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Is Meat Ban Citing Religious Sentiments Constitutional?

Shaivika Agrawal
7 April 2022 3:39 AM GMT
Is Meat Ban Citing Religious Sentiments Constitutional?
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The ban must pass the tests of proportionality and reasonableness evolved by the Supreme Court in Puttaswamy judgment.

The Indian term "non-vegetarian" for meat eating is reflective of the popular perception that vegetarian food is the norm and meat eating is an aberration. It is a different thing that statistics show majority of Indians to be meat eating. The controversy related to meat-eating in the Indian context largely emanates from religion than from health concerns. Recently, the Mayor of...

The Indian term "non-vegetarian" for meat eating is reflective of the popular perception that vegetarian food is the norm and meat eating is an aberration. It is a different thing that statistics show majority of Indians to be meat eating. The controversy related to meat-eating in the Indian context largely emanates from religion than from health concerns. Recently, the Mayor of the South Delhi Municipal Corporation kicked up a row with an appeal to close meat shops during the 9-day fasting period for Navratri. Though a legally enforceable order to that effect is yet to be issued, the Mayor's appeal has created enough confusion and controversy. Will such an order imposing meat ban citing religious reasons be constitutionally valid?

Fundamental Right to Profession-

Majorly, there are two aspects of law that are encroached upon with meat ban- one is the fundamental right to trade and livelihood and second, the fundamental right to food.

Article 19(1)(g) of the Constitution states that all citizens shall have the right to practise any profession, or to carry on any occupation, trade or business. This right is subject to Article 19(6) which says that the State can impose reasonable restrictions on the exercise of the right through a law in the interests of the general public. The question here would be whether the interests of the general public should mean the sentiments of a section of the population.

In a plethora of judgments, the Court has laid down the test to determine the reasonability of restrictions. It has held that for a restriction to be valid, it must have a direct and proximate nexus with the object which the legislation seeks to achieve and the restriction must not be in excess of that object i.e., a proportionate balance has to be maintained. While noting that the judges should base their decision not on the social morals but as per the Constitution, the Supreme Court in State of Madras vs. V.G. Row held that in forming their own conception of what is reasonable, the judges must be guided by a sobering reflection that the "Constitution is meant not only for people of their way of thinking but for all…".

In Mohd. Faruk vs. State of M.P., while holding a Municipality's ban on slaughter of bulls to be illegal, a 5-judge bench of the Supreme Court observed :

"The sentiments of a section of the people may be hurt by permitting slaughter of bulls and bullocks in premises maintained by a local authority. But a prohibition imposed on the exercise of a fundamental right to carry on an occupation, trade or business will not be regarded as reasonable, if it is imposed not in the interest of the general public, but merely to respect the susceptibilities and sentiments of a section of the people whose way of life, belief or thought is not the same as that of the claimant".

In 2004, a 2-judge bench of the Supreme Court in Om Prakash & Others vs State of Uttar Pradesh upheld the prohibition of sale of eggs in Rishikesh, Haridwar and Muni ki Reti. The plea was filed by the hotel owners residing in the cities citing their right to profession under Article 19(1)(g). The Court held that the ban formed a reasonable restriction under Article 19(6) and said that since trade of food items were unrestricted in adjoining towns and villages, hence there was "no substantial harm caused to those engaged in such trade". Interestingly, the Court also cited Article 51A which provides for the citizen's fundamental duties. The Court's decision was based on the fact that these were pilgrimage places and that the ban had been in existence for a long period, over 5 decades. 

The Court observed :

"The reasonableness of complete restriction imposed on trade of non-vegetarian food items has, therefore, to be viewed from the cultural and religious background of the three municipal towns....

Geographical situation and peculiar culture of the three towns justify complete restriction on trade and public dealing in non-vegetarian food items including eggs within the municipal limits of the towns"

Fundamental Right to Food-

Our Constitution does not explicitly provide for the fundamental right to food. But the same is read under Article 21. In 1958, the Constitution bench of the Supreme Court for the first time, in the matter of Mohammed Hanif Qureshi discussed the aspect of right to food. In it, while the Court upheld the ban on cow slaughtering, it also considered the nutritional needs, and partially allowed the slaughter of bovines noting that for a large section of the poorer people, consuming beef and buffalo flesh was a matter of "necessity". However, the Supreme Court in State of Gujarat v. Mirzapur Moti Kureshi, overruled Qureshi judgment saying that since only a small number of Indians ate beef, it could be banned.

