By Shreya Jaipuria
Introduction
Female Genital Mutilation/Cutting [“FGM/C”] has been a widely discussed women’s rights issue worldwide. There is a body of literature, discussing the human rights implications of it, and evaluating the practice in the universalism-cultural relativism context. However, there is insufficient public discourse on the practice of FGM/C in India.[1] Even though it is ‘known’ to be practiced among the Dawoodi Bohra community, concrete data or figures are absent. A report released by Sahiyo, a non-governmental organization working to end FGM/C in India, in January 2017 brought this issue to the forefront.[2] A petition was filed in May 2017 in the Supreme Court,[3] seeking a complete ban and declaration of the practice as illegal and unconstitutional. It was clubbed with the Sabarimala review and is now pending before a 9-judge bench of the Supreme Court.
Known as ‘khatna’ or ‘khafd’ in the Dawoodi Bohra community, the FGM/C procedure involves the removal of skin from the clitoral hood among young girls aged between 0 to 15 years, typically around the age of 7.[4] Many Islamic scholars have denounced this practice. It does not find mention in the Quran, but a religious text followed by the community, called Daim al-Islam, endorses it.[5] The literature on this practice in India is very limited. The justifications for FGM/C vary. Contrary to popular belief, Islam and FGM/C are not interconnected. In fact, some Islamic groups oppose the practice.[6] Generally, the justifications given by communities practicing FGM/C are- religion, health and hygiene, sexual control of women, and culture and tradition of the community.[7] Among the Dawoodi Bohras, it is largely an unspoken cultural tradition mandated by the community’s religious leaders, known as Syedna, and as a tool to control women’s sexuality. It is also linked to inclusion and acceptance within the community.[8] Hence, more than ‘religious’ significance, importance is placed on ‘community identity’. FGM/C can lead to short-term and long-term physical and mental consequences, including negatively impacting sexual activity among women.[9]
In this essay, by applying a relativist-universalist feminist framework, I have highlighted the perils of cultural essentialism and feminist imperialism within human rights advocacy. I have also argued against misplaced importance on legislation as a means to end FGM/C in India. An attempt has been made to show how and why a carceral response might not be the most effective solution, keeping in mind various unique factors in the Indian context.
As an outsider woman, I understand the limitations of my perspective and writing. I acknowledge that I cannot speak on behalf of Dawoodi Bohra women, who undergo this traumatic procedure. Thus, a conscious effort has been made to avoid falling into the trap of cultural essentialism or imperialist feminism. When I say ‘imperialist feminism’, I refer to the tendency of ‘Western’ feminists to homogenize women’s issues in the Global South and speak on their behalf. This not only constructs women in the Global South as ‘victims’, but also casts Western feminists as ‘saviours’, creating a neocolonialist power relation between them, which becomes a form of cultural imperialism. Western feminists, in this context, would also include privileged, upper class, upper caste women in the Global South, who advocate against issues without accounting for the differences among women and heterogeneity, thus making the feminist movement exclusionary.
Cultural Relativism-Universalism
FGM/C results in multiple violations of International Human Rights Law [“IHRL”], which have been discussed in detail previously.[10] India is a party to the Universal Declaration of Human Rights, 1948 [“UDHR”], Convention on the Elimination of all forms of Discrimination Against Women, 1979 [“CEDAW”], International Convention on Civil and Political Rights, 1976 [“ICCPR”], International Convention on Economic, Social and Cultural Rights, 1976 [“ICESCR”] and United Nations Convention on the Rights of Child, 1989 [“CRC”]. While it was earlier framed as a health issue,[11] FGM/C is now seen as a form of gender violence and discrimination. FGM/C leads to multiple human rights violations, namely right against gender discrimination,[12] right to life,[13] right to physical and mental health.[14] It also results in a violation of CRC as it violates the “best interest of child” principle.[15] The CRC also places an obligation on States to take measures to abolish “traditional practices” harmful to children’s health, which FGM/C violates.[16]
The feminist movement in IHRL has been concerned with ensuring that forms of violence against women, such as marital rape, domestic violence and FGM/C, are recognized as human rights violations.[17] FGM/C has specifically been recognized as a form of “violence against women”.[18] States have been called upon to take steps and report on the effectiveness of the steps taken to end FGM/C.[19] The obligation to address “cultural practices” that are discriminatory or disadvantages to women has also been outlined in the CEDAW.[20] While there is an obligation under IHRL to end the practice of FGM/C, the means to fulfil this obligation can be chosen by States.
