Dhruv Singhal

The unscientific and anachronistic practice of khatna, practised by the Dawoodi Bohra community in India is against the right to privacy, bodily autonomy, dignity, and equality, and must be struck down by the Court and dealt with by the legislature.

Recently, at the 41^st session of the United Nations Human Rights Council’s Universal Periodic Review (UPR), in Geneva where the human rights records of fourteen states, including India, were being examined, the diplomatic mission of the Central American country, Costa Rica recommended the Indian government to criminalize as well as formulate a national plan for the eradication of Female Genital Mutilation (“FGM”).

The World Health Organization (“WHO”) defines FGM as inclusive of all procedures that involve partial or total removal of the external female genitalia, or other injuries to the female genital organs for non-medical reasons.

In India, khatna, or khafz, or female circumcision is most prominently practised by the Dawoodi Bohra community which is a sect within the Shia sect of Islam. This practice involves the ritual removal of either a part of or the entire clitoral hood. While no record of the same exists with the Ministry of Woman and Child Development, many women from the community itself have raised their voices against the practice.

A human rights advocate, Sunita Tiwari filed a writ petition [WP (C) No. 286/2017] against this practice arguing that it is unconstitutional. A counter-affidavit filed questioned the reasoning of this stand. Due to the multifarious issues intertwined with the criticality of the subject for the religious sect, the matter was referred to a larger five-judge Constitution Bench in 2018. While no questions were framed for it, the Bench was to consider the issue from all perspectives and determine the constitutionality of khatna.

As of December 2022, the petition is still pending with the Supreme Court, as the surgery which has no scientific sanction but a religious mandate continues to be performed on little girls without their consent.

While different reports and papers have discussed the issue, this article seeks to examine the legal issues that have been brought out in the hearing of the matter and look at FGM exclusively from a constitutional perspective. First, this essay argues that FGM contravenes the right to privacy and bodily autonomy of women. Second, it refutes the unreasonable parallels of khatna drawn with the Hindu practice of mundan and male circumcision in Islam and goes on to argue that it is violative of the egalitarian principles in the Indian Constitution. Third, it argues that khatna would squarely fall within the definition of FGM. Fourth, it takes up the argument as to whether khatna can be protected as an essential religious practice under Article 25. It ends by looking at the existing and possible legal framework for dealing with FGM and some international inspirations India can look up to. 

The Right to Privacy and Bodily Autonomy

First, we need to consider whether the practice of khatna violates the right to privacy and bodily autonomy of the girls on whom the procedure is performed.

In Kharak Singh v. State of Uttar Pradesh (1962), the Court had held that the right to live under Article 21 is not mere animal existence, but is much beyond physical survival, and mandated that domiciliary visits by police officials were unconstitutional. While the Court fell short of giving the right to privacy constitutional authority, it set the stage for the same.

K. S. Puttaswamy v. Union of India (2017) filled this gap by enshrining the right to privacy as a fundamental right. The Supreme Court, in this case, noted:

“The best decisions on how life should be lived are entrusted to the individual… The duty of the state is to safeguard the ability to take decisions – the autonomy of the individual – and not to dictate those decisions.” (¶106)

Justice Chandrachud, in the plurality opinion, cites the various dimensions of privacy, of which decisional autonomy is an important component. An individual’s capacity to make decisions about their sexual or reproductive behaviour and their decisions regarding intimate relationships reflects their decisional privacy.

Another pertinent case concerning bodily and reproductive autonomy is Suchita Srivastava v Chandigarh Administration (2009), where the High Court directed that the pregnancy of a woman alleged to have been raped in a government welfare facility be terminated. Under the Medical Termination of Pregnancy Act of 1971, consent for abortion was to be taken from a woman who was a major and was not a “mentally-ill person.” But the pregnant woman, who was willing to bear the child, was found to be of “mild to moderate mental retardation.” Chief Justice Balakrishnan, speaking for the Supreme Court bench, noted that:

“There is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India… The crucial consideration is that a woman’s right to privacy, dignity. and bodily integrity should be respected.” (¶11)

Thus, noting the difference between mental illness and mental retardation, the Court held that the State was bound to respect the personal bodily autonomy of a woman. Several High Court judgments in similar cases have recognized the importance of the right to privacy, dignity, and bodily autonomy as a part of the scheme of Article 21.

To sum up, if the right to privacy concerns the recognition of the individual’s sovereignty (over her body), decisional autonomy would involve the exercise of this right against the capriciousness of “legislative” or “popular morality.” (This has also been recognized by the Supreme Court in Navtej Singh Johar v. Union of India)

The practice of khatna is effectually non-consensual in nature and deprives a woman of the decisional autonomy as to whether she wants to undergo a procedure that is highly consequential. It is notable that the surgery can lead to urinary or vaginal complications, which are often accompanied by the psychological trauma of losing the trust of a loved one – who took the decision, or even post-traumatic stress disorder.

