The court dismissed a writ petition seeking declarations against child circumcision, holding that a petition based solely on newspaper reports without verified facts is not maintainable, and that the court cannot legislate or grant the reliefs sought.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
FRIDAY, THE 24TH DAY OF MARCH, 2023 / 3RD CHAITHRA, 1945
WP(C) NO. 4484 OF 2023
PETITIONERS:
BY ADVS. SRI. P.V.JEEVESH SRI. SABU M. PHILIP SRI. P.SHAHEEN SRI. AKASH S.
RESPONDENTS:
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BY ADV. SHRI B. PRAMOD, CGC BY SENIOR GOVERNMENT PLEADER SRI. K.P.HARISH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
S. Manikumar, CJ
Claiming to be a registered cultural organisation and social activists in Kerala, instant writ petition is filed by the petitioners, being aggrieved
by the practice of circumcision against children. The reliefs sought for are as under:
that, petitioners invite the attention of this Court to an issue of blatant violation of fundamental rights of the children. According to the petitioners, practice of circumcision is a human rights violation against
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children. The first petitioner is a registered cultural organization in Kerala, which stands for rationalism, humanism, scientific temper and the spirit of enquiry and reform.
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procedure, but not in the case of children.
“ Article 2. 1 - Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
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remedy; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.
PART III
Article 7 . No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”
7. Relevant portions of Exhibit-P3 International Convention on
Rights of the Child, 1989, relied on by the petitioners, are reproduced hereunder:
“Article 2.2- States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.
Article 4 - States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention.
Article 16 - 1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.
2 - The child has the right to the protection of the law against such interference or attacks.
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Article 19.1 - States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation.”
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transgressing into the field of the legislature. In support of the same, petitioners have relied on Exhibit-P5 International Convention viz., Beijing Statement of Principles of Independence of Judiciary in the LAWASIA region, to which India is a signatory.
A. The circumcision of children leads to several health problems. One of them is trauma. A traumatic event is one
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that threatens injury, death, or the physical integrity of self or others and also causes horror, terror, or helplessness at the time it occurs. Trauma in early childhood can result in disrupted attachment, cognitive delays, and impaired emotional regulation. The human brain is designed to sense, process, and store information from both the external and internal environment. All of these complex systems and activities work together for one overarching purpose-survival. Neurons are the building blocks of the brain. During development, neurons create networks that link to create systems. These systems are the means by which the brain regulates all functions. Brain functions are organized from the most simple to the most complex. The development of these functions is sequential, meaning prior events impact future development. Exposure to chronic, prolonged traumatic experiences has the potential to alter children's brains, which may cause longer- term effects in areas such as :-
A. Attachment: Trouble with relationships, boundaries, empathy, and social isolation.
B. Physical Health: Impaired sensorimotor development, coordination problems, increased medical problems, and somatic symptoms.
C. Emotional Regulation: Difficulty identifying or labeling feelings and communicating needs.
D. Dissociation: Altered states of consciousness, amnesia, impaired memory.
E. Cognitive Ability: Problems with focus, learning, processing new information, language development, planning and orientation to time and space.
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F. Self-Concept. Lack of consistent sense of self, body image issues, low self-esteem,shame and guilt.
G. Behavioral Control: Difficulty controlling impulses, oppositional behavior, aggression, disrupted sleep and eating patterns, trauma re-enactment. Many of the reactions displayed by children and adolescents who have been exposed to traumatic events are similar or identical to behaviors that mental health professionals see on a daily basis in their practice. These include:
H. The development of new fears
I. Separation anxiety (particularly in young children)
J. Sleep disturbance, nightmares
K. Sadness
L. Loss of interest in normal activities
M. Reduced concentration
N. Decline in school work
O. Anger
Q. Irritability.
P. Somatic complaints
The other risks or complications related to circumcision are as follows:
These complications include but are not limited to the following: 1. Slight oozing or bleeding. 2. Penile infection. 3. Irritation of the exposed tip of the penis 4. The urethra, which leads from the bladder to the tip of the penis, can be damaged at its point of exit. 5. Scarring of the penis can occur 6. Unintended removal of the outer skin layer of the penis and 7. Serious, life-threatening bacterial Infections can occur.
