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Kerala: The Kerala High Court on Friday dismissed a plea seeking ban on non-therapeutic circumcision on children carried out at the behest of parents, and to declare it an illegal and a non-bailable offence [Non-religious citizens & ors. v Union of India].
A division bench consisting of Chief Justice S Manikumar and Justice Murali Purushothaman said that the plea was based solely on newspaper reports and was, therefore, not maintainable.
The Court, while dismission the plea, also said that it is not a law-making body and the petitioner has not substantiated its case.
“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,” the order said.
The plea was filed by a registered cultural organisation, Non-Religious Citizens stating that circumcising children before they attain the age of 18 amounts to blatant violation of their fundamental rights and is also a human rights violation.
Circumcision is the surgical removal of the foreskin, which is the tissue that covers the head of the penis. It is an ancient practice that has its origins in religious rites. It is mandatorily followed by adherents of many Semitic religions including Islam.
The plea said that circumcising children leads to several health problems and risks including trauma for them.
“Trauma in early childhood can result in disrupted attachments, cognitive delays, and impaired emotional regulations,” the plea said.
The plea pointed out various international conventions, which lay down the rights of children such as the United Nations Convention on the Rights of Child and the International Covenant on Civil and Political Rights Adopted by the General Assembly of the United Nation.
“The aforesaid treaties say that no child shall be subjected to torture or other cruel, inhuman, or degrading treatment or punishment. Each member of the covenant is duty bound to ensure that any person whose rights or freedoms recognized in the covenant is violated has an efficient remedy,” the petitioner submitted.
Boys are compulsorily circumcised by way of a unilateral decision taken by their parents, the petition said.
Pertinently, the petitioner claimed that circumcision is not an essential religious practice.
Essential part of a religion means the core beliefs upon which the concerned religion is founded, the petitioner submitted.
“It is the cornerstone of practices upon which the religion is built without which a religion will be no religion. Test to determine whether a part or practice is essential to a religion is to fund out whether the nature of religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion, then such practice could be treated as an essential or integral part,” the petition said.
Circumcision is not such an essential religious practice, it was underlined.
Interestingly, the plea also said that as per several renowned international medical journals, circumcision could lead to loss of sexual function, an increased risk of experiencing delayed orgasm and the female partner has an increased probability of not feeling sexually satisfied.
Besides the above, the plea also highlighted the risk it poses to boys pointing out the recent incident of the death of an infant at Vadanapally in Kerala due to circumcision.
The petitioners contended that the parents cannot impose their religious beliefs about the practice of circumcision on a child before the child has the capacity to provide consent.
Therefore, the petitioners sought a direction from the court to declare the practice of non-therapeutic circumcision illegal.
The petitioners also sought directions to the Central government to frame a law prohibiting the circumcision of children.
However, the Court noted that the plea was based on newspaper reports and the same was not maintainable.
In this regard, the Court discussed a catena of judgments to hold,
“The instant writ petition filed on the basis of newspaper reports is not maintainable.”
The Court, therefore, declined all the reliefs sought by the petitioner and dismissed the plea.
The petitioner was represented by advocates Jeevesh, Sabu M Philip, P Shaheen, and Akash S.
The respondents were represented by Senior Government Pleader KP Harish and Central Government Counsel B Pramod.
