“Culture must not be accorded the status of a metanorm which trumps rights”, - Philip Alston, ‘The Best Interests Principle: Towards a Reconciliation of Culture and Human Rights’.
The legal approach towards cultural practice in the name of preserving cultural pluralism has so far been in congruence within the relevant social understandings of the cultures within which they are practiced. The respective morality of these practices has been left for the sole discretion of dominant and prevalent notion of a particular community. In this course the gravest injury has been sustained by two groups, women and children who are socially vulnerable in current institutional setup. It is a fairly universally acknowledged fact that young people represent a subservient class and are comparatively powerless and that concerns about the welfare and discipline of young persons have plagued societies for centuries. Even Socrates is reported to have commented on plight of young people. Children were seldom mentioned in discussions of rights prior to the twentieth century. As indicated already, rights were generally assumed to be an attribute of rational adults. Legal scholarship has long been entertaining the principle that a culture can only be judged by endogenous value judgment and the moral principles which permeate form outside world has no validity or admissibility. Paradoxically this doctrine to preserve cultural autonomy made morality a slave to custom. There was still a gulf between the civil and political rights asserted for adults and the social welfare and protection rights granted to children. There were also no mechanisms for monitoring compliance with any of these Declarations of the Rights of the Child, meaning that they were little more than statements of good intent. Even if we look at the Constitution it nowhere mentions about the rights to children specifically.
John Stuart mill in his seminal work, ‘On Liberty’ observed, “Do we wish the 'ought' to relinquish any transcendental power it may have to critique the 'is'?”. Is it acceptable that a practiced must not be scrutinized under constitutional framework it is because it has been sanctioned by dominant group, which is disregarding the gross human right violation which has somehow acquired a universal conception? The most grueling and perturbing examples of cultural annihilation of child rights are child marriages and female genital mutilation. Culture by its very nature constrains thus says Janet A. Haley. The contention is how long should we allow the continuance of exploitative social institutions like patriarchy and others in the garb of cultural and group autonomy. And when it pertains to matter of child rights violations in the name of culture the situation is more morbid as this section of society is so vulnerable and fragile that it cannot even resist to the tyrannies of culture and eventually this injustice left an indelible mark on the psyche of children for lifetime. A culture always respond to dominating power structure of that particular society. For example, majority of Hindu cultural practices and norms are influenced by Brahmin notions regarding certain aspects of human life. Universalist approach of human rights suggests a universal definition regarding rights of child transcendental of the cultural and communitarian limits.
In this essay in the context of recent case in the Supreme Court pertaining to the female genital mutilation, the authors will argue that customary practices are wreaking havoc on child rights and the legal system be more considerate of their plight and reject the notion of absolute immunity to a culture in case of gross human rights violation especially in the cases of child rights violation as this section of society ids most vulnerable.
Before discussing the issue of the intersection of custom and child rights, it is pertinent to understand the case of female genital mutilation. The practice of genital mutilation, commonly known as circumcision, is highly prevalent among many Muslim communities in India. Such mutilation is performed on both males and females, mostly between the age of 5 and 10. Genital mutilation has severe health consequences both physical and mental and also, the objective of both is different and FGM is sought to control sexuality of women and girls. Regarded as a part of religious practice by such communities, these activities have larger implications on fundamental rights of children. Issue of FGM gained prominence after a public interest litigation (PIL) seeking ban on the same was filed in the Supreme Court. In India, it is common among Dawoodi Bohra (the Tayyabi Mustalili Ismaili sect under the Islam) community of Muslim Shia. It is performed clandestinely and often in unhygienic conditions. A great threat to health of girl-children, it is also a possible threat to their life if some infection takes place while performing circumcision. It leads to painful urination and pain during menstruation in them during their later years.
FGM involves complete or partial removal of genitalia of female and comprises all other injuries in furtherance of the same, such activity being performed in an unprofessional manner by old women of the community, commonly known as Dai. Mostly carried out on girls between age of 5-10, it is sometimes performed even on married and adult women if they have not undergone it in their early age. According to a joint statement by the United Nations Children’s Fund (UNICEF), United Nations Population Fund (UNFPA), and World Health Organization (WHO), FGM has four classifications:
- Type 1. It involves removal of clitoral hood, with or without the removal of all or part of the clitoris.
- Type 2. It involves removal of the clitoris with the total or partial excision of the labia minora.
- Type 3. It involves removal of all or part of the labia minora or/and labia majora. This is followed by stitching of the vagina to narrow its opening. This practice is also referred to as infibulation.
- Type 4. This type is most harmful of all. It involves dangerous non-medical procedure to the female genitalia which includes piercing and pricking of the clitoris, stretching of the clitoris, cauterization, introducing corrosive substance into vagina.