B. The foreskin is a complex structure that protects and moisturizes the head of the penis, and, being the most densely innervated and sensitive portion, it is essential to provide the complete sexual response. Circumcision is
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painful surgery that risks serious physical injury, psychological sequelae, and death. Men rarely volunteer for it, and increasingly circumcised men are expressing their resentment about it. Circumcision is usually performed for religious, cultural and personal reasons. Early claims about its medical benefits have been proven false. The American Academy of Pediatrics and the Centers for Disease Prevention and Control have made many scientifically untenable claims promoting circumcision that run counter to the consensus of Western medical organizations.
C. In 2012, a German court held that circumcision constitutes criminal assault. Under existing United States law and international human rights declarations as well, circumcision already violates boys' absolute rights to equal protection, bodily integrity, autonomy, and freedom to choose their own religion. Every child has a right to bodily integrity. To sever healthy tissue from an infant/child is unethical and a human rights violation. The circumcision is being done on a minor boy without his consent. Someone's consent is being given solely for religious reasons. Non-therapeutic child circumcision is a human rights violation. Circumcising a child is an unnecessary violation of his bodily integrity as well as an ethically invalid form of medical violence. Male circumcision is not mentioned in any of the authoritative texts of Islam like the Quran or Hadiths. According to Islamic scholars, male circumcision is not an essential religious practice.
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D. The international law emphasizes that all children have the right to live in a secure, loving environment, free from harm, abuse and discrimination. One of the legislative intentions of the international Conventions is to create an atmosphere of independent and individual growth and development, mentally and physically, of a child, untrammeled by any external force like religion, traditional practice, interests of the parents etc.
E. The constitutional morality is the basic principles encapsulated in the Constitution. The laws and principles in connection with the concepts of "equality" are part of constitutional morality. The principle enunciated under Article 15(1) is one of the basic principles of constitutional morality. Article 15(1) states that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. The practice of circumcision is being done on the children, who belong only to the Islamic religion. Therefore, this practice is a violation of the fundamental right under Articles 14 and 15 (1) of the Constitution. The exercise of right postulated under Article 25 is subject to public order, morality, health and other fundamental rights (including Article 14-right to equality), thus, Article 14 should be given preference over Article 25.
F. Every individual has the right to religious freedom. An individual has the right to follow or not follow a particular religion. Thus, parents cannot impose their religious
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beliefs that have harmful implications on a child. Where parents fail in their duty that not to perpetrate torture or inhuman treatment of acts like genital mutilation, the states must intervene. If, as a guardian of the constitution, the state machinery fails to protect the rights of children, the constitutional courts are bound to intervene. The practice of circumcision on the children with or without their consent is a violation of the children's right of "right to life", a fundamental right, under Article 21 of the constitution of India.
G. The right to human dignity is a basic human right, which is recognized by most of the international legal documents, which comes under the right to life postulated under Article 21 of the Constitution of India. This right to human dignity has many elements. First and foremost, human dignity is the dignity of each human being 'as a human being'. Another element, which needs to be highlighted, in the context of the present case, is that human dignity is being infringed upon if a person's life, physical or mental welfare is alarmed. It is in this sense that circumcision is a torture which infringes on the child's right to dignity.
H. The right to privacy is an element of human dignity. A child also has the right to privacy. The sanctity of privacy lies in its functional relationship with dignity. Privacy ensures that a human being can lead a life of dignity by securing the inner recesses of the human personality from
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unwanted intrusion. Privacy recognizes the autonomy of the individual and the right of every person to make essential choices which affect the course of life. In doing so privacy recognizes that living a life of dignity is essential for a human being to fulfill the liberties and freedoms which are the cornerstone of the Constitution.
I. This custom is not an essential religious practice. The essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices that the superstructure of a 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 find out whether the nature of the 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 or in its belief, then such part could be treated as an essential or integral part.
