Justice Markandey Katju
There is a controversy regarding banning of sale of meat for 8 days in Bhayander during the Jain Paryushan fasting period.
In this connection my article posted on my blog some time back may be of some interest.
Closing Slaughterhouse on Jain Paryushan festival
I have sometimes been asked which was the most difficult case I found to decide, and my answer usually is: Hinsa Virodhak Sangh vs. Mirzapur Moti Kuresh Jamaat, 2008.
Usually I did not have difficulty in deciding cases, because having spent 40 years in the legal world, 20 years as a lawyer and 20 years as a Judge, I am broadly conversant with legal principles. However, in this case I found it very difficult to make up my mind.
The Senior Judge on the bench, Justice H.K. Sema, had asked me to write the judgment after we had heard arguments and reserved the judgment, but for several weeks I just could not decide what view to take.
The facts of the case were that the Ahmedabad Municipality in Gujarat had for several years passed resolutions for closing down the Municipal slaughterhouse during the 9 days Jain Paryushan festival. Since goats, lamb and other animals could legally be slaughtered only in the Municipal slaughterhouse (for sanitation, hygiene, etc) the result was that for 9 days in a year people of Ahmedabad had to be vegetarians.
The butchers association of Ahmedabad challenged this resolution before the High Court on the ground that it violated their fundamental right of freedom of trade and business guaranteed by Article 19 (1) (g) of the Constitution. The residents of Ahmedabad pleaded that this resolution compelled them to become vegetarians for 9 days in a year, and this violated their right of privacy which had been held to be part of Article 21 in several decisions of the Supreme Court.
Jains are a community who follow the teachings of Lord Mahavir and other ‘Tirthankaras’. They believe in Ahimsa or non-violence, and are strict vegetarians.
The Paryushan festival is perhaps the most important one for Jains. During the 9 days period of the festival Jains do fasting and other spiritual acts e.g. recitation of their scriptures.
There is a large Jain community in Western India e.g. Gujarat, Rajasthan, Western Madhya Pradesh, Delhi etc. For several years the Ahmedabad Municipality had closed its slaughterhouse during Paryushan, and this was now challenged. The High Court allowed the writ petition, and the matter came up on appeal before us in the Supreme Court.
The petitioners before the High Court (respondents before us) alleged that the impugned resolutions of the Ahmedabad Municipality closing down the Municipal slaughterhouse during Paryushan was an unreasonable restriction on the rights of the butchers of Ahmedabad (the writ petitioners) to carry on trade and business in livestock, mutton etc. It was also a violation of the right of non vegetarians to eat meat.
What one eats is part of one’s right to privacy, which by judicial interpretation has been included in Article 21 of the Indian Constitution.
As mentioned above, for several weeks after reserving judgment in the case I could not make up my mind what view to take. There was certainly a case in support of the contentions of the writ petitioners (the butchers and non-vegetarian section of society), which had been upheld by the High Court.
After all, it is one’s personal business what one eats. Why should a non-vegetarian be compelled to become a vegetarian, even if for 9 days? Nobody was compelling the Jains or other vegetarians to become non-vegetarians. Why then should it be vice versa?
This argument at first appealed to my mind. I am a strong votary for freedom, and the impugned resolution seemed to violate the rights of the butchers as well as non-vegetarians.
However, ultimately I decided to uphold the validity of the resolution and reverse the judgment of the High Court.
What persuaded me to do so were these factors:
(1) The restriction was only for a short period of 9 days. Had it been for a longer period, say, for several months, I would certainly have held it to be violative of Articles 19 (1) (g) and 21 of the Constitution.
(2) There is a large Jain community in Western India, including Ahmedabad, and in a country like India with such tremendous diversity of religions, castes, languages, ethnic groups, etc we must respect the feelings of all communities.
(3) The restriction was not a new one, but had been imposed every year for several decades. Reference was made in the judgment to Emperor Akbar and his respect for the Jains.
Taking all these considerations cumulatively we upheld the restriction as being a reasonable one. We referred to the Constitution Bench decision of the Supreme Court in State of Madras vs. V.G. Row, 1952 in which the broad tests for determining reasonableness were indicated. One of the tests laid down therein was whether the restriction was excessive. In the present case we noted that the closure of the slaughterhouse was only for a short duration of 9 days in a year, and hence it was not excessive. We also referred to the decision of the Supreme Court in Government of Andhra Pradesh vs. P. Laxmi Devi, 2008 in which it was held that the court should exercise judicial restraint while judging the constitutional validity of statutes, and the same principle would apply while adjudicating the constitutional validity of delegated legislation.
This blog first appeared on Justice Katju’s official page SATYAM BRUYAT.