In response to a writ petition seeking a ban on subjecting minor girls from the Dawoodi Bohra community to Female Genital Mutilation (FGM), the Ministry of Women and Child Development has held that there is no official data or study that supports the existence of FGM in India.
The ministry, in its affidavit recently filed in the Supreme Court, said, “It is respectfully submitted that at present there is no official data or study (by NCRB etc) which supports the existence of FGM in India.”
The writ petition, filed by child rights advocate Sunita Tiwari, sought a ban on “the inhuman practice of ‘khatna’ or FGM, also known as ‘female circumcision’ or ‘khafd’… making it a cognizable, non-compoundable and non-bailable offence”.
In May 2017, a Supreme Court bench under then CJI J S Khehar, Justice S K Kaul, and Justice D Y Chandrachud termed it an “extremely important and sensitive issue”. The bench sought a “detailed reply” from all respondents named in the petition, including the WCD Ministry and the states of Gujarat, Maharashtra, Rajasthan and Madhya Pradesh, where much of the community is based.
Bohra women, who have been campaigning for a ban on the practice of type 1 FGM (removal of the clitoral hood) in India, had submitted their petition to WCD Minister Maneka Gandhi in May. Soon after, Maneka said the government would bring a legislation to outlaw FGM. As an interim measure, the ministry said it would issue advisories to all state governments, pointing out the IPC and POCSO provisions under which FGM cases can be prosecuted, as well as write to the Syedna, the spiritual leader of the community, asking him to enforce a ban. However, none of these were done, with the ministry maintaining silence on the issue.
“The ministry’s claim in the affidavit that it has no data to back the existence of FGM in India contradicts its earlier stand,” Tiwari told The Indian Express.
Her petition says that FGM has no reference in the Quran, violates fundamental rights and the rights of the child, and has been banned in the US, Australia and 27 countries in Africa. India, being a signatory to the UN General Assembly resolution of December 30, 2012, for a worldwide ban on FGM, should also declare it illegal, it states.
The writ petition says that while female genital cutting is a crime punishable under the IPC, no state police has ever taken action against the practice. It asks the court to direct all respondents in the case to issue orders to DGs of state police to take action against FGM under IPC until stricter laws are framed.
Repeating the contents from the petition, the WCD ministry’s affidavit lists the IPC sections that can be invoked to prosecute FGM cases. The affidavit also lists POCSO sections dealing with penetrative sexual assault, aggravated penetrative sexual assault and aggravated sexual assault under which hospital staff, blood relations or guardians of the child can be made to serve a jail term.
The affidavit also states that under the Government of India Allocation of Business Rules, the Ministry of Home Affairs is the nodal ministry dealing with criminal law against women and children while Ministry of External Affairs is the nodal ministry with reference to all international treaties and hence the two should be impleaded as parties in the case. Ministry officials did not comment on the issue.