J. There are certain studies cited in support of male circumcision for varied health reasons like preventing HIV. Most of these are made in a particular case where such conditions are more prevalent like in the African continent. But none of the developed countries or official scientific bodies recommend it as a prophylactic measure for preventing any such diseases in a general population. Moreover, "WHO" itself states that, "routine neonatal
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circumcision is not currently recommended on medical grounds.”
K. circumcision leads to loss of sexual function. If a man is circumcised, he faces an increased risk of experiencing delayed orgasm, and his female partner has an increased risk of not feeling sexually fulfilled. These findings have been endorsed by several renowned international medical journals. In support of the above contentions, petitioners have relied on the decision of the Hon'ble Apex Court in Vishaka v. State of Rajasthan [(1997) 6 SCC 241]. Therefore, this court, by standing within its own limits of jurisdiction, without transgressing into the field of the legislative body, for the enforcement of human rights necessary direction can be issued.
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(i) In Laxmi Raj Shetty and Another v. State of Tamil Nadu [(1988) 3 SCC 319], at paragraphs 25 and 26, the Hon'ble Supreme Court held as under:
"25. ............ We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspapers is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspapers report cannot be treated as proved of the facts reported therein.
"A newspaper report without any further proof of what had actually happened through witnesses is of no value. It is at best a second-hand secondary evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news
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items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible."
We need not burden the judgment with many citations. There is nothing on record to substantiate the facts as reported in the newspapers showing recovery of the stolen amount from the residence of Appellant 2 at Mangalore. We have therefore no reason to discard the testimony of PW 50 and the seizure witnesses which go to establish that the amount in question was actually recovered at Madras on the 29th and the 30th as alleged."
(ii) In S.A. Khan v. Ch. Bhajan Lal and Another [(1993) 3 SCC 151: AIR 1993 SC 1348], at paragraph 22, the Hon'ble Supreme Court held as under:
"22. In the present case, no evidence has been let in proof of the statement of facts contained in the newspaper report. The absence of any denial by Ch. Bhajan Lal will not absolve the applicant from discharging his obligation of proving the statement of facts as appeared in the Press report. In fact, Ch. Bhajan Lal in his counter affidavit has taken a stand that the statements attributed to him based on the newspaper report are mere hearsay and cannot in law be relied upon for the purpose of initiating such proceedings. Therefore, in the absence of required legal proof, the Court will not be justified in issuing a suo motu notice for contempt of court."
(iii) In Ravinder Kumar Sharma v. The State of Assam and Ors ., [AIR 1999 SC 3571], at paragraph 25, the Hon'ble Supreme Court held as under:
"25. Newspaper reports regarding the Central Government decision could not be any basis for the respondents to stop action under the Assam Control Order of 1961. The paper reports do not specifically refer to the Assam Control Order, 1961. In fact, Government of Assam itself was not prepared to act on the newspaper reports, as stated in its
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wireless message. Section 81 of the Evidence Act was relied upon for the appellant, in this behalf, to say that the newspaper reports were evidence and conveyed the necessary information to one and all including the respondents 2 and 3. But the presumption of genuineness attached under Section 81 to newspaper reports cannot be treated as proof of the facts stated therein. The statements of fact in newspapers are merely hearsay Laxmi Raj Setty v. State of Tamil Nadu [1988CriLJ1783]."
(iv) In Vikas Vashishth v. Allahabad High Court [ (2004) 13 SCC 485], the Hon'ble Supreme Court held as under:
"4. At the very outset, we put it to the petitioner that a bare perusal of the petition shows that it is based entirely on newspaper reports and asked him whether before filing the petition he has taken care to verify the facts personally. His answer is in the negative. In the writ petition all the 21 High Courts have been included as respondents and Union of India has also been impleaded as the 22nd respondent. We asked the petitioner what has provoked him to implead all the High Courts as respondents and he states that it is his apprehension that similar incidents may occur in other High Courts though there is no factual foundation for such appreciation.
