Hinsa Virodhak Sangh Vs.
Mirzapur Moti Kuresh Jamat & Ors [2008] Insc 467 (14 March 2008)
H. K. Sema & Markandey
Katju
(With Civil Appeal Nos. 5470/2005, 5472/2005, 5474/2005, 5476- 5478/2005
& 5479-5481/2005] Markandey Katju, J.
Civil Appeal No. 5469/2005
1. This appeal by special leave has been filed against the impugned judgment
dated 22.6.2005 of the Division Bench of the Gujarat High Court in Special
Civil Application No. 6329 of 1998.
2. Heard learned counsel for the parties and perused the record.
3. Respondent No. 1 claims to be a registered public charitable trust
working for safeguarding the interests of the persons engaged in the business
of slaughter and sale of livestock, mutton etc. It is alleged that it is
functioning in the city of Ahmedabad in Gujarat since 1962 and has about 3000
members. Respondent No. 2 All Ahmedabad (Chhoti Jamat) Mutton Merchant
Association is an association of persons who are engaged in the sale of mutton
in the city of Ahmedabad. Respondent No.3 is an individual who is doing the
business of selling mutton in the city of Ahmedabad.
4. The common grievance of the respondents herein (the writ petitioners
before the High Court), is that with a view to appease the Jain community the
State Government and the Ahmedabad Municipal Corporation (in short the
Corporation) have, from time to time, taken decisions/passed resolutions
for closure of the municipal slaughter houses in Ahmedabad during the period of
the Paryushan festival (which is an important Jain festival) resulting in
serious violation of their fundamental right to trade and do business in meat
etc. They have alleged that in the year 1993, the State Government accepted the
demand of some organizations belonging to the Jain community for closure of the
municipal slaughter houses during the period of Paryushan and issued directions
to the Corporation to take appropriate action accordingly. In subsequent years,
the Corporation passed resolutions for closure of the municipal slaughter
houses for different period ranging from 8 to 18 days during the Paryushan
festival.
5. They have alleged that the closure of the municipal slaughter houses
directly results in violation of their fundamental rights to do trade and
business as guaranteed by Article 19(1)(g) of the Constitution and it cannot be
said to be a reasonable restriction merely because a particular community or a
section of the society feels that for a particular period there should be
closure of the municipal slaughter houses as that will be in consonance with
the Jain ideology of Ahinsa (non-violence).
6. There were two resolutions impugned in the writ petition passed by the
Standing Committee of the Municipal Corporation for closure of the municipal
slaughter houses in Ahmedabad during the Paryushan festival.
These resolutions read as follows:
Resolution dated 14.8.1998:
Resolved that during the current year from 19.8.1998, Mhah Paryushan Parv of
Jain Religion begins. Every year during Paryushan Parv, the slaughter houses of
this Municipality are closes. Accordingly, having regard to the sentiments of
the citizens of Jain Religion, during the current year also, on account of
Paryushan Parv from 19.8.1998 to 26.8.1998, and as per the discussion in the
Committee, sanction should be obtained from the Municipal Corporation, to close
Municipal slaughter houses every year, for eight days, during Paryushan Parv.
Resolution dated 29.8.1999:
Resolved that as demanded by Shree Arihant Seva Samaj and All Gujarat
Digambar Jain Samaj, Ahmedabad, in anticipation of the sanction of the
Municipal Corporation, sanction is granted to close the Municipal slaughter
house for the period 27.8.1998 to 5.9.1998 of Digambar Jain Society Paryushan
Parv from 27.8.1998 to 5.9.1998;
and as per the discussion in the Committee, hereafter every year, to close
the municipal slaughter houses, for ten days of Digambar Jain Samaj Paryushan
Parv.
7. Thus it appears that the closure of slaughter houses in Ahmedabad was
ordered by the Corporation for a period of 18 days, first from 19.8.1998 to
26.8.1998 in connection with the festival of the Shvetamber sect of the Jain
community and the other from 27.8.1998 to 5.9.1998 during which the Digambar
sect of the Jain community celebrates Paryushan festival.
However, during the course of the arguments, learned senior counsels for the
appellants Mr. Soli Sorabjee and Mr. T.R. Andhyarujina stated that the closure
is only for 9 days and not for 18 days which is evident from paragraphs 20
& 23 of the affidavit filed on behalf of Ahmedabad Municipal Corporation in
the connected Civil Appeals (C.A. Nos. 5479-81/2005).
8. The impugned resolutions dated 14.8.1998 and 29.8.1999 were passed under
Section 466(1)(D)(b) of the Bombay Provincial Municipal Corporation Act, 1949.
