The Leaflet

| @theleaflet_in | September 28,2019

IN a significant decision, the Tripura High Court on Friday banned sacrifice or slaughtering of any animal or bird within the precincts of all the temples in the state.

The decision came after a Public Interest Litigation (PIL) filed by one a retired judicial officer against the practice of sacrificing birds and animals, on the basis of superstition, before the Goddess and other Gods at two main temples, Mata Tripureswari Devi Temple and Chatur Das Devata Temple in the state. The order was pronounced by a division bench of the High Court comprising the Chief Justice Sanjay Karol and Justice Arindam Lodh, with a slew of mandatory directions as follows:

  • No person including the State shall be allowed to sacrifice of any animal/bird within the precincts of any one of the temples within the State of Tripura;
  • No person shall sacrifice such animal within the precincts of any of the temples within the State of Tripura;
  • Government of Tripura has proposed the development of Devi Tripuresrwari temple as a favourite international tourist destination. People of all beliefs and faiths are likely to visit in large number. Anyone of the devotees desirous of offering any animal out of personal faith, belief or desire, may do so, but, shall take back the animal and under no circumstance, any activity of animal sacrifice shall be permitted to be carried out. Prudently, the Government can earmark land for an opening shelter home for rearing such livestock.
  • The District Magistrate & Collectors of the respective districts and more specifically, District Magistrate & Collector, Gomati District, Udaipur as also District Magistrate & Collector, West Tripura District, Agartala under whose jurisdictions Devi Tripureswari temple and Chatur Das Devata temple are situated, respectively, shall forthwith take action for ensuring implementation of the orders; The Superintendent of Police of all the districts shall also ensure strict implementation of the order. Such officers shall be personally liable for implementing the orders;
  • The Chief Secretary, Government of Tripura shall also ensure compliance of the order. Also, he shall ensure that at least in two temples, Devi Tripureswari temple and Chatur Das Devata temple in Tripura, CCTV cameras are installed forthwith; every month he shall have a soft copy of such video recording placed on case file.
  • Such video recording of the temple(s) shall form part of the record of the present petition and shall be constituted as part of the record of the appeal preferred, if any, by any person, including the State.
  • District Magistrate & Collectors of all the districts shall initiate all measures of educating and sensitizing the general public of the constitutional mandate and its importance, relevance and significance, more so, of adopting an attitude of love, humanism and compassion towards all animals and birds.
  • The State Government shall give due publicity and also sensitize the general public of the constitutional values and passing of the order and implementation thereof.

 

The issues before the High Court were:

  • Whether the act of the State in offering an animal for sacrifice in the Temples in Tripura, can be said to be a secular activity and as to whether prohibiting the same would infringe the Fundamental right, as envisaged under Article 25(1) of the Constitution of India?
  • Whether the age-long practice of 500 years of sacrificing animals, after stoppage of the practice of human sacrifice, in Tripureswari Devi Temple, Udaipur, Gomati District, Tripura can be construed as an essential and integral part of religion, as protected under Article 25(1) of the Constitution of India? And as a corollary ―
  • Whether a religious practice based on a ritual, custom, tenet, tradition, not being an essential part of religion, can be allowed to continue notwithstanding the provisions of the Prevention of Cruelty to Animals Act, 1960 (hereinafter referred to as „the Prevention Act‟) and Article 21(Part – III) & Article 48, 48A and 51A(g) (Part IVA) of the Constitution of India?

 

Answering the first question, the High Court held “the State by an enactment can only regulate or restrict any economic, financial, political or secular activity which may be associated with religious practice. The role of the Government in regular activities of the temple is limited to such religious activities which are secular in nature. Act of the State of offering one goat every day, for a sacrifice in the Mata Tripureswari temple and other temples on certain occasions, lacks the essence of economic, commercial, political or secular character and hence, the action of the State in offering such an animal for sacrifice is neither permissible under the Indian Constitution nor any statute”.

