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Co-Written by Bhaskar Kumar & Snehil Kunwar Singh

A three-judge bench of the Supreme Court (SC) comprising CJI Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud are to conclude hearing on a PIL seeking complete ban on Female Genital Mutilation (FGM).

Practice of FGM also known as ‘Khatna’ is highly prevalent among Dawoodi Bohra community among Muslim Shia. Also referred to as Tayyabi Mustalili Ismaili sect under the Islam, they are the only Muslim community to perform it. Such practice finds no mention in Quran or any other religious text.

Men of Bohra community are merchants and often travel a lot regarding their business. As a result, they are often insecure of their wives becoming unfaithful. Consequently, genitals of girls are mutilated at a very young age often between 6 and 8 which causes loss of libido when they hit puberty and as they grow. FGM, often carried out in unhygienic and clandestine manner, pose a great threat to health of the individual and also involves risk to the life, if some grave infection takes place. This also has severe consequences on their health: pain during menstruation and painful urination.

FGM harms women in many ways. It involves removal and damage of healthy and normal female genital tissue. It interferes with the natural function of girls’ and women’s bodies.

FGM is often done without anaesthesia, or medical supervision and sometimes the procedure goes horribly wrong. It often leads to pain, shock, tetanus, genital sores, excessive bleeding, etc. It also has long-lasting psychological impact on the victims, ranging from sexual disorders, fear of sexual intimacy, nightmares and post-traumatic stress disorder.

In lay terms, it means cutting a part of the clitoris. In real-life terms it means young girl children aged 6-8 are beguiled with a lure of candy or some other promise into an unknown place where another woman, in a most crude and unhygienic manner cuts a part of the clit with a razor or blade, without anaesthesia.

Violation of Right to bodily integrity

“The right to bodily integrity is cornerstone of all other liberties.”
-Justice Blackmun

No a single civilised society can claim itself as progressive one if the bodily integrity of a person is not sanctified and protected by its legal system. Emphasizing the importance of right to bodily integrity as an inherent right of human being John Stuart mill writes- “Over himself, over his own body and mind, an individual is sovereign” This is the basic philosophy incorporated into the constitutions across the democratic nations to provide absolute autonomy over one’s personhood.
David Feldman in his magnum opus, Civil Liberties and Human Rights in England and Wales, puts it the right to bodily integrity is “a right to be free from physical interference”Every human being’s right to life carries with it, as an intrinsic part of it, rights of bodily integrity and autonomy – the right to have one’s own body whole and intact and (on reaching an age of understanding) to take decisions about one’s own body.

Genital mutilation at its core is serious invasion of bodily integrity of the person. In this case the genitals of a child are mutilated without taking into consideration the consent factor. In YF v. Turkey, a forced gynaecological examination was considered as a gross violation of right to bodily integrity which was guaranteed under Article 8 of European convention of human rights.

Child rights and Genital mutilation

Article 19.1 of the united nations convention on child rights requires governments to “take all appropriate measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse, while in the care of their parents, legal guardian(s) or any other person who has the care of the child”. The wording of this Article places significant restrictions on family autonomy when questions arise as to the child’s need for protection.

Article 21 and right to bodily integrity

The framers of ourconstitution envisioned India as a society where the personal liberty is a subject of paramount importance and considered as an inherent right of its citizens. As clearly delineated in the preamble to the constitution the objective of constitution is to secure for its citizens justice, Liberty and Equality.

So in order to preserve one’s liberty as an inherent value of life right to life and personal liberty was incorporated as a fundamental right under article 21 of the constitution. Right to life encompasses the right to bodily integrity as in Selvi and ors. v State of Karnataka, the SC had held that article 21 can be invoked to protect the bodily integrity. Consequently, the genital mutilation is in gross violation of Article 21 of constitution of India and hence FGM should be banned.

Bhaskar Kumar & Snehil Kunwar Singh are 2nd Year, B.A. LL.B. (Hons.) students at National Law School of India University, Bangalore

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