A report called ‘The Clitoral Hood – A Contested Site’, commissioned by WeSpeakOut & Nari Samata Manch highlighted the seriousness of the situation: the daughters of about 75% of the respondents in the sample taken were subjected to FMG. It further, demonstrated that about 33% of the women who underwent “khafz” claimed that it had a detrimental impact on their sexual lives. After having undergone FGM, many victims suffered fear, stress, depression, and low self-esteem.

Therefore, we can reasonably argue that the procedure of khatna is violative of the right to privacy and bodily integrity enshrined under Article 21 of the Constitution.

Child’s Right to Privacy

One of the questions before the Bench was whether a child would have the same rights protecting individual privacy and bodily autonomy as the adult, considering the several instances a parent or guardian makes decisions for their children. For example, in Hindu households, the practice of mundan or the act of shaving a baby’s first hair is prevalent.

But we need to consider the fact that the Indian Constitution does not envisage any additional restrictions on the Fundamental Rights based on the age of the person (majority or minority), and further, unlike mundan, female genital mutilation involves an irreversible intervention that has lasting physical and psychological consequences for the girl even in adulthood and also violates her decisional autonomy (which, as established, is part of the rights guaranteed under Article 21).

Comparison with Male Circumcision and the Right to Equality

The respondents to the case have cited the example of male circumcision, which all followers of the Islamic faith are to undergo, and argued that a selective ban on khatna or female circumcision would lead to a violation of the egalitarian principles under Articles 14 and 15.

The argument aims to obfuscate the matter further. At the outset, a law banning khatna would make an unreasonable classification between the two sexes which constitute “like classes,” but one has to confront the fact that circumcision has different physiological implications for both men and women. So, they cannot be equated as like classes in such a case.

Moreover, it is to be considered that Article 15(3) of the Constitution allows the state to make “any special provision for women and children.” It might be argued that as in Anuj Garg v. Hotel Association of India, not all such special provisions may be justified. In that case, for instance, a statute’s provision prohibiting the employment of women in any liquor-serving place (like a hotel, bar or restaurant) was struck down because it perpetuated gender-based stereotypes. But as Gautam Bhatia argues, there is a difference between statutes that are based on stereotypical ideas and romantic paternalism, and those that aim to remove historical or structural disadvantages.

Thus, a law mandating women’s reservations in the legislatures would not be based on the stereotypical notions of separate spheres and roles for men and women, but a way to ensure their fuller participation in politics and decision-making. Similarly, a law that bans female circumcision is cognizant of a social reality which operates on the foundations of gender-based stereotypes and misogynistic notions of pre-marital chastity.

It has been argued, for instance, that FGM is a form of gender-based violence that aims to control and regulate female sexuality. The report cited above demonstrated that women who underwent the surgery experienced lower sexual satisfaction, and even over-sensitivity in their clitoral area. Thus, it is perceived as a way not only to physically prevent “illegitimate” intercourse but also to purge the “impure” thoughts and desires of girls. The practice, therefore in itself, is violative of Articles 14 and 15 of the Constitution as it places unequal burdens on women on account of their sex.

Two other contentions raised by the respondents to the case merit consideration: that female circumcision is different from FGM and therefore should not be banned, and that khatna is an essential religious practice under Article 25, and hence possesses constitutional protection.

Khatna and the Definition of FGM

Since no Indian statute or court judgement has so far attempted to define FGM, we must rely on international standards and practices.

Firstly, it has been established that khatna involves cutting the prepuce or the clitoral hood. This would clearly fall within the comprehensive definition of FGM given by WHO under Type 1 (the partial or total removal of clitoral glans and/or the prepuce) as well as Type 4 (all harmful procedures to female genitalia like pricking, piercing, incising, scraping and cauterizing the genital area).

Furthermore, recently, in the case of R v. A2; R v. KM; R v. Vaziri, the Supreme Court of New Wales convicted a retired nurse and a mother of 2 daughters, in what was claimed to be ‘Australia’s first prosecution of an FGM case.’ The persons convicted belonged to the Bohra community, and the court considered the practice of khatna to fall within the definition of FGM under Section 45 of the Crimes Act of 1900.

Subsequently, in light of the decision, the Anjuman-e-Burhani Trust of Sydney (a trust managing the affairs of the Dawoodi Bohra community in Australia) released a notice conceding that the practice of khatna was a crime since it fell under the definition of FGM, and thus, should not be followed by the community members.

So, we can reasonably infer that the practice of khatna is a case of FGM – which has been banned in several nations and is internationally deplored.