It added, “The right of offering an animal for sacrifice is not an integral and essential part of the religion, protected under Article 25(1) of the Constitution. As such, no right of the freedom of professing any religion by the State can be said to have been violated. The state has no religion other than constitutionalism and the expression person‘ under Article 25 has to be in reference to a natural person (Sabarimala). Withdrawal of such practice would not tantamount to any change, fundamental in character of the religion”.

On the second issue framed by the High Court, it held “The age-long practice of a sacrifice of animal, either by the State or by an individual, cannot be said to be an essential part of the religion and as such, is not protected under Article 25(1) for it being against the principle/doctrine of morality and health, as also provisions of the Prevention of Cruelty to Animal Act, 1960. Right to freedom of religion is subject to the rigours of public order, morality, health and the other provisions of Part-III. The sacrifice of an animal in a temple, not being an essential part of religion, is also violative of Article 21 of the Constitution of India.”

On the last issue, HC held “Constitutional values are to be embraced and not to be superseded by personal beliefs. Religious practice, not being an integral and essential part of religion cannot override the provisions, specifically Section 3 of Prevention of Cruelty to Animal Act and other provisions of Part III, Part IV and Part IVA of the Constitution. Section 28 of the Prevention Act merely makes a killing for a religious purpose not a punishable crime and more so in the light of the Article 25 does not make it permissible to commit such acts in the temple. Section 28 of the Prevention Act has to be interpreted in the light of Article 21, 48, 48A, 51A(g), 51A(h) and 51(A)(i) of the Constitution”

 

The petitioner had argued that at Mata Tripureswari Devi Temple, under the patronage of district administration, Government of Tripura, every day one goat is being sacrificed and on special occasions ―a substantial number of animals are being sacrificed as ―Bali‖(offering to the Goddess) by the general public. Such animals are buffalos, goats, pigeons etc. and orally argued that at the Chatur Das Devata Temple, there are such offerings by the State on particular days of the month.

“Slaughtering of animal in the name of ―Bali (sacrifice) is a practice in the nature of social evil and against the Constitutional mandate and spirit. Such practice has a traumatic effect both on the animal and the viewer”, the petitioner said.

On the other hand, state government while questioning the locus standi of the petitioner, submitted that since long Hinduism accepted such practice and sentiments of the sect of large Hindu culture involves such sacrifices of the goats, pigeons, buffaloes etc. before the Goddess. Petitioner has failed to consider such public sentiment of long religious profess and practice. The practice of animal sacrifice is as per the ―long-accepted procedure of Hindu rituals of the Tantrik method of worship of the Dash MahaVidya‖, i.e. ten forms of the goddess of the Hindus.

State government also alleged that the petition was motivated inasmuch as petitioner had confined the issue of animal sacrifice only with regard to Hindu religion and not laid any challenge to the practice of animal sacrifice carried out by the Muslim community during their festival of Bakri Eid and that petition has been filed ―only to disturb the Hindu sentiment and presumably by anti Hindu elements with a view to disturb public order and as such is politically motivated.

The High Court noted, “every human activity in the name of religion was not intended to be protected under Article 25 and Article 26 of the Constitution. Though every individual is entitled to freely perform its religious practices, but every religious practice cannot be safeguarded by Article 25 and only those practices which are integral and essential part of the religion are safeguarded”.

“The Constitution calls upon every citizen of India to exhibit compassion for all living creatures and develop a temper of humanism towards all wildlife. An overall view of bare reading of the provisions would thus exhibit that the framers of the Constitution had desired to inter alia, develop a spirit of compassion and humanism, abjure violence and also exhibit the same towards all living beings”, said the High Court.

 

 

Right to life extends to all living beings

 

 

Notably, the High Court observed that the Right to life, as has been held by the Apex Court in Animal Welfare Board of India Vs. A Nagaraja and Ors., (2014)7 SCC 547 (2 Judge Bench) [as affirmed in Chief Secretary to the Government, Chennai, Tamil Nadu and Ors Vs. Animal Welfare Board and Anr.,(2017) 2 SCC 144 (2 Judge)], now stands extended to all living beings, thus the expression ―person‖ has to be read contextually.