Much has been written about cultural relativism and the universality of human rights and how these two concepts are to be balanced.[21] In this section, I do not seek to assess which prevails, as the position with respect to FGM/C in IHRL is clear. Abusive and invasive cultural practices cannot be defended on grounds of cultural relativism. While it can often be egregious to label violent practices against women as cultural or traditional, FGM/C among the Dawoodi Bohras is almost exclusively seen as a ‘cultural and religious practice’. Women themselves have claimed that their individual identity within the community derives and relies on this communitarian practice.[22] Thus, it is important to examine this practice in India within the relativist-universalist framework of human rights, assessing the problems attached with adopting either of the two positions.
First, it is important to be mindful of cultural essentialism and the fallacy of associating the entire community with the practice.[23] Doing so negates the voices of the dissidents within the community itself.[24] This becomes apparent in the study conducted as a response to the Sahiyo report.[25] Members of the community felt that the Sahiyo report failed to highlight the dissenting groups within the community. Contestation and change within a community are often not accorded sufficient space.[26] There is no amplification of dissidents’ voices, resulting in their alienation. This also leads to problems of protectionism and victimization, where all women in the community are labelled to be in need of ‘saving’.[27] This, in turn, increases the probability of the accusation of imperialist feminism and ‘Otherisation’ by those who advocate on behalf of these women.
When Western liberal feminists or feminists from outside the community take up an issue, it drowns the voices of women within a community. Differences among women within the community are sidelined, leading to homogenization of demands.[28] This strips them of any agency that they might have previously held, isolating them even further from a seemingly legitimate cause. This is not to say that women beyond the community should not advocate on these issues. However, while doing so, they should be mindful of their own imperialistic tendencies,[29] and perceiving a community as wholly different, primitive, and outside the ‘norm’, where the normal reflects the majoritarian, dominant, or powerful group/community’s construction of acceptable conduct in society.[30] This problem becomes particularly concerning in India, where Muslims are already categorized as the ‘Other’ in the mainstream public discourse.[31]
Second, the continuance of the practice is said to be due to religious and cultural pressure within the community, including from the Syedna.[32] While older women in the family take girls for the khatna procedure, the men are not oblivious to its occurrence.[33] Many women, who have undergone the procedure themselves, have claimed that they will not force it on their daughters.[34] Further, continuance of this practice seems to be rooted in the need for acceptance and validation within the community. This is indicative of the possibility that the practice is a means to assert and retain power and domination over women.[35] Thus, it is imperative to question the basis and root of the ‘cultural’ practice and who advocates for its continuation. Asking these questions reveal its discrimination, since the burden of preserving culture is solely placed on women.[36] The purely invasive nature of the practice is also highlighted.
Towards Ending FGM/C
The first solution proposed to the problem of FGM/C has always been legal reform to ban and criminalise the practice. The petition in the Supreme Court asks for similar reliefs. Governments and advocacy groups across the world tend to forget that legislation is only one of the means of securing human rights and often an ineffective one. Law might make FGM/C ‘illegal’, but it does not reduce its ‘legitimacy’ among those practicing it.[37] It is important to assess whether law can actually change attitudes and beliefs.[38] This is not to say that laws do not resonate or are irrelevant for people who have a different set of tradition and values. Also, law does help in setting a foundational basis to drive other activities, such as awareness drives and greater advocacy against the practice within and outside the community. The argument is not against legislation criminalizing FGM/C. However, misplaced importance on law as an all-encompassing remedy must be challenged.