(v) In Rohit Pandey v. Union of India reported in (2005) 13 SCC 702, Hon'ble Supreme Court held as under:
"1. This petition purporting to be in public interest has been filed by a member of the legal fraternity seeking directions against the respondents to hand over the investigation of the case pertaining to recovery of light machine gun, which is said to have been stolen from the army according to reports published in two newspapers, to
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the Central Bureau of Investigation for fair investigation to ensure that the real culprits who are behind such theft of army arms and ammunition endangering the integrity and sovereignty of the country may be brought to book and action may be taken against them in accordance with law. The only basis for the petitioner coming to this Court are two newspaper reports dated 25-1-2004, and the other dated 12-2-2004. This petition was immediately filed on 162-2004 after the aforesaid second newspaper report appeared. On enquiry from the learned counsel, we have learnt that the petitioner is a young advocate having been in practice for a year or two. The Union of India, the State of Uttar Pradesh and the Chief Minister of the State of Uttar Pradesh, have been arrayed as party respondents. In the newspaper reports, there is no allegation either against the Union of India or against the Chief Minister.
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petitioner is a young advocate, we feel that the ends of justice would be met and the necessary message conveyed if a token cost of rupees one thousand is imposed on the petitioner "
(vi) In Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra and Ors. [(2007) 14 SCC 281], the Hon'ble Supreme Court held as under:
“18. Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. (See State of Maharashtra v. Prabhu (1995) ILLJ 622 SC, and Andhra Pradesh State Financial Corporation v. GAR Re-Rolling Mills and Anr. [1994] 1 SCR 857. No litigant has a right to unlimited draught on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. [See Dr. B.K. Subbarao v. Mr. K. Parasaran (1996 CriLJ 3983)]. Today people rush to Courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in Courts and among the public.
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evidence. A petition based on unconfirmed news reports, without verifying their authenticity should not normally be entertained. As noted above, such petitions do not provide any basis for verifying the correctness of statements made and information given in the petition. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs as afore-stated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts.”
Court is not a law making body. Prayers 2 to 4 sought for by the petitioners cannot be granted.
In view of the above, prayer No.5 sought for is also declined. In fine, writ petition is dismissed.
Sd/-
S. MANIKUMAR CHIEF JUSTICE
Sd/-
MURALI PURUSHOTHAMAN JUDGE
Krj
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APPENDIX
PETITIONER EXHIBITS
RESPONDENTS' EXHIBITS:- “NIL”
//TRUE COPY//
P.A. TO C.J.
2 issues framed by the court
Whether a writ petition seeking a declaration that non-therapeutic circumcision of children is illegal, based on newspaper reports and unsubstantiated claims, is maintainable as a public interest liti
Whether the court can issue directions for legislation or declare practices criminal without legislative backing.
Colour shows how this judgement treated each authority
Vishaka v. State of RajasthanRelied on
(1997) 6 SCC 241 · Who else cites this
Laxmi Raj Shetty and Another v. State of Tamil NaduReferred
(1988) 3 SCC 319 · Who else cites this
Samant N. Balakrishna v. George Femandez and Ors.Referred
(1969) 3 SCR 603 · Who else cites this
S.A. Khan v. Ch. Bhajan Lal and AnotherReferred
(1993) 3 SCC 151 : AIR 1993 SC 1348 · Who else cites this
Ravinder Kumar Sharma v. The State of Assam and Ors.Referred
AIR 1999 SC 3571 · Who else cites this
Vikas Vashishth v. Allahabad High CourtReferred
(2004) 13 SCC 485 · Who else cites this
Rohit Pandey v. Union of IndiaReferred
(2005) 13 SCC 702 · Who else cites this
Holicow Pictures Pvt. Ltd. v. Prem Chandra Mishra and Ors.Referred
(2007) 14 SCC 281 · Who else cites this
State of Maharashtra v. PrabhuReferred
(1995) ILLJ 622 SC
Andhra Pradesh State Financial Corporation v. GAR Re-Rolling Mills and Anr.Referred
(1994) 1 SCR 857 · Who else cites this
4 provisions across 1 enactments
Non-Religious Citizens (N.R.C)
T. M. Arif Hussain
Noushad Ali
Shahul Hameed
Yasin N.
K. Abdul Kalam
S. Manikumar
Murali Purushothaman
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
