Saturday, 26 October 2013

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.


Read the complete judgment here.

19 comments:

  1. Instead of coming to court may be that butchers association had made it as a convention and closed the shops, taking those nine days as holidays ?

    or

    they can continue it with extreme restrictions as a support to jains with out hurting their feelings ?

    ReplyDelete
    Replies
    1. "can continue it with extreme restrictions as a support to jains with out hurting their feelings" -- Muslims and CARE to NOT hurt feelings????
      Are you still SANE?

      Delete
  2. Nice thought Sir..
    that's called judgment should not always done based on fact but sometime it should come from the bottom of heart....

    but we are student and we see to you to write more on general topics apart from Judgments....

    ReplyDelete
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    ReplyDelete
  4. Sir
    The issues persuaded yourself seems to be okay. But if we are to do such things can the jains close their shops on birthdays of Vallalar, Gandhi etc., as they are against earning through Interest. If it is not then why others should loose their livelihoods on these days.

    ReplyDelete
  5. Sir
    The issues persuaded yourself seems to be okay. But if we are to do such things can the jains close their shops on birthdays of Vallalar, Gandhi etc., as they are against earning through Interest. If it is not then why others should loose their livelihoods on these days.

    ReplyDelete
    Replies
    1. wats the sense of closing shop on jayantis. By opening the shops we are not hurting anyones feeling

      Delete
  6. Sir, great judgment. Indeed, what we "eat" is protected by our right to "privacy". But this is subject to reasonable boundaries, we cannot go kill a Tiger and cook our meal! Meat eating has reached industrial proportions with billions of cattle butchered every year. This is one of the biggest sources of pollution, soil erosion etc., ills that plague the planet. http://www.fao.org/docrep/010/a0701e/a0701e00.HTM .

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  7. I respect your opinions a lot, but Justice Katju, you were completely wrong on two counts in this case 1. as a judge did not uphold the non-vegetarians right to the choice of food 2. butchers right to livelihood and trade. J

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  8. Jain community should offer to compensate for the losses suffered by meat traders / butchers for closing down their business for 9 days.

    ReplyDelete
    Replies
    1. u can also think about those 365-9 days in which butchers are earning. They can just take it as a yearoff. We should respect each others feelings.

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  9. On both counts butchers seems to suffer injustice,theirs right to eat as per their choices and Right to livelihood for 9 days full.how one community can compell others to do according their faith.can Jains compensate theirs loss or can they give such sacrifice.and why every time we demand Muslims for showing good examples?

    ReplyDelete
    Replies
    1. if muslims will request for alcohol ban on their especial days then jains will definitely support them. So y don't u people can support jains.

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    2. Ok Sister. If muslims seek a ban on eating and drinking or at least closing of eatries during the holy month of Ramzan. How would you respond. plz reply.

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  10. I bet you must have felt like an Emperor Akbar, when you were passing that stumped judgement.

    ReplyDelete
    Replies
    1. First of all tell us how do u feel after killing sentient animals. Like us they are also animals.

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    2. The problem here is they are talking about poor butchers and about food of non-veg eaters. Whereas Jains are talking about lives of helpless creatures.
      How many of you can really understand the pain? Am sure everyone might have gone through pain in their lives but none might have gone to a pain that takes one's life. Wished that this much understanding one can hold. It's not about choice of your food but about helpless innocent animals. Jains don't want anyone to starve but jains want at least for those 9 days animals can live more.

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    3. Then how du u kill person in the name of rituals (Sharatha). They are also social animals.

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    4. Then how du u kill person in the name of rituals (Sharatha). They are also social animals.

      Delete