There are certain factors, which help determine the extent to which the legal framework of human rights can empower women. They are- specific religious, cultural, geographical, political and socio-economic context, legal or rights consciousness within the community, risk of backlash from the community, historical experience of other States using the legal framework of rights, and agreement among affected women regarding violation of a human right.[39]
FGM/C among Dawoodi Bohras is seen as a right to passage into the community and acceptance within it. Many women claim to keep up with it because of a fear of negative reaction and those who oppose it are usually ones who do not regard community as being important to them.[40] It is estimated that around 59 countries have legislation against FGM/C.[41] Legal reform was heavily pushed for and its efficacy has only begun to be assessed now. Multiple recent studies show that FGM/C legislation has not had the impact that was sought or hoped for.[42] This is because of enforcement issues, lack of awareness about the law, community considerations, and conflicting perceptions regarding criminalization.[43] It is likely that the consequences will be similar in India because of the enforcement issues that are likely to arise coupled with a lack of consensus on banning FGM/C. FGM/C is carried out so secretively that there is no official data and barely any reports available otherwise. Since women of the family are involved in perpetuating the practice, victims are unlikely to lodge a complaint against them.[44] Additionally, it is usually performed on young girls, who will probably be unaware of any recourse available to them. Young age also ensures lack of resistance and forgetfulness over time. Legislative reform might result in the procedure being performed in even younger girls, as they have no rights consciousness. Younger girls are thus unlikely to resist the practice. Successful implementation of legislation is not merely dependent on the rights consciousness of the victim. However, given the secretive and private nature of this practice, a lack of rights consciousness only makes it easier for the practice to continue since the possibility of incarceration becomes low.
There is a pronounced risk of backlash from the community and women’s groups within the community who have stepped forward to oppose the petition seeking banning of FGM/C.[45] This also shows that there is a lack of consensus among women of the affected community, who do not view this as a violation of their human rights. Conversely, they might consider State action as interference within the private sphere. The minority status of the community further heightens the likelihood of State action being viewed as a means to control the supposed ‘Other’s’ private life by terming its cultural practices as barbaric and violent.
Scholars have proposed feminist pragmatism or a ‘bottoms-up’ approach as a solution.[46] It involves the use of practical solutions to address a problem, such as awareness creation, facilitation of dialogue within and with the community, and amplification of women’s voices from the community.[47] There is no clear indication of the community’s women’s stance on the continuation of the practice. A multicultural exchange between women from the community and those outside it might better the understanding of the history and specificity of a cultural practice. This helps in cultivation of those methods, which will most suitably address the problem.[48] Apart from law, the practices that can be developed are mainstreaming of anti-FGM programmes and involvement of the community in them, coordinated work between NGOs and the government, involvement of youth from the community, and accurate mass media coverage.[49]
The fear of imperialist feminism should not stop women outside the community from opposing the practice. There was hardly any discussion or concern about FGM/C in India before the Sahiyo report, which led to a chain of articles being published on multiple online platforms. Despite appeals being made to the UN to recognize the prevalence of FGM/C in India, it has not done so.[50] A 2018 Report of the Secretary-General references the Sahiyo report, but does not explicitly acknowledge the existence of the practice in India.[51] This highlights the need for mobilisation on a larger scale. Women outside the community must use their privilege to make silent voices heard. At the same time, involvement from within the community has to be encouraged and those who oppose the practice must be given a space to articulate their concerns publicly. It is imperative to recognize silences and ensure that lived experiences of the Dawoodi Bohra women is not excluded.[52]
Conclusion
It is widely known that FGM/C is prevalent in India, but there has been no formal acknowledgement by the State. While certain non-governmental organizations and groups have been fighting to end the practice, the discussion around the issue has largely been absent in mainstream public or academic discourse. There is a marked absence of outrage against the practice in India from all fronts. The State has been silent and has refused to even acknowledge its existence, proving that State centrality is of prime importance in the implementation of human rights.
