2 December 2024
The Law and FGM/C in India: a General Legal Framework Without Specific Provisions
A report published by Orchid Project and the Asia Network to End FGM/C analyses the national legislation related to FGM/C in India. It found that, although there are no specific laws criminalising and no legal definition of FGM/C, the performance, procurement, arrangement, and assisting of acts of FGM/C may potentially be prosecuted under existing legislation. However, there has been no prosecution to date in India.
Three legal texts can currently criminalise FGM/C in India. The Bharatiya Nyaya (Second) Sanhita (BNS), the official criminal code of India, punishes the voluntary causing of ‘hurt’ (which could apply to Type 4) and “grievous hurt” (Types 1, 2, and 3). FGM/C could also be persecuted under “criminal force” (Section 129) or “assault” (Section 130).
Under the Prevention of Children from Sexual Offences Act (POCSO), FGM/C can be classified as penetrative or non-penetrative “sexual assault” (Sections 3 and 7), an offence that is “aggravated” (Sections 5 and 9) if it is carried out by a person in position of authority (including hospital staff and religious institutions), a parent, or a guardian.
The Protection of Women from Domestic Violence Act (PWDVA) is a civil law that may offer some protection from FGM/C under its Section 3, but it is limited to “adult male” in a “domestic relationship” with “any woman”.
Other related crimes can also be prosecuted under Indian law. Abetting FGM/C, allowing the use of premises, and providing or possessing tools for FGM/C can fall under the BNS (Sections 45 and 46) and the POCSO (Section 16), which define “abetment”. The BNS (Section 211) and the POCSO (Section 19) also require anyone who knows that an offence has been or will be committed to report it to the relevant public service, which may include FGM/C.
The report also addresses medicalised FGM/C. Despite the absence of a specific law or a regulation issued by the Ministry of Health, medical professionals could be prosecuted for FGM/C or failure to report incidents under the BNS and the POCSO.
Notably, the report highlights that, by protecting equality (Article 14), non-discrimination (Article 15), life and personal liberty (Article 21), and morality (Article 26), the Constitution of India could address FGM/C. However, it also includes provisions (Articles 25, 26, and 39) which may be interpreted to uphold the practice in the name of freedom of religion.
Finally, the report puts forth four recommendations: (i) a national survey be conducted to give a detailed overview of FGM/C in India; (ii) a national working group be set up to raise awareness on the harm caused by FGM/C; (iii) a comprehensive law be drafted; and (iv) a warning forbidding the practice be issued by the Ministry of Health to medical professionals.
Author : CACLIN Pauline
