Today. the Supreme Court bench headed by CJI Dipak Mishra, Justice Chardrachud and Justice Khanwilkar referred the Female Genital Mutilation case to a constitution bench.
WeSpeakOut, an NGO of survivors of FGM, are hugely disappointed with the decision as it will now mean more delay in getting a verdict on the matter which involves the cutting of the genitals of a girl child for non-medical reasons.
Expressing their disappointment, Masooma Ranalvi, founder of WeSpeakOut said “What is shocking is the clear volte face by the AG Venugopal, who on previous occasions, had said in the courtroom that he supported the petitioner and that the act of FGM is clearly a crime under Indian laws. Today, the AG supported the plea of the Dawoodi Bohra Women’s Association for Religious Freedom (DBWRF) , the group which is petitioning for the continuance of the practice of FGM, for a Constitution Bench which will decide on the issue of religious rights and freedom.”
The referral is an attempt to re-frame the issue from one of FGM being a violation of constitutional and human rights to that of a right to continue this discriminatory practice under the garb of religious freedom. It is also clearly aimed at delaying a verdict in this case, in which arguments had already been extensively heard by the three-judge bench before which it was pending.
FGM/khafz has been practiced for hundreds of years in the Bohra community in India in complete secrecy. The procedure involves the cutting of the clitoral hood and sometimes the clitoris of a girl child at the age of 7. The underlying reason behind this practice is the belief that this is “ haram ki boti”, a sinful lump of flesh which needs to cut out so that the girl does not become promiscuous and indulge in pre-marital and extra-marital sex.
World over, there are campaigns to end this practice which is viewed as a human rights violation, with over 59 countries having strong legislation against the practice. In India, the practice was a well-kept secret and has become public knowledge only after some survivors came out in public with their stories of mutilation and the harm caused by it.
Recently 25 representatives from the global anti-FGM movement, and UN agencies recently came together to discuss the actions needed to eliminate this harmful practice by 2030, in line with the UN Sustainable Development Goals, at a roundtable organized by WeSpeakOut and Equality Now.
In a joint statement participants concluded:
FGM is a violation of the human rights of women and girls, under both international law and the Indian constitution.... It has no health benefits, and in fact, often has both short-term and long-term health and psychological consequences.
Highlighting the need for protection of young girls, they stated it is the Indian Government's responsibility to ensure instances of FGM/Khafz are prosecuted, under existing criminal laws.
The Government’s Minister of Women and Child Development had, in a statement to the media last year, clearly stated that FGM is a crime under Indian laws. Yet there is no visible and concrete action by the government to stop or prevent this practice.
Last week, Prime Minister Modi met with the Syedna, the head of the Dawoodi Bohra community, who is openly promoting and propagating the practice of FGM.
The question which comes to our mind then is: is the Bohra beti not important? And should a practice like FGM be allowed to continue? Why has the PM, who says he is so concerned about issues of Muslim women, not raised the issue of FGM with the Syedna? And why has his government chosen to dither and delay any action aimed at banning this practice, rather than taking immediate steps to protect the young girls who are being cut every day?
The recent SC judgement on article 377 took 17 long years before it legalised homosexual sex and upheld the constitutional rights of the LGBTQ community. We hope that we do not have to wait so long for a positive judgement on eliminating FGM. Because with each passing day more and more small girls will continue to be subject to the cutting of their genitals till then.