State of
W.B. Vs. Ashutosh Lahiri [1994] INSC 587
(16 November 1994)
Majmudar
S.B. (J) Majmudar S.B. (J) Kuldip Singh (J) Hansaria B.L. (J)
CITATION:
1995 AIR 464 1995 SCC (1) 189 JT 1994 (7) 697 1994 SCALE (4)979
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by MAJMUDAR, J.- All these appeals by
special leave arise out of the judgment of the Division Bench of Calcutta High
Court in Civil Rule No. 709 (W) of 1971 decided on 20-8-1982. The appellants in these appeals are the State of West Bengal and the other contesting
respondents who were before the High Court. 27 respondents herein had filed the
writ petition before the Calcutta High Court, challenging the validity of
exemption of slaughter of scheduled animal, namely, cows, from the operation of
the West Bengal Animal Slaughter Control Act, 1950 (hereinafter referred to as
the 'Act') on BakrI'd day. The writ petitioners had obtained leave under Order
1, Rule 8 of the Code of Civil Procedure and joined Respondents 7 to 21
representing the Muslim community. The writ petitioners contended before the
High Court that the State of West Bengal Respondent 1 before the High Court had
wrongly invoked Section 12 of the Act when it exempted from the operation of
the Act, the slaughter of healthy cows on the occasion of BakrI'd on the ground
that such exemption was required to be given for the religious purpose of
Muslim community. The Division Bench of the Calcutta High Court after hearing
the contesting parties took the view that such slaughter of cows by members of
Muslim community on BakrI'd day was not a requirement of Muslim religion and,
therefore, such exemption was outside the scope of Section 12 of the Act.
Consequently, the impugned 192 order was dehors the statute. In that view the
Division Bench allowed the petition and issued a mandamus to the appellants,
State of West Bengal Respondent 1 and its delegate officers Respondents 2 to 16
in the writ petition calling upon them to forbear from giving any exemption
under Section 12 of the Act in respect of slaughter of cows on the occasion of BakrI'd
day thereinafter. The writ petitioner's oral application for leave under
Article 133 of the Constitution was refused as according to the Division Bench
it had followed the Constitution Bench decision of this Court in Mohd. Hanif Quareshi
v. State of Bihar1, in coming to the said conclusion.
2.As
noted earlier the State of West Bengal as
well as other contesting respondents of Muslim community have preferred these
appeals by way of special leave to appeal from the aforesaid judgment of the
Division Bench of the Calcutta High Court.
3.As
all these appeals involve common questions of facts and law, learned counsel
for contesting parties addressed common arguments in all these appeals.
Consequently, we are disposing of these appeals by this common judgment.
4.Learned
counsel for the appellants in these appeals vehemently contended that the view
of the High Court is erroneous and does not correctly interpret Section 12 of
the Act. It must be held that such exemption can be granted for fulfilling any
religious purpose and such purpose may not be an obligatory purpose. That even
if it is open to a Muslim to offer sacrifice of a goat or a camel or a cow and
when such a sacrifice should be of a healthy animal then it was perfectly open
to the State to grant exemption from the operation of the Act so far as
slaughtering of a healthy cow on BakrI'd day was concerned. It was also
contended that the High Court had misread the judgment in Quareshi case1 as
this case had interpreted Article 25 of the Constitution of India and in that
light it was held that slaughter of cows could not be considered to be a part
of essential religious requirement. So far as Section 12 of the Act is
concerned it does not talk of an essential religious purpose but talks of any
religious purpose which may include even an optional purpose. Mr Tarkunde,
learned Senior Counsel, appearing for one of the appellants vehemently
contended that for operation of Section 12 it is not necessary that the religious
purpose must be a mandatory purpose but would cover even an optional purpose as
contemplated by the Muslim religion, like slaughter of healthy cow on BakrI'd.
Hence such a purpose would be covered by the sweep of Section 12 of the Act.
5.On
the other hand learned counsel for the original writ petitioners, respondents
in these appeals, contended that the Act is meant for controlling the slaughter
of animals including the cows and buffaloes and this is with the object of
increasing the supply of milk and avoiding the wastage of animal power
necessary for improvement of agriculture.
Under
Section 4 of the Act only animals fit for slaughtering can be slaughtered. For
that a certificate is 1 AIR 1958 SC 731 : 1959 SCR 629 193 required to be
issued by the authorities concerned. But so far as healthy animals like cows
are concerned there is a complete ban on slaughtering them. Section 12 seeks to
lift the ban in connection with such animals only on the fulfilment of the
condition precedent, namely, such lifting of the ban being necessary for any
religious, medicinal or research purpose. As this is an exception to the
general protection against slaughtering of healthy animals as envisaged by the
Act, such exemption or exception should be strictly construed and cannot be
lightly granted or lightly resorted to for any optional religious purpose which
may not be absolutely necessary. In this connection it was submitted by learned
counsel for the respondents that as per the appellants, in order to earn
religious merit a Muslim can offer sacrifice of a goat or alternatively of a
healthy cow if 7 Muslims together decided to do so and spend for it or even a
camel can be sacrificed by them on BakrI'd.
