chastity. Sahiyo addresses and debunks these misconceptions, and brings to light the narratives of the women within the community. In doing so, they step aside from their positions of privilege to let the women affected voice their dissent. This concept of positionality evades even the Supreme Court to date.
Another notable piece of academia in this regard is a manual conceptualised by renowned advocate Indira Jaisingh and materialised by Lawyers Collective Women’s Rights Initiative (LCWRI) and Speak Out on FGC. It speaks extensively on what remains a taboo matter of discussion in Indian courts, again initiated by survivors of the practice itself. It expounds upon the practice of FGC as a form of physical violence as well as a form of mental and psychological disability, thus bringing nuance to the discussion. The manual further discusses social repercussions and stigmatisation, and proposes future course of action—legal and jurisprudential—to eliminate FGC.
Regardless of these achievements, real change comes from a change in governance, because the State machinery in unparalleled in power. The way forward entails more than a superficial effort on the part of the judiciary to rectify what centuries of oppression have brought on us—an effort not merely confined by religion or culture when it’s convenient, and secularism when it’s not. The history of human rights movements is a testament to the unwavering nature of human struggle—its tremendous capability of surviving oppression—religious, systemic, or otherwise. This capability far surpasses the expectations of oppressive systems, and sooner or later, bears the sweet fruit of change.
[i]Gyanesh Shukla v. Chancellor, 2019 SCC OnLine All 4240;
Hans Raj Chauhan v. State of Haryana, Civil Writ Petition No.13395 of 2012;
Pragati Varghese v. Cyril George Varghese, 1997 SCC OnLine Bom 184;
Usha Badri Poonawalla v. K. Kurian Babu, 2002 SCC OnLine Bom 19.