Female Genital Mutilation: Constitutional Morality coming to Rescue - Ms. Bhavana Dhoundiyal Kothari

When You circumcise a girl child, you affect her womanhood"- Joseph Osuigwe.

Background

Female Genital Mutilation or Circumcision is the practice of mutilating the clitoris of the female reproductive organ. To be certain, the practice involves Female genital mutilation (FGM) the procedure to deliberately cut the female genitalia, to injure or change, without any substantiating medical reason. It is also known as female circumcision or cutting, or by other terms as sunna, khatna/khafz, gudniin, halayays, tahur, etc. among other religions.

The history of circumcision rolls back to the pyramid hit structures of Egypt, littering around the social blinks of Israel then fermenting in Europe with Christians and Muslims embracing the practice in their religions. First attempted and practiced on the males and then went to spread among the masses hitting various religious denominations. The religious texts, do not talk about human sacrifice or blood as clearly as does Judaism but it all prevails in the Talmud, Hadith, Sunna Gospel of Thomas, and Torah like the water on the earth, without an unknown source of reason. Practiced as a covenant connecting God with its human, it is considered as a way of life associated with purification, both physically and spiritually. Purity was an Egyptian obsession due to a deep-seated fear of contamination and putrefaction within the body, thereby according it a place of honour as a religious and social practice.

Current Trend

As of now, the practice is widespread, it is estimated that over 200 million girls and women have been subjected to FGM. Most of them, who have been mutilated live predominately in sub-Saharan Africa and the Arab States, but FGM is also practiced in select countries in 27 African countries, Indonesia, Iraqi Kurdistan and Yemen, Asia, Eritrea, Europe, North America, Australia and New Zealand[2]. FGM in India is practiced by some Islamic groups, the procedure is performed on girls between the age groups of seven years to fifteen years old, by partial or total removal of the clitoral hood. The consequences being causing them discomfort and exposing them to several diseases at a very young age. It is a clear violation of humanity &the human rights standards.

AOR Indira Jaising through a lawyer's collective in 2012, has engrossed our attention towards the penalization of the offence, which was initiated by France in the 18th century. In 2018, the issue was addressed to the Government of India, to frame new laws curbing FGM in India, however, it was suggested there were existing laws such as POCSO and criminal laws that can be invoked to curb the practice, although Masooma Ranalvi, the Petitioner[3] urged the Government to prepare a policy with detailed guidelines to prevent FGM/C.

A detailed study revealed, where talking Sex is a taboo topic, 75% of daughters, as per the study samples have been subjected to circumcision in India and it has brought tremors to their sexual life. Female Right to Sexual Desires The joy of life comes out in living one's desires. A female would like to live her life to the fullest and that does involve the right to feel sexual pleasure, the right to feel the feminine woman in herself by embracing her womanhood in an actual possible way. Cutting or mutilating the clitoris is a sin. Sin because it takes away the right of the woman to feel the greatest pleasure of human birth. It is said that the unmutilated female vulva frightens men and destroy crops when erect, the clitoris is said to challenge the male authority, therefore, it must be destroyed. In other words, such religious norms, give much room for patriarchal sexual authority over female sexual autonomy even in a closed room. The fact is that without the clitoris and other sexual organs, a woman can never see herself reflected in the healthy, intact body of another. Her sexual vision is impaired and the idea of feeling all the delight in one go is absolved. For now, being cut, she never will be whole to herself, because as humans, we all like to be complete and loved in entirety. Mutilation of any part of the body is abjection, it causes suffering beyond imagination[4]. The practice is done to control the sexuality of the young girls and women so that they stay chaste and loyal although Sexual Intercourse only gives agony and staying unmutilated amounts to "barrenness", even a prostitute. Constitutional Morality Comes to the Rescue

Ambedkar, the architect of the Constitution of India vocalized the phrase "Constitutional Morality" as a paramount reverence for the forms of the Constitution of India. It is the idea of true realization about abiding by the morals and ideals of the Constitution of India, which talks about equality, reasonableness, fairness, and non-arbitrariness not expressly mentioned, but impliedly run as undercurrents interlinking the entire fabric of fundamental rights[5] surfacing the fact that such practices which desire to live in the name of norms of social morality will not be given preference over Constitutional Morality, indeed the answer to every gap or disparity in the society and if there exists any discrepancy between the unreasonable societal norms and constitutional ethics, then it is the constitution and its values which will prevail.

Public Interest Litigation initiated by Ms. Sunita Tiwari surfacing around Art. 14 (Equality before Law) and Art. 21(Protection of Life and Personal Liberty) sought a complete ban on FGM, however, the DBWRF[6] stated that Khatna or Khafz is a part of their essential religious practice and they have a right to practice and propagate their religion under Art. 25 and Art. 26 of the Constitution of India. The Living document guarantees the rights of an individual, but remember, it will never operate as a vague document giving higher denotation to a social norm that is likely to deplete Art. 21 jeweled with the right to personal liberty that relates to the sexual autonomy of a woman, of her right to feel what she desires.

Conclusion

As rephrased by Justice Chandrachud in his Sabrimala Judgement, the Constitution has a transformative character so that hitherto deprived and marginalized citizen can enjoy their citizenship rights. It took decades to bring women with the mainstream population, let's not make it a century to liberate them from their taboos. Therefore, when pandemic ends, India awaits a series of decisions, questioning the larger bench being invoked to apprehend the illicit societal norms breeding under the Umbrella of Art. 25, What will sustain? Will the horizons of Constitutional Morality expand thereby embellishing the vision of our draftsman, Dr. Ambedkar, making it see the light of the day, or would it capitulate itself shouldered by political might giving effect to superficial societal might?

International standards have been framed and the Municipal Laws are said to be in sync with the same, but now it is time to show the exit doors to the taboos breathing in India, just like the pandemic.

Reference:

[2]https://www.unfpa.org/female-genital-mutilation.

[3] Sunita Tiwari v. Union of India, (W.P. (C) No.286/2017).

[4] Alice Walker & Pratibha Parma, Warrior Marks, pg. 18-20, 1993.

[5] Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors (2017 SC).

[6] Dawoodi Bohra Women For Religious Freedom