If women from outside the community speak out against FGM/C, problems of protectionism and otherisation are bound to be present, especially given that the practice is prevalent among a minority community in a majoritarian State. Therefore, the challenge ahead is to balance these externalities while ensuring that young girls are not deprived of their right to life and bodily integrity. While legislation is often advocated for, it is unlikely to be successful in the Indian context. It is necessary to engage in dialogue with women from the community, bring them within the fold, and contemplate the best way forward, with them.
The author, Shreya Jaipuria, is currently a law student at the National Law School of India University (NLSIU), Bangalore.
[1] See Rehana Ghadially, ‘All for Izzat’ (September-October 1991) 66 Manushi 17; Kathleen Monahan, ‘Cultural beliefs, human rights violations, and female genital cutting: Complication at the crossroad of progress’ (2007) 5(3) Journal of Immigrant & Refugee Studies 21; Ike Burson, ‘Social work and female genital cutting: An ethical dilemma’ (2007) 4(1) Journal of Social Work and Ethics.
[2] Mariya Taher, ‘Understanding Female Genital Cutting in the Dawoodi Bohra Community: An Exploratory Survey’ (Sahiyo, February 2017) (Sahiyo Report).
[3] Sunita Tiwari v Union of India, Writ Petition (C) No. 286/2017 (Supreme Court of India).
[4] Sahiyo Report (n 2).
[5] Sahiyo Report (n 2).
[6] Regina Gemignani, ‘Female Genital Mutilation and the Law: A Qualitative Case Study’ in M.D. White (ed), Law and Social Economics (2015).
[7] World Health Organization, ‘Female Genital Mutilation: Integrating the Prevention and the Management of the Health Complications into the Curricula of Nursing and Midwifery: A Teacher’s Guide’ (2001) <http://www.who.int/gender/other_health/teachersguide.pdf> last accessed 15 November 2020.
[8] Sahiyo Report (n 2).
[9] Sahiyo Report (n 2).
[10] –, ‘Female Genital Mutilation: Guide to Eliminating the FGM Practice in India’ (Lawyers’ Collective Women’s Rights Initiative and Speak out on FGM, 2017).
[11] Bettina Shell-Duncan, ‘From Health to Human Rights: Female Genital Cutting and the Politics of Intervention’ (2008) 110(2) American Anthropologist 225.
[12] Convention on the Elimination of all forms of Discrimination Against Women (adopted 18 December 1979) 1249 UNTS 13 (CEDAW), art 1; Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 2; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 2, 3, 26; International Convention on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 3 (ICESCR), art 2, 3.
[13] UDHR (n6), art 3; ICCPR (n6) art 6; United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC), art 6.
[14] UDHR (n6), art 25; ICESCR (n6), art 12.
[15] CRC (n7), art 3.
[16] CRC (n7), art 24.
[17] Rebecca Cook, ‘State Accountability Under the Convention on the Elimination of All Forms of Discrimination Against Women’ in Rebecca Cook (ed), Human Rights of Women: National and International Perspectives (University of Pennsylvania Press 1994); Berta Esperanza Hernandez-Truyol, ‘Women’s Rights as Human Rights- Rules, Realities, and the Role of Culture: A Formula for Reform’ (1996) 21 Brooklyn Journal of International Law 605; Kathleen Mahoney, ‘Theoretical Perspectives on Women’s Human Rights and Strategies For Their Implementation’ (1996) 21 Brooklyn Journal of International Law 799; Dorothy Thomas, ‘Domestic Violence as a Human Rights Issue’ (1993) 15 Human Rights Quarterly 36.
[18] Declaration on the Elimination of Violence against Women, UNGA Res 48/104 (20 December 1993) A/RES/48/104, art 2.
[19] Committee on the Elimination of Discrimination against Women, ‘General recommendation No. 14: Female circumcision’ in ‘General Recommendations Adopted by the Committee on the Elimination of Discrimination Against Women’ (9th session 1990) UN Doc A/45/38.
