Kerala High Court Dismisses PIL Seeking Ban On Non-Therapeutic Circumcisions

The Kerala High Court recently dismissed a Public Interest Litigation filed by Non-Religious Citizens (NRC), a cultural organisation based in Kerala, seeking to declare the practice of non-therapeutic circumcision illegal.

A division bench of Chief Justice S Manikumar and Justice Murali Purushothaman observed that the petitioners relied on newspaper reports to support their contentions and such a writ petition was not maintainable.

The court while dismissing the PIL observed:

“Giving due consideration to the material on record, we are also of the view that the petitioners have not substantiated their case. The Court is not a law making body.”

Adv Jeevesh appeared for the petitioners and Senior Government Pleader Adv K.P. Harish appeared for the respondents.

The petitioners contended that while the judiciary does not have the authority to make laws, it can give directives to ensure the protection of human rights within its jurisdiction without overstepping into the legislative realm. “If the State Machinery fails in giving protection to the rights of the citizens, as a guardian of the Constitution, the Constitutional courts are bound to interfere in the matter,” the petition said.

The Petitioners contended that the practice of circumcision is a ‘cruel’ and ‘unscientific custom’ that children are often victims of, terming it a human right violation.

The petitioners also claimed that such a practice was violative of the fundamental right to life under Article 21 of the constitution and hence the court is bound to interfere in the matter.

“A child shall have the right to believe or not believe in any particular religion and to follow or not to follow a particular practice or ritual. The practice of circumcision is compelled to be done on the children, not as their choice, but as they are being compelled to be followed only because of the unilateral decision taken by the parents,” it was argued.

Circumcision is the surgical removal of the tissue that covers the head of the male genital organ, the foreskin. Performing circumcision on a male child soon after birth, is an ancient practice followed in certain religions. The petition also contended that such a practice is not an essential religious practice as the nature of the religion will not be altered if the practice is taken away.

The petition sought for a ban on the religious practice of circumcision on the ground that it posed several health risks including bleeding, infection, scarring in children. It also cited the impact of trauma caused at a young age that could later affect the cognitive development of the child, as a reason to put an end to the practice.

The petitioners submitted that the United Nations Convention on Rights of the Child, 1989 and the International Covenant on Civil and Political Rights adopted by the UN General Assembly, to which India is a signatory, emphasize on the right of children to live in a secure environment free from any harm or abuse. As signatory to the aforesaid treaties, steps must be taken to protect children from any kind of torture or cruelty or degrading human treatment, the petitioners had urged.

The petitioners had sought for a declaration from the court that the practice of circumcision would amount to a cognizable and non bailable offence. It had also prayed for a direction in the nature of a "recommendation or suggestion or judicial advice" to the State for enactment of a law to prohibit the practice of circumcision on children.

However, the court was of view that the petition was not maintainable. The court referred to a catena of judgements including Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra and Ors. (2007) 14 SCC 281 and Rohit Pandey v. Union of India (2005) 13 SCC 702 to arrive at the conclusion that the writ petition having been filed on the basis of newspaper reports was not maintainable.

Case Title: Non-Religious Citizens (N.R.C) V Union Of India

Citation: 2023 LiveLaw (Ker) 162

Click here to read/download judgment