The said provision reads as follows:
The Commissioner may make standing
orders consistent with the provisions of this Act and the rules and by-laws in
respect of the following matters, namely:-
(A).
(B).
(C).
(D).
(b) fixing the days and the hours on and during which any market,
slaughter-house or stock-yard may be held or kept open for use and prohibiting
the owner of any private market from keeping it closed without lawful excuse on
such days or during such hours.
9. It may be mentioned that the slaughter houses in Ahmedabad are owned and
managed by the Ahmedabad Municipal Corporation, but the animals which are
slaughtered there belong to private persons represented by the respondents
herein, who bring their animals to the slaughter house for slaughtering.
10. The stand taken by the Municipal Corporation is reflected in the
affidavit of Dr. Anil, Asstt. Superintendent (Slaughter Houses) filed in
Special Civil Application No. 9031 of 2000. In paragraph 6 and 7 of his
affidavit, Dr. Anil has stated as under:
6. In reply to para 5 of the petition I state and submit that it is no
doubt true that the religions sentiments of the Jain community are taken into
consideration when imposing this ban. I submit that it is not a question of
Jain community imposing its will upon rest of the people, but it is a question
of one section of society who believes in kindness to animals making a request
that during their religious days their sentiments may be respected for these
few days, if not for all times. It is considering this religious sentiment that
for a few days ban is imposed.
7. In reply to para 7 of the petition, I state that the petitioner is right
in saying that the question which arises before this Honble Court is one
of principle and not of any specific event which happened during a particular
year. I further state and submit that the Corporation has stated earlier what
are the reasons which have led it to impose a ban for a few days during the
Jain religious days. In reply to the principles raised as under:- (i) I
respectfully state and submit that looking to the long term interest of the
city and harmony with which the citizens are expected to live, the Corporation
is well within its right for closing down the slaughter houses for a limited
period of time.
(ii) I state and submit that such a closure is certainly undisputable in
public interest and the restriction which it places temporarily for a few days
on the slaughter of animals is in no way contrary to the Constitution.
(iii) I state and submit that the action of the Corporation is well within its
power and not malafide and not contrary to law and not violative of Article 19
of the Constitution.
(iv) I state that the Corporations action as stated above is taken not
to discriminate between the communities but to see that if communities respect
each others feeling and that more tolerant society where people of
different religions can live together happily is brought about. Such a desire
of the Corporation can by no means be violative of Article 14 of the
Constitution of India. It is important to appreciate that the Corporation is
not deciding between the Jains and other communities. What the Corporation is
attempting to do is to see that the religious beliefs of all communities and
classes of society are respected placing as little restriction or curb on the
other community so that all can live harmoniously and peacefully.
(v) I state that there is no fundamental right to slaughter animals. I state
and submit that the impugned action as stated above is absolutely in public
interest and as already stated above, it is not to satisfy religious sentiments
of a particular section but to see that the community as a whole lives
cordially respecting each others religious belief.
(vi) I respectfully state and submit that Section 466(1)(d)(b) is legal and
just and I leave it to my lawyer to raise relevant argument on this legal
issue.
(vii) I state and submit that the action of the corporation is legal and
valid. It is an absolutely bonafide exercise of power. It is not for a
collateral purpose viz. to appease Jains. I am not going into length on the
same issue as the same has been referred to in former paragraphs of the
affidavit. I state and submit that the power has been exercised to see that the
citizens of Ahmedabad can all live cordially together respecting religious
sentiments of each other.
11. The State Government filed its reply in Special Civil Application No.
9509 of 1993. In paragraph 4 of the affidavit filed by Shri M.V. Khalasi,
Under Secretary to the Government, Urban Development and urban Housing
Department, reference has been made to the incident involving murder of Smt.
Gitaben Shah (Activist of Hinsa Nivaran Samiti) and it has been averred that
keeping in view the representations made by the Jain organizations and personal
requests made by eminent citizens it was decided to close the slaughter houses
during the Paryushan days. Shri Khalasi has referred to the judgment of Supreme
Court in Jan Mohammeds case and averred that the petitioners cannot
complain of the violation of their fundamental rights of trade and business
simply because the Municipal slaughter houses are closed during the period of
the Paryushan.
