[Deeksha Sharma and Kratik Indurkhya, students of Dr. Ram Manohar Lohiya National Law University, Lucknow, write about Female Genital Mutilation and how the religious affairs interfere with putting an end to the same.]
Is the abolition of female genital mutilation (‘FGM’) another textbook feminist issue or does it merit a human rights violation perspective? Do religious crudeness and ignorance act as barriers to stamp out this practice in India? Should we continue to avoid doing anything about it on the grounds that it is a sensitive, religious issue beyond the realm of the judiciary and the Parliament? This article attempts to deal with all such questions about FGM. In India, it is practised by the Dawoodi Bohra community and according to them, FGM is a pre-requisite for a woman to be truly female. But there is no valid basis for the belief that the procedure was advocated or approved by Mohammed, nor can it be considered as an essential part of the Islamic faith to that end. Hence, the research analyses the sources of Islam and substantiates that a barbaric cultural practice with a religious mask should not get protection under Article 25 of the Constitution. FGM causes bodily degradation, violating Article 21 of the Constitution. Additionally, FGM is classified as a “usage” and should be held void under Article 13 to the extent it violates the fundamental rights. However, whilst there is a violation of a number of human and gender rights, both in the international and national legal framework, in reality, there has been no comprehensive study of the epidemiology of FGM in India, and thus no reliable statistics are available on the number of girls mutilated. Keeping in mind the “protective discrimination” under Article 15(3), “reasonable classification” under Article 14 and the apex court’s discretionary power under Article 142, some propositions have been recommended.