Hence, according to the High Court, the life of an animal cannot be deprived, save and except, in accordance with the procedure established by law. “What is that procedure established by law, now stands succinctly explained by the Constitution Bench (7 Judges) in Maneka Gandhi Vs. Union of India & another, (1978) 1 SCC 248 which means due process of law”, the High Court said.

“The word ―lifein Article 21 of the Indian Constitution is wide enough to include every living organism be it humans, animals, insects or bird. Deprivation of life has to be as per the procedure established by law”, the High Court asserted.

Sacrificing of animal and taking away of their life, according to the High Court, also has to be in accordance with due process of law.

The High Court held “only such practices can avail protection under Article 25(1) which amounts to an essential and integral part of religion. It relied upon the apex court’s decision in Jallikatucase to say that animals also have a life which also has to be protected under the purview of the said Article.

 

Custom or usage not protected if it violates human rights

 

The High Court held “any custom or usage irrespective of any proof of their existence in the pre-constitutional days cannot be construed to be a source of law to claim any right when it is found to be violative of human rights which, in our considered view, would also include the right of animal to live with dignity. Further, no usage found to be pernicious and considered to be in derogation of law or opposed to public policy or social decency can be accepted or upheld by the courts under the Indian Constitution.

 

Animal sacrifice not part of essential religious practice 

 

On the issue of whether the animal sacrifice constituted part of essential religious practice, the High Court heldHinduism includes Buddhist, Sikhs, Jainism and not every religion of Hinduism considers the sacrifice of an animal to bean integral and essential part of the religion. Buddhist and Jain do not believe in killings as they believe in preaching Ahimsa‖- nonviolence towards all living beings. Hence it stands contrary to the view taken by the State where it says that sacrifice of an animal is part and parcel of the religion of Hinduism which involves a tantric method of worship, as, not every sect or follower of the religion of Hinduism follows sacrifice of animals in worshipping the deity”.

“Major section of the community may believe in carrying out such practice in the name of religion but simultaneously, rights of co-religionists must be protected so as ensure that it does not hurt their sentiments. Rights of all have to be construed and harmonised as stands explained in Sabarimala case and TilkayatShriGovindlaljiMaharaj Vs. State of Rajasthan case”, said the High Court.

The High Court went on to say “here majoritarian view confined to the people of the region cannot be allowed to prevail upon the principle of constitutional morality—an act not sanctified by law, itself being based on a belief, abhorrent and violent in the changing times of a civilized society”.

 

Court has to be guided by constitutional morality

 

Relying upon the Supreme Court’s decision in Navtej SinghJohar v. Union of India (Section 377 case), the High Court said, It is expected from the courts as the final arbiter of the Constitution to uphold the cherished principles of the Constitution and not to be remotely guided by majoritarian view or popular perception. The Court has to be guided by the conception of constitutional morality and not by the societal morality”.

 

Religious freedom is subject to health

 

The High Court said that religious freedom is subject to health. One cannot, according to the High Court, deny the fact that the sacrifice of an animal in the temple does affect the mental and physical health of an individual. It is the duty of a State to provide legal safeguards to protect individuals‘ life and to maintain the good health of the community.

“The blood of the animals are allowed to flow in the open drains, as a result, causing foul smells. Also, it gets contaminated in the open drain, resulting into an increase of diseases thus adversely affecting the health of the public at large, more so the residents of the area. Places of worship are considered as most sacred, holiest and cleanliest where people can peacefully connect to its creator. With the blood of animals sprinkled around on the ground and the severed heads of the animals stocked in front of the deity, the view remains frighteningly dirty, leaving an impression of deficiency of holiness and peacefulness”, the High Court noted.

Dwelling on the recognition of basic rights of animals, it said, “the animals have basic rights and we have to recognise and protect them.”

“Animals and birds breathe like us. They are also creation of God. They have also a right to live in harmony with human beings and the nature. Animal sacrifice is one of the most diabolical form of cruelty inflicted on animal can be no rationalization behind sacrificing animals in full public view and several time it has been seen that untrained and unskilled butchers give blows to animals. Many a times the animal is not even killed in one blow, thereby leaving the animal smock and in extreme pain and suffering”, the High Court observed.

 

Read the order:

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