The argument to uphold a restriction on the ground that since only a small number of population is affected is legally impermissible now. The Supreme Court in the landmark ruling of Navtej Johar ( which decriminalized consensual homosexaul relations) had held that if a law violates the citizen's fundamental rights, it does not matter how many are affected and noted that "constitutional morality always trumps any imposition of a particular view of social morality by shifting and different majoritarian regimes".

The right to food has now been recognized as part of one's fundamental right to privacy under Article 21. In 2017, the nine-judge bench of the Supreme Court in Puttaswamy case, unanimously declared the privacy to be a fundamental right and held that "it is a fundamental and inalienable right and attaches to the person covering all information about that person and the choices that he/she makes. It protects an individual from the scrutiny of the State in their home, of their movements and over their reproductive choices, choice of partners, food habits, etc."

The Apex Court on various occasions has discussed the aspect of right to food.

  • In 2008, while deciding the constitutional validity of closing slaughterhouse for 9-days during a Jain festival in Ahmedabad, the a 2-judge bench of the Court held that "a large number of people are non-vegetarian and they cannot be compelled to become vegetarian for a long period. What one eats is one's personal affair and it is a part of his right to privacy which is included in Article 21 of our Constitution". However, the Court upheld the 9-day ban observing that "it is a short restriction for a few days and surely the non-vegetarians can remain vegetarian for this short period. Also, the traders in meat of Ahmedabad will not suffer much merely because their business has been closed down for 9 days in a year." Though the Court observed that the closure of meatshops for a considerable long time will infringe the right to trade and livelihood and will leave several workmen unemployed, it upheld the restriction on a subjective notion that a 9-day closure is not a substantial injury. It is doubtful if this approach of the 2-judge bench will pass the muster of doctrine of proportionality as evolved by the Supreme Court in Modern Dental College and Puttaswamy cases. Interestingly, after retirement, Justice Markandeya Katju, who authored the judgment, said that he had doubts about the correctness of that verdict.
  •  In 2015, the Supreme Court while refusing to interfere with the Bombay High Court decision staying the order of prohibiting the sale of meat during a Jain festival remarked that the meat ban cannot be forced down people's throat and that such matters must be handled with tolerance and compassion.
  •  In 2018, the Supreme Court in a PIL seeking ban on export of meat, orally remarked "Do you want everybody in this country to be vegetarian?...We can't issue an order that everyone should be vegetarian."
  • Similarly, in 2020, the Supreme Court commented while hearing a plea to ban Halal meat "Tomorrow you will say nobody should eat meat? We cannot determine who should be a vegetarian and who should be a non vegetarian".

Even our High Courts have not shied away from upholding one's right to food as paramount.

  •  In 2016, the Bombay High Court struck down certain amendments to the Maharashtra Animal Preservation Act 1976 relating to beef ban and held that "as far as the choice of eating food of the citizens is concerned, the citizens are required to be let alone especially when the food of their choice is not injurious to health….The State cannot make an intrusion into his home and prevent a citizen from possessing and eating food of his choice."
  • In 2017, the Allahabad High Court held that the right to choice of food falls within the fundamental right to food and eating food of choice, be it meat, is an aspect of Right to Food. "Thus, it is the private life of an individual that is also affected who may desire to have such foodstuffs as his private choice of consumption", the Court observed while dealing with a challenge to crackdown on slaughter houses.
  • In 2021, the Uttarakhand High Court orally observed that matter of banning meat concerns the fundamental rights of citizen and that that India is a country where 70% of the population eats non-vegetarian food, and hence a meat ban is not a majority versus minority issue.
  • Similarly, the Gujarat High Court came down heavily on the Ahmedabad Municipal Corporation while dealing with the plea of street vendors following the seizure of their carts on account of ban on sale of non-vegetarian items and said "How can you decide what I eat outside? Tomorrow you will decide what I should eat outside the house? Call the corporation commissioner and ask him what he is doing. Tomorrow they will say I should not have sugarcane juice because it causes diabetes? Or coffee (because it) is bad for health?"

It is quite evident that the clamour for meat ban is mostly aimed at making political gains by triggering religious sentiments.  A ban on meat-shops, which does not serve any larger public purpose other than catering to the sentiments of a section, will amount to forcing all sections of society to follow the beliefs and observances of a particular group. Such a ban, imposed solely solely on the ground of religious sentiments, and which infringes the fundamental rights under Article 19 and 21, falls foul of the post-Puttaswamy tests of proportionality and reasonableness evolved by the Supreme Court.

 


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