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Religious Beliefs; Closure Of Meat Shops And Article 19(1)(g) Of The Constitution Of India

N S Babitha
28 March 2021 5:47 AM GMT
Drafting Committee

Constitution of India

The emergence of IT companies and MNCs resulted in the rise in population in Gurugram, Haryana which prompted the establishment of the Municipal Corporation of Gurugram (MCG). The MCG, a Government body formed by the Haryana State Government was established under the provisions of the Haryana Municipal Corporation Act, 1994. The MCG is envisioned to oversee the basic needs of the citizens' welfare and also work towards the development of infrastructure for the betterment of the people.

The MCG in its House meeting held on 18 March 2021, unanimously voted in favour of imposing a closure of meat stops every Tuesday citing religious sentiments. The Agenda of the 18 March 2021 meeting was the enhancement of the license fee from Rs 5000 to Rs10000 and to nail down illegal meat shops. Though the decision to close meat shops on Tuesday was not on the agenda, the unplanned decision was agreed upon and implemented impetuously. Having undergone a loss in recent times due to the pandemic and the avian influenza panic the Corporation's decision to close meat shops on Tuesday has been attracting flak from the stakeholders.

This decision of the MCG raises Constitutional dissension as the corporation (MCG) constitutes 'State' under Article 12 of the Indian Constitution. The particular direction given out by the MCG brings into question a citizen's right "to practice any profession or to carry on any occupation, trade or business" as expressly provided under Article 19(1)(g) of part III of the Indian Constitution. As we understand, no right under part III of the Constitution is absolute and free from limitations. Therefore, Art 19(6) of the Constitution, permits the State to impose reasonable restrictions in the 'interest of the general public. A citizen can enjoy the rights mentioned under Art 19(1)(g) subject to reasonable restrictions provided under Art 19(6).

The State's discretion to restrict the sale of meat by ordering the closure of shops on a particular day of the week gives rise to contentions regarding the Constitutional validity of the order. The issue presently is to understand whether the State's discretion to pass such an order is within the 'reasonable restrictions' as laid down under Art 19(6). Presently, the construction of Art 19(1) (g) suggests that a citizen has the right to practice any profession or to carry on any occupation, trade or business (POTB). An understanding of the terms used under Art 19 (1) (g) and Art 19(6) with relation to the present case would offer solutions to the current problem.

To determine firstly if a person owning a meat shop is guaranteed the right under Art 19(1)(g), it is pertinent to decide whether meat sales/meat shops constitutes 'profession', 'occupation', 'trade' or 'business', because only if it constitutes any one of these will he/she enjoy protection under art 19(1)(g). As provided under section 329 of The Haryana Municipal Corporation Act, 1994, the sale of meat is termed as a 'trade' that requires a license from the Municipal Commissioner. The Supreme Court's (SC) decision in Hinsa Virodhak Sangh v Mirzapur Moti Kuresh Jamat is a precedent to be followed. A two-Judge Bench of the Supreme Court chaired by Justice Markandey Katju and Justice H. K.Sema held in this case that butchers have a right to practice their 'trade' of meat selling as provided under Art 19(1) (g) of the Indian Constitution and "selling meat was a trade guaranteed to a citizen under Art 19(1) (g)...". Therefore in the present case, it is implied that owners of meat shops have a right to carry on 'trade' under Article 19(1) (g) of the Indian Constitution.

Once established that meat shops function as a 'trade', the question of whether the MCG is justified to prohibit the sale of meat on a particular day of the week is the second question to be answered.Therefore whether the order passed by MCD falls under 'reasonable restriction', 'in the interests of the general public' under Art 19(6) is to be examined. As laid down in Anuradha Bhasin v Union of India, the Supreme Court has held that the restrictions laid down under article 19 have to be tested on the anvil of the test of proportionality and that the Articles 19 and 21 of the Constitution mandate that any 'State action' should satisfy five important criteria, which are : (a) State actions to be backing by a 'law', (b) legitimacy of purpose, (c) A rational connection of the act and object, (d) The necessity of the action, and finally (e) when the above four are established, then the test of proportionality.

The present order of the MCG, ordering the closure of meat shops citing 'religious sentiments associated with non-consumption of meat on Tuesdays does not pass the test of proportionality. The Supreme Court has observed in Hinsa Virodhak Sangh v Mirzapur Moti Kuresh Jamat that Article 19(1)(g) of the Constitution cannot be put to peril or jeopardized to assuage the feelings of any particular community or a particular section of society, or as a mark of religious sentiments of a particular community". According to mythology, meat is restricted on certain days of the week as the day is dedicated to a particular God. As there is no uniformity in restraining oneself from eating meat on a particular day of the week, the MCG's order to close meat shops does not satisfy the 'proportionality test', nor is the order 'in the interest of the public, as the order deprives people belonging to other communities the right to eat meat on Tuesdays.

Thirdly, The Supreme Court has held in Shaikh Zahid Mukhtar Petitioner v. The State Of Maharashtra And Ors. That the scope of Article 21 of the Constitution extends to include the right of a person to consume the 'food of his choice'. As laid down in this case, Art 21 protects a citizen and restricts State intrusion into a person's home and helps a person to lead a meaningful life which includes the right to eat food, preferably food of her/his choice. By doing so, the MCG's reach extends from the closure of meat shops to indirectly forcing people to quit eating meat on Tuesdays. The closure will also have an economic bearing on other allied industries like restaurants, leather industries etc. and also economically burden meat shop owners as the monthly rent payment will not be reduced and the closure of meat shops will also harm the food supply chain.

Fourthly, the Preamble to the Constitution reads India is a 'secular' State. While discussing in detail the concept of secularism, in S.R. Bommai vs Union Of India, the Supreme Court held that "the State is not going to make any discrimination whatsoever on the ground of religion or community against any person professing any particular form of religious faith. This means in essence that no particular religion in the State will receive any State patronage whatsoever". The present order to close meat shops is also solely due to 'religious sentiments' and therefore deprives people of other communities of consuming meat on Tuesdays, which not only violates the principle of secularism but also is violative of Article 14 of the Indian Constitution which provides equality to all.

Fifthly, the present order deprives people of other communities of consuming meat on Tuesdays, which is violative of Article 14 of the Indian Constitution which provides equality to all. The contentious part of the order concerning infringement of Art 14 is also the increase of license fee for meat shops from the current Rs 5,000 to Rs 10,000. The intrusion of the 'State' in the private affairs of a person should be backed by a 'compelling state interest', which is lacking in this case. The order, therefore, raises several questions, like, whether the order was passed negligently ignoring the constitutional limits? And whether the State went overboard in mandating the closure of meat shops purely based on 'religious sentiments'?

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