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Religious Subjugation on Bodily Autonomy: A Jurisprudential Analysis on the Practice of Female Genital Mutilation within Islam and Prospects for Reforms

by Liya Fathima and K.S. Ganeshan

Religious Subjugation on Bodily Autonomy: A Jurisprudential Analysis on the Practice of Female Genital Mutilation within Islam and Prospects for Reforms

Table of Contents

Introduction

Religion has influenced societies with varying levels of impact across different timelines. Like any other influential body, religion has its fair share of positive and negative consequences. The positive impacts posed by religion are rather well-known and require no further marketing.

However, what many remain blissfully unaware of, even to this day, are the negative impacts it poses on those sections of society that are generally weak and unable to represent themselves in the hierarchy of importance established in such societies. The all-encompassing tenets of faith often lead many to embrace it mindlessly, often inconsiderate of how uncontrolled fanaticism can impact others.

The rich history of Islamic jurisprudence encompasses a framework of global laws that govern Muslim lives. Rooted in the Quran’s timeless teachings and Prophet Muhammad’s actions, Sharia laws have evolved by studying revered sources. As God’s divine word, the Quran is the primary and most authoritative source. Various Islamic scholars’ interpretations of the same form the base of the same and are thus relied upon heavily. Various perspectives of the religion illustrate that Islam encompasses multiple viewpoints and attitudes towards human rights, paving the way for different practices made available to men and women. Though the interpretations vary across timelines and countries, certain controversial and inhumane practices still exist in the name of this religion. Centuries upholding the patriarchy have contributed to numerous inhumane practices targeting Muslim women.

This essay will explore a troubling religious practice perpetuated by patriarchal norms that sadly continues to exist globally even today- Female Genital Mutilation (FGM). The practice continues to flourish in parts of the world despite it being a major human rights violation, and this essay will explore the issue, followed by an analysis of measures taken by law-making and law-enforcement bodies in India and abroad to ensure the prevention of the same.

Female Genital Mutilation – What is it?

The World Health Organisation defines the act of Female Genital Mutilation as “all the procedures that involve partial or total removal of the external female genitalia or other injuries to the female genital organs for non-medical reasons.”

The Dawoodi Bohra Muslim community spreads over parts of the United States, Australia, and the western cities of India, Pakistan, East Africa, and Yemen. This particular community is notorious for it’s devout practice of the practice of  FGM. A few translations of the Quran advice the community to draw a simple cut in the woman’s clitoral skin, and they perform FGM under the pretext of adhering to the said preaching.

The ulterior motive of this practice is to curb sexual urges and protect women’s purity, as the clitorial hood is referred to as “haram ki boti“, which roughly translates to “an impure knot of skin that brings forth sexual desires in a woman”. This unwanted, unhygienic act has been practised in this community to keep women subservient to men through centuries of cultural conditioning. However, unlike male circumcision, female genital mutilation is accompanied by several medical complications, including excessive bleeding, swelling of the genital tissue, infection, vaginal and urinary tract problems, and even death.

Forcefully performed by unprofessional midwives on young girls merely seven years of age in dingy and dark rooms devoid of anaesthesia, this callous practice is described to be done during a period where their consent is nebulous, unethical and impossible owing to their incomprehensibility due to that age.  This terrible practice, which is allegedly done for  religious and hygiene purposes brings with it lifelong consequences, including negative sexual experiences and adverse alteration in a victim’s body, often scarring her for life. Studies reveal that female genital mutilation has affected 87% of women’s sex lives negatively, developing reduced sensation and psychological trauma during sexual contact.

UNICEF Data reveals that nearly 200 million women alive today have been subject to this inhumane procedure. While the National Crime Records Bureau (NCRB) contend that the prevalence of FGM or “khafz” is zero in the country, a few survivor-led movements have proven otherwise.

