The Ministry of Women and Child Development (WCD) informed the Supreme Court this week that no official data or study was available that supported the existence of Female Genital Mutilation (FGM) in the country.
The ministry’s affidavit was filed in response to a petition seeking a ban on minor girls of the Dawoodi Bohra community being subjected to the practice.
SC Bench Called It A Sensitive Issue
The writ petition has been filed by a child rights advocate Sunita Tiwari who has sought that a ban be issued on the “the inhuman practice of ‘khatna’ or FGM, also known as ‘female circumcision’ or ‘khafd’, and make it “a cognizable, non-compoundable and non-bailable offence”.
A Supreme Court Bench comprising the then CJI J S Khehar, Justice S K Kaul, and Justice D Y Chandrachud had called the issue in a previous May hearing as an “extremely important and sensitive” one.
The bench had asked all respondents named in the petition to submit detailed response. This included the WCD ministry along with the states of Maharashtra, Gujarat, Rajasthan and Madhya Pradesh where has much of the community is based.
WCD Claim Contradictory To Earlier Stand
Bohra women in the country have been campaigning for the government to ban the practice of type 1 FGM (involving the removal of the clitoral hood) in India.
The group submitted their petition to WCD Minister Maneka Gandhi in May. Soon after, Gandhi stated that a legislation outlawing FGM in the country would be issued.
In the interim, the ministry said it will issue advisories to state governments, noting that the IPC and POCSO provisions can be used to prosecute FGM cases. It also said that it will communicate with the Syedna, the community’s spiritual leader, asking him to enforce a ban.
However, so far none of these steps have been taken and the ministry has maintained a silence on it.
Tiwari has said that the ministry’s claim in the affidavit was contradictory to its earlier stand.
FGM Not Mentioned In Quran
Tiwari’s petition states that FGM contains no references in the Quran, and that it violates the fundamental rights of the child. It further points out that the practice has been banned several countries including the US, Australia and 27 countries in Africa.
It further asks that as a signatory to the UN General Assembly resolution of December 30, 2012, India must declare it illegal. The UN resolution seeks a worldwide ban on FGM.
The writ petition notes that despite female genital cutting being punishable under IPC, so far no state police has taken action against it. The petitioner has urged the court to direct respondents to issue orders to DGs of all state police to take action under IPC against FGM until stricter laws are framed.
WCD Affidavit Suggests Prosecution Under IPC And POCSO
The WCD ministry’s affidavit has repeated the IPC sections given originally in the petition that can be used to prosecute FGM cases.
Similarly it has listed the POCSO sections that tackles aggravated penetrative sexual assault penetrative sexual assault, and aggravated sexual assault which prescribes penalties for hospital staff, guardians of the child or blood relations
The WCD ministry’s affidavit also notes under the Government of India Allocation of Business Rules, the nodal ministry for cases dealing with criminal law against women and children was the Ministry of Home Affairs while Ministry of External Affairs was as the nodal ministry for all international treaties and therefore these two must be impleaded as parties in the case.