FGM, often carried out in unhygienic and clandestine manner without anesthesia, poses a great threat to health of the individual and also involves risk to the life, if some grave infection takes place. It involves both short-term and long-term health risks. Short-term risks involve swelling and inflammation in the genital area, urinary problems, excessive bleeding and in some severe cases, even death. This also has severe consequences on their health: pain during menstruation and painful urination. Long-term consequences involve recurring urinary tract infections, chronic genital infections, painful sexual intercourse, complications during pregnancy, pre-natal risks, and complications during pregnancy.
Though it is a singular incident in the life of victim and the victim might not face any such abuse of physical violence in future, yet FGM has long-term impact on her in the form of post-traumatic stress disorder (PTSD). FGM disables woman permanently from her right to sexual pleasure throughout her life and the trauma haunts her for her entire life. She can also be identified as a disabled person depending upon the extent of FGM. S. 2(s) of the Rights of Persons with Disabilities Act, 2016 defines ‘person with disability’ as: “a person with long term physical, mental, intellectual or sensory impairment which, in interaction with barriers, hinders his full and effective participation in society equally with others”. Long-term mental impairment caused due to experiences of FGM may lead an individual to live with stigma and hence adversely affect her interaction with the society. Speaking legally, some victims of the FGM may be identified as ‘person with disability’. Thus, FGM affects not only the health of girls and women but also their social development.
As this practice ingeniously attacks the bodily integrity of a child it is in strict violation of Article 21 of the Constitution of India. The doctrine of bodily integrity safeguards the physical parameters of a person and according to Justice Blackmun, the right to bodily integrity is cornerstone of all other liberties. Thomas Jefferson asserts that the true basis of any democratic government “is the equal rights of every citizen, in his person and property and in their management”. American constitutional law and common law principles have incorporated the concept of bodily integrity in a wide array of legal principles as an inherent right of individuals which ensures an individual the physical liberty. J.S. Mill, in his iconic work ‘On Liberty’, opines that, “Over himself, over his own body and mind, the individual is sovereign”. He points out that one should have ultimate control upon his body and this philosophy forms the core of the right to bodily integrity. This right also takes within its fold protection from outside intervention to body and physical violence in furtherance of the same. In fact, this is the basic philosophy of the natural rights which has also been recognized by our Constitution by the way of judicial interpretation.
In right to privacy judgment the court held that “The dignity of the individual encompasses the right of the individual to develop to the full extent of his potential. And this development can only be if an individual has autonomy over fundamental personal choices”. “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law”.
The notion that every individual must be protected from the non-consensual physical intrusion is deeply embedded in Anglo-American jurisprudence, and since India adopted the legal system based on Anglo-American jurisprudence, it also follows the same principles and philosophies. The liberty granted to the citizens is not just a series of rights or privileges guaranteed by state to individuals but a rational continuum which encompasses the freedom form all substantial and arbitrary impositions and purposeless restraints. As an exclusive right, the right to bodily integrity is both jus in personam and jus in rem and it imposes strict duties of non-interference, and infringement of the right to bodily integrity is actionable per se. The “right to have one's own body whole and intact” and the “right to be free from physical interference” follow from the right to bodily integrity, but such rights-claims do not capture the full legal form of the right to bodily integrity. The right to bodily integrity is the right to exclude all others from the body, which enables a person to have his or her body whole and intact and free from physical interference. This is the extension of personal autonomy guaranteed under Article 21 of the Constitution of India. In Puttuswamy case the Supreme Court of India held that privacy at a subjective level is a reflection of those areas where an individual desire to be left alone. On an objective plane, privacy is defined by those constitutional values which shape the content of the protected zone where the individual ought to be left alone.
The defenders of this practice argue the cultural autonomy and consider any claim over their cultural practice as a curtailment of their cultural autonomy. To begin with it is pertinent to understand the root of cultural rights and the answer to the question as to why in a constitutional democracy a minority community is protected by constitution. Now when it comes to the question of rights of minority culture, more or less these are the special rights with the liberal commitment to individual autonomy. The rights to minority cultures ensure the protection of certain cultural uniqueness from the encroachment by political and economic decisions by majority culture.
“Liberalism is committed to (perhaps even defined by) the view that individuals should have the freedom and capacity to question and possibly revise the traditional practices of their community should they come to see them as no longer worthy of their allegiance”. A liberal theory wouldn’t hesitate to accept special rights for minority culture against a majority community so as to ensures equality of circumstances between them but special rights of a culture against its own members cannot be justified at all. In case of former it promotes and protects the autonomy of minors and in latter case it just restricts. In the course of time there has been shift in the ethical balance between individual and group in the direction of individual. The liberal theory expounds that every individual must have a right to exit and this is completely different form coercively imposing liberalism on minority groups but it provides an individual with the option to make informed choice on the way he wants to conduct his life.
While dealing with question of child rights and culture the courts must always look for the best interests of children. The best interests of the child should be the primary consideration, if not the paramount consideration. We cannot disagree to the norm set by Article 3(1) of UNCRC: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. The reconciliation of the best interests principle with cultural norms is a major concern, perhaps more so now in our post 9/11 world than was the case in 1989. We are much more sensitive to cultural diversity and arguably more tolerant of it than we were when the principle was being formulated. But even in 1989 there was inserted into the Preamble of the Convention the need to take due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child.