The Essential Religious Practices Test

Secondly, the practice of khatna does not qualify the test of an essential religious practice (“ERP”) as it pre-dates Islam and is not mandated by any Islamic source of law, as was endorsed by the Inter-agency statement of prominent United Nations organisations like WHO, UN Population Fund (UNFPA) and UN Children’s Fund (UNICEF) among others. Previous reports by the WHO have come to similar conclusions. Moreover, even the members of the Bohra community overseas have been prohibited from practising it, and yet they are within the religious fold.

Even if it were an ERP, the right to freedom of religion under Article 25 is limited by “public order, health and morality” and other provisions of Part III of the Constitution. In fact, in Indian Young Lawyers Association v. State of Kerala, the Supreme Court noted that “morality” which constrains Articles 25 and 26 must be “constitutional morality” and “existing structures of social discrimination” must be evaluated through this prism. In his concurring opinion in the Sabrimala judgment, Chief Justice Chandrachud observed:

“Constitutional morality must have a value of permanence which is not subject to the fleeting fancies of every time and age… Once these postulates [of human liberty, equality, fraternity, and justice] are accepted, the necessary consequence is that freedom of religion and, likewise, the freedom to manage the affairs of a religious denomination is subject to and must yield to these fundamental notions of constitutional morality.” (¶12)

Thus, we can conclude that the respondents’ arguments do not stand the test of constitutional scrutiny.

Existing Legal Framework for FGM and Future

It is notable that while FGM continues to be prevalent in the country without any comprehensive legislation to tackle it, India itself has recommended countries like Guinea, Mali, and Gambia frame laws to prohibit the practice.

Within the existing legal framework, FGM could be penalized under Sections 324 and 326 of the Indian Penal Code, which criminalize ‘voluntarily causing hurt’ and ‘voluntarily causing grievous hurt’ respectively. Section 3 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) also criminalizes penetrative sexual assault on any child. Insertion of any object into the vagina of a girl child would be constitutive of penetrative sexual assault.

But since these statutory provisions have not proved sufficient to curb the practice, it is imperative that a comprehensive strategy dealing with FGM be made. Many African and European countries have already criminalized FGM by incorporating it in their existing penal code provisions or by making special laws to address it, and it is high time that the Indian government also addresses its social, moral and international obligations by making efforts to end the anathema of FGM.

Inspiration may be taken from the Netherlands where the collaboration between different actors like medical practitioners, school teachers, police, migrant organizations and reporting points of child abuse, as well as the decentralization of eradication efforts have proved effective. Similarly, in 2019, more than 175,000 girls were prevented from undergoing FGM in Burkina Faso, through community child protection communities which served to identify girls at risk of FGM and organize them into adolescent clubs. This serves to prove how community engagement is seminal in this process.

It is important to develop a legislation for India which can comprehensively define FGM (in line with WHO’s definition), incorporate provisions penalizing medical practitioners who conduct female circumcision and legally mandate medical, educational and psycho-social support for the victims.

This writer recommends a nationwide ban on FGM, along with state-level policies to eradicate it, which would be able to take into account the local diversities and available resources. Notably, the Bohra community is concentrated in certain states like Maharashtra, Gujarat, Rajasthan, Kerala, Telangana etc., which could be especially targeted.

Since the practice has strong ties with culture, it would be equally important to take community leaders and members into confidence and establish links of trust through a process of dialogue and deliberation. Members, especially current and future mothers need to be educated about the harms and consequences of the practice. This can best be done by involving teachers, civil society organizations, and community health workers like Anganwadi and ASHA (Accredited Social Health Activist) workers, preferably from the members of the practising community itself, who can act as agents of change.

The model of ‘African Well Woman Clinics’ established in the United Kingdom, to cater to the needs of migrant girls and women who underwent FGM has also proved successful in providing healthcare services and contributing to advocacy against the practice. Similar services could be provided in Primary and Community Health Centres.

Conclusion

To conclude, female circumcision as practised by the Bohra community deprives girls and women of their decisional autonomy, which is essential for the exercise of their right to privacy under Article 21, as enunciated by Puttaswamy. Further, since it places disproportionate physiological burdens on a woman, being based on gender stereotypes, it is against the equality clause of Part III of our Constitution. It squarely falls within WHO’s definition of FGM, which is accepted by most international organizations and declarations. Lastly, it cannot be protected as an ERP under Article 25, as it does not qualify the test for the same and is also not constitutionally sound. Thus, the Court must strike it down as unconstitutional.

But since this may not prove enough, the Indian government must form a comprehensive legislation and a strategy to eradicate the practice, for which it should engage with the practising communities and all other stakeholders, while also looking at the best practices around the world in dealing with FGM. This strategy must focus on prevention, protection, prosecution, provision of services and partnership.

It must be reiterated that consistent efforts are needed to protect the girls currently at risk, and also to ensure that future generations will be free from the dangers of FGM.

The author is an undergraduate student at National Law University, Jodhpur.