Current Legal Status and Disputes surrounding FGM

The imposition of khafz on females is deficient in its authenticity as the religion has not mandated this practice in any way and is solely derived from various religious scholars’ interpretations of the texts.  This issue has been considered in India alongside various other matters pertaining to discriminatory religious practices. Calls for regulating this practice have been loud in the past decade due to its severity, which lays out multiple consequences, including the death of many women and children.

India was recently under the UN’s radar for this inhumane practice at the Universal Periodic Review of Human Rights at the 41st United Nations Human Rights Council (UNHRC) session, where the country was urged to take urgent action against this.A petition has also been presented to the United Nations to include Asia in its sustainable development goals to urge the elimination of FGM by 2030.

A Public Interest Litigation (PIL) was filed in 2017 in the Supreme Court by Sunita Tiwari, a Human Rights activist, to eradicate this practice from this country against Dawoodi Bohra Women for Religious Freedom (DBWRF). The PIL contended that the practice violated women’s constitutionally guaranteed right to equality under Article 14, protection against gender-based discrimination under Article 15 and right to life and privacy under Article 21. The PIL was backed by the argument that this practice had no religious sanction as per Quran. However, the defendants, the Dawoodi Bohra Women for Religious Freedom (DBWRF), which are also backed by a group of medical professionals belonging to the Bohra community, who buttress this contention stating that this practice is carried out as per religious beliefs and also claim that there are minimal adverse effects from the same. Moreover, the community believes their rights are protected under Articles 25 and 26 of the Constitution of India, which guarantees every citizen the right to practice and propagate their religion. These rights allow the dissemination of one’s religious beliefs to others or the exposition of the tenets of one’s religion.

Part III of the Constitution provides endorsement to freedom of religion in India. This freedom is not limited to just Indian citizens but extends to anyone who resides in India.  It is abundantly clear from the words of Article 25, which states that “Subject to public order, morality and health and the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.” Even though the Indian state is empowered to regulate matters incidental to religion or secular activities associated with religious practices, the state is not permitted to interfere with religious matters as such. These rights allow the dissemination of one’s religious beliefs to others or the exposition of the tenets of one’s religion. Therefore, the community asserts that their rights are protected under Articles 25 and 26 of the Constitution of India. This empowers them to go forth with this barbaric practice under the pretence that it will be covered under the Constitution as the state, under this article, can only regulate the activities of an economic, commercial or political character. Though empowered to curb practices against morality and health, the Constitution has yet to bring forth a provision that successfully penalizes the act. The Indian Penal Code of 1860, however, does not recognize this practice as a crime, but if a complaint is filed, the court can take cognizance under Section 326, which talks about causing grievous hurt.

Possibility of Reforms through introduction of UCC

This issue has been considered in India alongside various other matters pertaining to discriminatory religious practices. Calls for regulating this practice have been loud in the past decade due to its severity, which lays out multiple consequences, including the death of many women and children.

Every religion adhering to their personal laws, combined with the tendency of Indian courts to have a  rather narrow interpretation of the provisions of the Constitution of India when it comes to matters regarding minorities makes reforms in terms of FGM close to impossible. Such scenarios provide further backing for why a Uniform Civil Code would benefit the legal fabric of the nation. The UCC has always been an inactive provision under Article 44which was placed in the Directive Principles of State Policy considering the complexity of this provision.

UCC Activists have argued that the statute would help curb such discriminatory, allegedly religious practices against women. The arguments were strong enough to bring the UCC into relevance recently, when the 22nd Law Commission sought opinions from various religious scholars across the nation in order to make efforts towards fostering women’s rights and bodily autonomy.

Unfortunately, this barbaric practice continues to persist despite ongoing reforms and development efforts. This can be attributed to the community’s traditions that have been deeply rooted in patriarchy, which has continually sought to force women into pre-defined patriarchal moulds.

  1. B.A LL.B (Hons.), 4th year, The National University of Advanced Legal Studies, NUALS, Kochi

  2. B.A LL.B (Hons.), 4th year, The National University of Advanced Legal Studies, NUALS, Kochi

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