Therefore,
it is not essential for Muslims to earn religious merit by insisting on
sacrificing only healthy cows on BakrI'd. Consequently, the State will not have
any Jurisdiction or power to invoke Section 12 for fulfilling such optional
religious practice of Muslim community. It was further contended that the
Constitution Bench judgment in Quareshi case1 has clearly ruled that slaughter
of cow on BakrI'd day cannot be considered to be a part of essential religious
practice and that is the reason why protection of Article 25 is not available
for enabling slaughtering of cows on BakrI'd day. If that is so, on that very
basis the State's action under Section 12 of the Act has to be judged otherwise
what is held to be non-essential religious requirement by the Constitution
Bench of this Court, would be treated as essential religious requirement for
the purpose of Section 12 of the Act. That would run counter to the very ratio
of the decision of the Constitution Bench of this Court. Therefore, according
to the learned counsel for the respondent writ petitioners, the Division Bench
of the High Court was perfectly justified in following the decision of the
Constitution Bench of this Court in Quareshi case1.
6.We
have given our anxious consideration to the rival contentions. In our view the
decision rendered by the Division Bench of Calcutta High Court under appeal is
unexceptionable and calls for no interference. We must keep in view the scheme
of the Act for deciding the question in controversy.
7.As
the preamble of the Act shows it was enacted to control the slaughter of
certain animals as it was expedient to do so with a view to increase the supply
of milk and to avoid the wastage of animal power necessary for improvement of
agriculture. Section 2 lays down that the Act applies to animals specified in
the schedule. The schedule to the Act covers bulls, bullocks, cows, calves,
male and female buffaloes, buffalo calves and castrated buffaloes. Section 4 of
the Act deals with prohibition of slaughtering of animals without certificate
from authorities concerned.
Section
4(1) provides that notwithstanding anything in any other law for the time being
in force or in any usage to the contrary, no person shall slaughter any animal
unless he has obtained in respect thereof a certificate under subsection (2) or
sub-section (3) that the animal is fit for slaughter.
As per
sub- 194 section (2) a certificate is required to be issued by the authorities
concerned that the animal is over 14 years of age and is unfit for work or
breeding or that the animal has become permanently incapacitated from work or
breeding due to age, injury, deformity or any incurable disease. Sub- section
(3) deals with a case where there is a difference of opinion between the
authorities concerned from which initially a certificate is to be obtained. As
per Section 5 even if there is a certificate enabling a person to get the
animal concerned slaughtered he cannot slaughter it in any place other than the
place prescribed in that behalf. As per Section 7 whoever contravenes the
provision of the Act shall be punishable with imprisonment for a term which may
extend to six months or with fine which may extend to one thousand rupees or
with both. Section 8 makes the offences cognizable under the Act. Section 9
prescribes punishment for abetment of offences or even attempts to commit any
such offence under the Act.
8.The
aforesaid relevant provisions clearly indicate the legislative intention that
healthy cows which are not fit to be slaughtered cannot be slaughtered at all.
That is the thrust of Section 4 of the Act. In other words there is total ban
against slaughtering of healthy cows and other animals mentioned in the
schedule under Section 2 of the Act. This is the very essence of the Act and it
is necessary to subserve the purpose of the Act i.e. to increase the supply of
milk and avoid the wastage of animal power necessary for improvement of
agriculture. Keeping in view these essential features of the Act, we have to
construe Section 12 which deals with power to grant exemption from the Act. As
we have noted earlier the said section enables the State Government by general
or special order and subject to such conditions as it may think fit to impose,
to exempt from the operation of this Act slaughter of any animal for any
religious, medicinal or research purpose. Now it becomes clear that when there
is a total ban under the Act so far as slaughtering of healthy cows which are
not fit to be slaughtered as per Section 4(1) is concerned, if that ban is to
be lifted even for a day, it has to be shown that such lifting of ban is necessary
for subserving any religious, medicinal or research purpose.
The
Constitution Bench decision of this Court in Mohd. Hanif Quareshi case1 at
(SCR) page 650 of the report speaking through Das, C.J. referred to the
observations in Hamilton's translation of Hedaya, Book XLIII at page 592 that
it is the duty of every free Mussalman arrived at the age of maturity, to offer
a sacrifice on the I'd Kurban, or festival of the sacrifice, provided he be
then possessed of Nisab and be not a traveller. The sacrifice established for
one person is a goat and that for seven a cow or a camel.