[20] CEDAW (n6), art 5(a).
[21] See David R. Penna and Patricia J. Campbell, ‘Human Rights and Culture: Beyond Universality and Relativism’ (1998) 19(1) Third World Quarterly 7; Elizabeth M. Zechenter, ‘In the Name of Culture: Cultural Relativism and the Abuse of Individual’ (1997) 53(3) Journal of Anthropological Research 319; Jack Donnelly, ‘Cultural Relativism and Universal Human Rights’ (1984) 6(4) Human Rights Quarterly 400; Fernand de Varennes, ‘The Fallacies in the “Universalism Versus Cultural Relativism” Debate in Human Rights Law (2006) Asia-Pacific Journal on Human Rights and the Law 67.
[22] Sahiyo Report (n2); Tavistock Report (n23).
[23] Uma Narayan, ‘Essence of Culture and a Sense of History: A Feminist Critique of Cultural Essentialism’ (1998) 13(2) Hypatia 86.
[24] Catherine Powell, ‘Introduction: Locating Culture, Identity, and Human Rights Symposium in Celebration of Fiftieth Anniversary of the Universal Declaration of Human Rights’ (1998) 30 Columbia Human Rights Law Review 201.
[25] Tavistock Report (n23).
[26] Jack Donnelly, ‘The Relative Universality of Human Rights’ (2007) 29(2) Human Rights Quarterly 281.
[27] Chandra T. Mohanty, ‘Under Western eyes: Feminist scholarship and colonial discourses’ in Chandra T. Mohanty, Ann Russo, and Lourdes Torres (eds), Third World women and the politics of feminism (Indiana University Press 1991).
[28] Inderpal Grewal, ‘‘Women’s rights as human rights’: Feminist practices, global feminism, and human rights regimes in transnationality’ (1999) 3(3) Citizenship Studies 337; Charlotte Bunch and Susana Fried, ‘Beijing ’95: Moving Women’s Rights from Margin to Centre’ (1996) 22(1) Signs 200.
[29] Rebecca Cook, ‘Women’s International Human Rights Law: The Way Forward’ in Rebecca Cook (ed), Human Rights of Women: National and International Perspectives (University of Pennsylvania Press 1994).
[30] Dorota Anna Gozdecka, Rights, Religious Pluralism and the Recognition of Difference (Routledge, 2016); Amy R. Jackson and Dorota A. Gozdecka, ‘Caught between Different Legal Pluralisms: Women Who Wear Islamic Dress as the Religious ‘Other’ in European Rights Discourses (2011) 43(64) The Journal of Legal Pluralism and Unofficial Law 91.
[31] Prashant Waikar, ‘Reading Islamophobia in Hindutva: An Analysis of Narendra Modi’s Political Discourse’ (2018) 4(2) Islamophobia Studies Journal 161; Rustom Bharucha, ‘Muslims and Others: Anecdotes, Fragments and Uncertainties of Evidence’ (2003) 40(38) Economic and Political Weekly; –, ‘The Exclusion Explainer: How the Hindu Right ‘Others’ Muslims’ (EPW Engage) <https://www.epw.in/engage/article/exclusion-explainer-how-hindu-right-others-muslims> accessed 22 May 2020.
[32] Sahiyo Report (n2). However, one Syedna has also opposed it among young children and has said that it should only be carried out after a girl turns 18 years old: Sreelatha Menon, ‘Syedna Fakhruddin, a Dawoodi Bohra Sect Leader, Condemns FGM as ‘Un-Islamic’’ (The Wire, 7 February 2017) < https://thewire.in/culture/fakhruddin-fgm-khafz-dawoodi> accessed 22 May 2020.
[33] Sahiyo Report (n2).
[34] Sahiyo Report (n2); Tavistock Report (n23).
[35] Uma Narayan, Dislocating cultures: Identities, traditions and Third World feminism (Routledge 1997).
[36] Partha Chatterjee, The Nation and Its Fragments: Colonial and Postcolonial Histories (Princeton University Press 1993) 116-30.
