Legislating upon Female Genital Mutilation: Global Lessons and Localised Execution

Abstract

The secretive practice of Female Genital Mutilation (FGM) has gained significant public attention in India during the last decade, particularly in light of a Public Interest Litigation filed by Sunita Tiwari. FGM is a deeply entrenched practice in many communities across the globe, including the Dawoodi Bohras in India. While the adverse health and medical issues that ensue the practice are undeniable and undebated, its social acceptance within certain communities has precluded the possibility of eliminating it from the roots. In these circumstances, the recent adoption of criminal laws which impose strict liability for the involved parties has not only helped in curbing the practice of FGM, but has also established significant relevance in spearheading the process of social change in many countries. While the movement against FGM has gained significant traction globally, the Indian laws have been contented with ignorance which indicate a lethargic attitude of the government regarding their participation in the said movement. In this light, the present paper tries to highlight the deteriorating situation regarding the practice, where there is inadequate protection for the aggrieved women, and social persistence to conduct FGM owing to the lack of an explicit mechanism (legal or otherwise) to address the issue. Taking cues from the other jurisdictions, particularly the United Kingdom, France, and Kenya, the authors have tried to argue in favor of a comprehensive legislation that not only imposes differential criminal liabilities on parents, clergy, and medical practitioners; but also provides for adequate compensatory mechanisms, preventative protection orders, reporting duties,  extra-territorial application and many other clauses that extensively seek to abolish the practice of FGM. Analysing the social acceptance of the practice, the paper also suggests that the government must undertake a multi-pronged strategy focused upon criminal legislation, human rights framework, health risk approach, training of health workers, institutional development, awareness programmes and the usage of comprehensive social development to abolish the practice of FGM that renders many women physically, mentally and psychologically scarred, for life. However, the scope of this paper is predominantly limited to the legal framework. In addition, the authors have conducted a short empirical study to highlight the problems pertaining to FGM, and the need for bringing accountability for the involved parties.