In words of Ncube it is demand of time that we must recognize the normative universality of the conception of child rights while defining and formulating them while remaining within the autonomous legal framework for the cultural rights giving ample space to the existent diverse and varied cultural and traditional conceptions of childhood, its role, its rights and obligations. According to him, in the African cultural context childhood is not perceived and conceptualized in terms of age but in terms of inter-generational obligations of support and reciprocity. In this sense an African 'child' is often always a 'child' in relation to his or her parents who expect and are traditionally entitled to all forms of support in times of need and in old age’.
In the context of culture and rights, following the same line of argument Justice DY Chandrachud in Indian Young Lawyers Association v. State of Kerala observed that: “Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny is to deny the primacy of the constitution”.
While acknowledging the concerns of minority group over protection of cultural rights the historical injustices pervading in the guise of culture cannot be sanctioned by constitutional morality (here we can draw an analogy with the universality of child rights), Justice DY Chandrachud was of same view in Indian Young Lawyers Association v. State of Kerala, where he observed that: “In the dialogue between constitutional freedoms, rights are not isolated silos. In infusing each other with substantive content, they provide a cohesion and unity which militates against practices that depart from the values that underlie the Constitution – justice, liberty, equality and fraternity. Substantive notions of equality require the recognition of and remedies for historical discrimination which has pervaded certain identities. Such a notion focuses on not only distributive questions, but on the structures of oppression and domination which exclude these identities from participation in an equal life”.
At this point, it is important to take into account the transformative character of the Constitution. As Granville Austin notes, “The Indian Constitution is a live document in a society rapidly changing and almost frenetically political. The touchstone for public and many private affairs, the Constitution is employed daily, if not hourly, by citizens in pursuit of their personal interests or in their desire to serve the public good”. Describing the Constitution as a ‘social revolutionary document’ with ‘modernizing force’, Granville Austin invokes the ‘constitutional morality’ enshrined under Article 25 of the Constitution to argue that rights must take upper hand. The spirit of transformative constitutionalism can only be realized when the practices which reflect the unjust notions and prejudices of past would be censored by court in order to achieve a society based on the conception of human dignity and liberty. Among the most notable transformations is the extension of the ‘classical’ western notions of rights. The Indian Constitution, inaugurally, extends the notion of rights beyond the state to civil society. It outlaws the practices based on the ground of ‘untouchability’; forbids and penalizes practices of forced and bonded labor and markets for trafficking in human beings; and provides a first contemporary example of empowering state action in aid of human rights against formations of cruelty in civil society. The Indian Constitution, in its progressive development, becomes the vehicle of empowerment of the untouchables and indigenous peoples. Culture should never be an enslaving institution abrogating basic fundamental rights of children which are universal in nature.
While striking down the section 377 of IPC the Supreme Court emphasized on the importance of transformative character of constitution. “There is a constant need to transform the constitutional idealism into reality by fostering respect for human rights, promoting inclusion of pluralism, bringing harmony, that is, unity amongst diversity, abandoning the idea of alienation or some unacceptable social notions built on medieval egos and establishing the cult of egalitarian liberalism founded on reasonable principles that can withstand scrutiny”.
In this context, it is even more important to protect children who are socially vulnerable and to secure to them child rights. Founding doctrines of our constitution must be unearthed to overcome the menace of suppression of rights by superimposing customs. This concept of constitutional morality was laid down by the Supreme Court in Manoj Narula v. Union of India. Elaborating the concept of constitutional morality, Justice DY Chanradrachud in Govt. of NCT of Delhi v. Union of India highlighted the need to identify incoherent values by quoting Bhargava’s work titled ‘Politics and Ethics of the Indian Constitution’: “There is a pressing need to excavate the moral values embedded in the Constitution, to bring out their connections, and to identify the coherent or not-so-coherent ethical worldviews within it”.
These ideals of the constitution mandate that child rights must be protection, and in the case of FGM, intrusion from bodily violation. Justice DY Chandrachud had urged this protection, “Women have a constitutional entitlement that their biological processes must be free from social and religious practices”.
To this end, constitutional rights are often violated not at the hand of the State but private individuals. The Constitution not only provides for negative rights, i.e., freedom from state intrusion, it also provides for certain obligatory positive duty for the state. In such a situation where child rights are put at stake and often violated by individuals and groups in the name of custom and religious practice. Often, our existing legal framework do not effectively provide protection given the religious element involved and in the case of FGM, they do not protect girl child. In such a situation, it is the duty of the State to step for the protection of victims and make social welfare legislations banning such practice. Flavia Agnes posits that it is important to “weave women’s rights into legal theory”, but it is the need of the hour that the Supreme Court bans the practice of FGM preserve the fundamental rights of children and obviously women because the practice inflicts grave physical and mental torture on them. Culture must not be a defense when taking away the rights of most vulnerable section of society who could not even raise voice against the oppression and exploitation inflicted on them.