[37] Regina Gemignani, ‘Female Genital Mutilation and the Law: A Qualitative Case Study’ in M.D. White (ed), Law and Social Economics (2015).
[38] Leslie A. Obiora, ‘Bridges and Barricades: Rethinking Polemics and Intransigence in the Campaign Against Female Circumcision’ (1997) 47 Case Western Law Review 275; Ronald Krotoszynski, ‘Building Bridges and Overcoming Barricades: Exploring the Limits of Law as an Agent of Transformational Social Change’ (1997) 47 Case Western Reserve Law Review 423.
[39] Lucinda Joy Peach, ‘Are Women Human? The Promise and Perils of “Women’s Rights as Human Rights”’ in Lynda S. Bell, Andrew J. Nathan and Ilan Peleg (eds), Negotiating Culture and Human Rights (Columbia University Press 2001).
[40] Sahiyo (n2).
[41] –, ‘Looking back and pushing forward: the global fight to end FGM’ (UN Women, 4 February 2020) <https://www.unwomen.org/en/news/stories/2020/1/feature-global-fight-to-end-fgm> accessed 22 May 2020.
[42] Matilda Aberese Ako and Patricia Akweongo, ‘The limited effectiveness of legislation against female genital mutilation and the role of community beliefs in Upper East Region, Ghana’ (2009) 17(34) Reproductive Health Matters 47; Jane Muthumbi and others, ‘Female Genital Mutilation: A Literature Review of the Current Status of Legislation and Policies in 27 African Countries and Yemen’ (2015) 19(3) African Journal of Reproductive Health 32; Satang Nabaneh and Adamson S. Muula, ‘Female genital mutilation/cutting in Africa: A complex legal and ethical landscape’ (2019) International Journal of Gynecology and Obstetrics 1; Gemignani (n44).
[43] ibid.
[44] Radhika Coomaraswamy, ‘Different but Free: Cultural Relativism and Women’s Rights as Human Rights’ in C.W. Howland (ed), Religious Fundamentalisms and the Human Rights of Women (Palgrave Macmillan 1999)
[45] Vartika Neeraj, ‘Genital Mutilation Plagues Thousands of Bohra Women in India’ (The Wire, 23 July 2018) < https://thewire.in/women/genital-mutilation-plagues-thousands-of-bohra-women-in-india> accessed 22 May 2020.
[46] Ratna Kapur and Brenda Cossman, ‘Subversive Sites 20 Years Later: Rethinking Feminist Engagements with Law’ (2018) 44(2) Australian Feminist Law Journal 265; Joan Hoff, Law, Gender, and Injustice (New York University Press 1991).
[47] Peach (n46).
[48] Isabelle R. Gunning, ‘Arrogant Perception, World-Travelling and Multicultural Feminism: The Case of Female Genital Surgeries’ (1992) 23 Columbia Human Rights Law Review 189.
[49] World Health Organisation (Department of Gender, Women and Health), ‘Female genital mutilation: programmes to date: what works and what doesn’t’ (Policy Brief, WHO/RHR/11.36, 2011) <https://apps.who.int/iris/bitstream/handle/10665/75195/WHO_RHR_11.36_eng.pdf?sequence=1&isAllowed=y> accessed 22 May 2020.
[50] Aayushi Pratap, ‘List India as a nation that practises female genital mutilation’ Hindustan Times (Mumbai, 9 December 2016) <https://www.hindustantimes.com/mumbai-news/list-india-as-a-nation-that-practises-female-genital-mutilation/story-xv2tzCEkqMGSueyifMQvfP.html> accessed 22 May 2020.
[51] UNGA ‘Report of the Secretary-General on Intensifying global efforts for the elimination of female genital mutilation (27 July 2018) 73rd Session UN Doc A/73/266.
[52] Hilary Charlesworth, ‘Feminist Methods in International Law’ (2004) 36 Studies of Transnational Legal Policy 159.
The Journal of Indian Law and Society 