It is,
therefore, optional for a Muslim to sacrifice a goat for one person or a cow or
a camel for seven persons. It does not appear to be obligatory that a person
must sacrifice a cow. Once the religious purpose of Muslims consists of making
sacrifice of any animal which should be a healthy animal, on BakrI'd, then
slaughtering of cow is not the only way of carrying out that sacrifice. It is,
therefore, obviously not an essential religious purpose but an optional one. In
this connection Mr Tarkunde for the appellants submitted that even optional
purpose would be 195 covered by the term "any religious purpose" as
employed by Section 12 and should not be an essential religious purpose.
We
cannot accept this view for the simple reason that Section 12 seeks to lift the
ban in connection with slaughter of such animals on certain conditions. For
lifting the ban it should be shown that it is essential or necessary for a
Muslim to sacrifice a healthy cow on BakrI'd day and if such is the requirement
of religious purpose then it may enable the State in its wisdom to lift the ban
at least on BakrI'd day. But that is not the position. It is well settled that
an exceptional provision which seeks to avoid the operation of main thrust of
the Act has to be strictly construed. In this connection it is profitable to
refer to the decisions of this Court in the cases Union of India v. Wood Paper
Ltd.2 and Novopan India Ltd. v. C.C.E. & Customs3. If any optional
religious purpose enabling the Muslim to sacrifice a healthy cow on BakrI'd is
made the subject-matter of an exemption under Section 12 of the Act then such
exemption would get granted for a purpose which is not an essential one and to
that extent the exemption would be treated to have been lightly or cursorily
granted. Such is not the scope and ambit of Section 12. We must, therefore,
hold that before the State can exercise the exemption power under Section 12 in
connection with slaughter of any healthy animal covered by the Act, it must be
shown that such exemption is necessary to be granted for subserving an
essential religious, medicinal or research purpose. If granting of such
exemption is not essential or necessary for effectuating such a purpose no such
exemption can be granted so as to bypass the thrust of the main provisions of
the Act. We, therefore, reject the contention of the learned counsel for the
appellants that even for an optional religious purpose exemption can be validly
granted under Section 12. In this connection it is also necessary to consider Quareshi
case1 which was heavily relied upon by the High Court. The total ban on
slaughter of cows even on BakrI'd day as imposed by Bihar Legislature under
Bihar Preservation and Improvement of Animals Act, 1955 was attacked as violative
of the fundamental right of the petitioners under Article 25 of the
Constitution. Repelling this contention the Constitution Bench held that even
though Article 25(1) granted to all persons the freedom to profess, practise
and propagate religion, as slaughter of cows on BakrI'd was not an essential
religious practice for Muslims, total ban on cow's slaughter on all days
including BakrI'd day would not be violative of Article 25(1). As we have noted
earlier the Constitution Bench speaking through Das C.J., held that it was
optional for the Muslims to sacrifice a cow on behalf of seven persons on BakrI'd
but it does not appear to be obligatory that a person must sacrifice a cow.
It was
further observed by the Constitution Bench that the very fact of an option
seemed to run counter to the notion of an obligatory duty. One submission was
also noted that a person with six other members of his family may afford to
sacrifice a cow but may not be able to afford to sacrifice seven goats, and it
was observed that in such a case there may be an economic compulsion although
there was no religious compulsion. In this 2 (1990) 4 SCC 256: 1990 SCC (Tax)
422: JT (1991) 1 SC 151 3 1994 Supp (3) SCC 606: JT (1994) 6 SC 80 196
connection, Das C.J. referred to the historical background regarding cow
slaughtering from the times of Mughal emperors. Mughal Emperor Babur saw the
wisdom of prohibiting the slaughter of cows as and by way of religious
sacrifice and directed his son Humayun to follow this.
Similarly,
Emperors Akbar, Jehangir and Ahmad Shah, it is said, prohibited cow slaughter.
In the light of this historical background it was held that total ban on cow
slaughter did not offend Article 25(1) of the Constitution.
9.In
view of this settled legal position it becomes obvious that if there is no
fundamental right of a Muslim to insist on slaughter of healthy cow on BakrI'd
day, it cannot be a valid ground for exemption by the State under Section 12
which would in turn enable slaughtering of such cows on BakrI'd. The contention
of learned counsel for the appellants that Article 25(1) of the Constitution
deals with essential religious practices while Section 12 of the Act may cover
even optional religious practices is not acceptable. No such meaning can be
assigned to such an exemption clause which seeks to whittle down and dilute the
main provision of the Act, namely, Section 4 which is the very heart of the
Act. If the appellants' contention is accepted then the State can exempt from
the operation of the Act, the slaughter of healthy cows even for non-essential
religious, medicinal or research purpose, as we have to give the same meaning
to the three purposes, namely, religious, medicinal or research purpose, as
envisaged by Section 12.
