Recently, Sudan criminalized female genital mutilation. An amendment was made to Sudan's criminal code, which imposes a fine and imprisonment for 3 years against any violators. Female genital mutilation (FGM) is the partial or total removal of external female genitalia or any injury to the female genital organs for non-medical reasons. FGM also harms the health of women both in the short and long term as it can cause severe pain, excessive bleeding, and genital tissue swelling, urinary problems in the short term and vaginal, sexual, menstrual, psychological problems with increased risks of childbirth complications in the long term. FGM is mostly carried out on minors and hence also violates Children's rights. World Health Organization has also recognized FGM as a violation of the human rights of girls and women. This article aims to look at the Sudan experience and how India could learn from the same.
Sudan has one of the highest rates of FGM in the world. 87% of Sudanese women have undergone the practice and are usually subjected to it at a tender age of 5-14. While there are no customary laws relating to FGM in Sudan, some religious leaders support Sunna circumcision (which includes the partial or total removal of the clitoris) claiming that criminalizing FGM would be against Sharia. This had been a clear obstacle in the passing of comprehensive legislation against FGM in Sudan. In 2016, religious conservatives opposed Mr. al-Bashir's efforts to introduce a national law banning FGM. Despite that, the transitional government that replaced him has successfully criminalized FGM. Additionally, Nasr-al-Din Mufreh who is the minister of religious affairs attended a ceremony that marked International Day of Zero Tolerance for Female Genital Mutilation. "It is a practice that time, place, history and science have shown to be outdated," he said, adding that it had no justification in Islam and that he supported the campaigners' goal of eliminating the practice from Sudan by 2030.
While the legal framework of Sudan did not explicitly prohibit the practice of FGM, it did prohibit "Harmful Practices". The national legislation did not until recently criminalize the performance of FGM/ the procurement, arrangement, and/or assistance of acts of FGM and the participation of medical professionals in acts of FGM. However, there were laws that criminalized actions leading to "wound (Section 138)" and "hurt (Section 142)" under the Criminal Act 1991 and Child Act 2010 that protects children (under 18 years of age) from all forms of violence, harm, and physical and psychological abuse. Additionally, the Constitution of the Republic of Sudan 2005 (amended in 2007) places various other obligations on the state to protect women and children (Article 12(2), 28,32, and 33). Multiple Sections in the penal code and articles in the constitution mentioned above thereby indirectly prohibited FGM. However, there was a need for the explicit criminalization of FGM since it continued despite the aforesaid provisions. Hence, the criminalization of FGM can be seen as a historically important step towards gender equality in one of the most conservative nations.
Female Genital Mutilation in India has been a topic of debate more or less on the same grounds. Even though there is no data by The National Crime Records Bureau (NCRB) for FGM in India, WeSpeakOut, a survivor-led movement to end FGM, has released a report that highlights the extent to which Khafz (FGM) prevails in India. The report reflects that 75% of the respondents (mainly Bohra women) have been subjected to FGM. 97% of the women who remembered claimed the procedure painful and traumatizing. The report remains to be the most comprehensive study on FGM so far. FGM was questioned in the Supreme Court through a PIL praying for the practice of Female Genital Mutilation (FGM) to be declared unconstitutional. The petition contends the practice to be inhuman, and hazardous to the well-being of girls and women of the Bohra Community and in violation of article 14 and 21 as the constitution gives every child and woman right to live with dignity, honor and without any deformity caused upon them by the others.
The PIL witnessed positive feminist remarks in its first hearing wherein it was noted by Justice Dipak Misra that the practice violates article 21. Further Justice D. Y. Chandrachud added as to how the practice infringes the fundamental right to privacy by stating "one has supreme authority over genitalia...it is central to one's identity, dignity and autonomy...". It was argued that the practice even if not criminalized, attracts the provisions of the IPC such as hurt (Section 319), grievous hurt (Section 320). The hearing further noted the practice to be in violation not only of the provisions of the IPC but also of the POSCO Act; wherein it was argued that something that is declared criminal couldn't be an "essential practice". The argument against the banning of the practice was it violating Article 25 (freedom of religion) and the practice being an "essential" practice. However; there is no mention of FGM (or any such practice) in the Quran.
The fact that FGM is practiced in non-Muslim societies in Africa and Christians, Muslims and Animists alike in different parts of the world can help one conclude it to be a customary practice rather than a religious practice. Furthermore, Bohra authorities from around the world where FGM is banned have issued letters stating, "All parents and guardians are hereby directed in the strictest terms not to carry out khafz under any circumstances." Further, Syedna Fakhruddin, a Dawoodi Bohra leader, has condemned FGM and called it "un-Islamic". These kinds of statements prove the stance on the practice not being "essential" but "customary". Egypt; the country that Bohras trace their ancestry to banned the practice long back. Hence, the argument of it being an essential practice holds very little weight. Another argument against the banning of the practice was the comparison of FGM with male circumcision, which is not declared illegal. However, there is enough evidence to support that FGM and male circumcision cannot be compared as equal, as male circumcision does not affect the well being of health, unlike FGM.
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(The author is a student of O.P Jindal Global Law School and has a keen interest in women's rights and constitutional law.)