It
becomes obvious that if for fructifying any medicinal or research purpose it is
not necessary or essential to permit slaughter of healthy cow, then there would
be no occasion for the State to invoke exemption power under Section 12 of the
Act for such a purpose. Similarly it has to be held that if it is not necessary
or essential to permit slaughter of a healthy cow for any religious purpose it
would be equally not open to the State to invoke its exemption power under
Section 12 for such a religious purpose. We, therefore, entirely concur with
the view of the High Court that slaughtering of healthy cows on BakrI'd is not
essential or required for religious purpose of Muslims or in other words it is
not a part of religious requirement for a Muslim that a cow must be necessarily
sacrificed for earning religious merit on BakrI'd.
10.We
may also mention one submission of Mr Tarkunde that India is a secular
democratic country and, therefore, the State has to respect the wishes of
minority. In the appeals at hand we are concerned with the short question
whether in the light of clear wording of Section 12, the State can exempt from
the operation of the Act slaughtering of healthy cows on BakrI'd. For deciding
this, ours being a secular country would not be relevant. Mr Tarkunde next
submitted that as per Gujarat Rules slaughtering of cows on BakrI'd is
considered a bona fide religious purpose. Even this aspect is not relevant for
deciding the parameters of Section 12 of the West Bengal Act, even if that be
the position in Gujarat presently, which is not so according to the learned
counsel for the respondents.
11.We
may also deal with the effort made by the learned counsel for the appellants to
distinguish Quareshi case1 on the ground that for interpreting 197 the term
'religious' under Articles 25 and 26, a restricted meaning was given for
balancing the secular nature of democracy on the one hand and the interest of
the individual so far as right to practise any religion is concerned on the
other. In this connection, our attention was invited to the decisions of this
Court in Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan4 and Durgah
Committee v. Syed Hussain Ali5. These decisions are of no avail to the
appellants as therein while dealing with the question of validity of certain
enactments, scope of Articles 25 and 26 of the Constitution was spelt out and
nothing has been held in these decisions which is contrary to what was decided
in Quareshi case1, which we have noted in detail. The effort made by teamed
counsel for the appellants to get any and every religious practice covered by
Section 12 also is of no avail for the simple reason that in the context of
Section 12 the religious practice must be such which requires the invocation of
exemption provision under Section 12 so as to bypass the main thrust of Section
4. For such an exercise non-essential religious practices cannot be made the
basis.
Reliance
placed on the decision of this Court in Hazarat Pirmahomed Shah Saheb Roza
Committee v. C.LT6 also is of no assistance as the same refers to Section 11 of
the Income Tax Act, the scheme of which is entirely different from that of the
Act. Even if we agree with learned counsel for the appellants that slaughter of
a healthy cow on BakrI'd is for a religious purpose, so long as it is not shown
to be an essential religious purpose as discussed by us earlier, Section 12 of
the Act cannot be pressed in service for buttressing such a non-essential
religious purpose.
12.Before
parting we may mention that one preliminary objection was raised before the
High Court about the petitioners' locus standi to move the writ petition. The
High Court held that it was a public interest litigation and the writ
petitioners have sufficient locus standi to move the petition. That finding of
the High Court was not challenged by any of the appellants. In our view rightly
so as the writ petitioners representing a Hindu segment of society had felt
aggrieved by the impugned exemption granted by the State. They had no personal
interest but a general cause to project. Consequently, they had sufficient
locus standi to move the petition. Rule 7 framed under the Act, provides that
provisions of the West Bengal Animal Slaughter Control Act, 1950, shall not
apply to the slaughter of any animal for religious, medicinal or research
purpose subject to the condition that such slaughter does not affect the
religious sentiment of the neighbours of the person or persons performing such
slaughter and that the previous permission of the State Government or any
officer authorised by it is obtained before the slaughter. The case of the
original writ petitioners before the High Court was based on religious
sentiments and, therefore, they had moved this public interest litigation. In
these circumstances, no fault could 4 (1964) 1 SCR 561 AIR 1963 SC 1638 5
(1962) 1 SCR 383 AIR 1961 SC 1402 6 (1967) 63 ITR 490 (SC) 198 be found with
the decision of the High Court recognising locus standi of the original
petitioners to move this public interest litigation which we have found to be
well justified on merits.
13.In
the result, we confirm the decision of the High Court and dismiss these
appeals. Interim reliefs granted earlier during the pendency of the appeals
shall stand vacated. In the facts and circumstances of the case, there will be
no order as to costs.
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