12. During the pendency of the petitions, Hinsa Virodhak Sangh, Satellite
Murtipujak Jain Sangh, Shree Laxmi Vardak Jain Sangh and Shree Shahibaug
Girdhar Nagar Jain Swetambar Murti Pujak Sangh got themselves impleaded as
parties to the writ petitions or were allowed to be impleaded as party
respondents. Thereafter, Dr. K.K. Shah, President of Hinsa Virodhak Sangh filed
affidavit dated 17.8.1998 in Special Civil Application No. 6239 of 1998. He has
referred to the Farman issued by Mughal Emperor Akbar in the 16th century,
notifying 12 days of the month of Badharva including 8 days of the Paryushan as
the period of abstinence during which no living creature would be slaughtered,
and averred that the petitioners right to trade and business in livestock,
meat etc. is not violated on account of closure of the slaughter houses during
the period of the Paryushan. Shri Jayesh Manubhai Shah has also filed affidavit
17.8.1998 on behalf of three Jain Sanghs. In paragraph 4 of his affidavit, Shri
Jayesh Manubhai Shah has averred as under:- The Jain religion is a very
old religion based mainly on the principles of Ahinsa of the highest
order. In the days of Paryushan Parva all the Jains all over the world will
observe various religious activities such as fasting, prayers, attending the
lectures providing and observing Ahinsa. The Jains are believing in
not killing or hurting even a small insect, therefore, the killing or cutting
of the animals in the slaughter houses during these days of Paryushan Parva
affect and hurt the religious feelings of all Jains. The respondent Nos. 1 and
2 have been respecting the religious feeling of Jains since last many years and
during the closure of the slaughter houses in Paryushan Parva days there are no
complaints regarding non-supply of meat or its products by consumers, traders
etc. thereof.
13. It was submitted by learned counsel for the appellants before the High
Court that the closure of the municipal slaughter houses during the period of
Paryushan should be declared as an unreasonable restriction on the rights of
the writ petitioners to carry on trade and business in livestock, mutton etc.
It is alleged that the impugned resolutions were passed by the Corporation
in view of the demand made by some organizations belong to the Jain community
and it has nothing to do with the general public interest. It was further
submitted that the fundamental rights of those engaged in the trade and
business of slaughtering animals and/or selling meat etc which is guaranteed
under Article 19(1)(g) of the Constitution cannot be put to peril or
jeopardized with a view 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. It was submitted that a large number of people living in
Ahmedabad are non-vegetarians and their right to food of their choice is an
integral part of the right to life guaranteed under Article 21 of the
Constitution which cannot be violated at the whims and fancies of the Jain
community.
14. It was also submitted that the impugned resolutions of the Corporation
were totally arbitrary and discriminatory and hence violative of Article 14 of
the Constitution apart from violating Article 19(1)(g) of the Constitution.
15. In reply it was submitted before the High Court by learned counsels for
the Municipal Corporation and the State of Gujarat that the impugned
resolutions were valid and there is no violation of any constitutional
provision. It was submitted that non-vegetarians should respect the sentiments
of the Jain community and should not complaint against the closure of the
slaughter houses simply because it may adversely affect their business for a
few days. A reference was made to the decision of this Court in Haji Usmanbhai
Qureshi vs. State of Gujarat AIR 1986 SC 1213 in which a Constitution Bench of
this Court upheld the ban on slaughter of bulls and bullocks below the age of
16 years. It was submitted that the right to eat non-vegetarian food cannot be
treated as a part of the right to life under Article 21 of the Constitution and
the closure of Municipal slaughter houses for a few days cannot be said to be
arbitrary or violative of Article 19(1)(g) or Article 14 of the Constitution.
16. Reference was also made to the decision of this Court in Municipal
Corporation vs. Jan Mohammed AIR 1986 SC 1205 where closure of the municipal
corporation slaughter houses by the Corporation for 7 days i.e.
during Janmasthami, Mahatma Gandhis Birthday, 30th January, Mahavir
Jayanti, Ram Navami, etc. was held to be valid.
17. By the impugned judgment, the Division Bench of the High Court held that
the impugned resolutions of the Municipal Corporation were constitutionally
invalid. The Division Bench of the High Court held that the writ
petitioners right to freedom to carry on the trade of slaughtering and
selling meat cannot be curtailed or abridged merely at the asking of a particular
section of society, or organizations belonging to a particular community merely
because the members of that particular community feel that according to their
religion people should not eat non-vegetarian food during a particular
festival. The Division Bench was of the view that whether the people eat
vegetarian food or non-vegetarian food is their private affair and the Court
cannot make any pronouncement about it.
People living in different parts of the country have different eating
habits.
Even in a particular locality, village or town, there are some who are
vegetarian and others who are non-vegetarian. The Division Bench held that no
restriction can be placed on the slaughtering or eating of meat merely because
it may hurt the sentiments or the religious feelings of a particular community
or a society.
18. The Division Bench of the High Court strongly relied on the decision of
a Constitution Bench of this Court in Mohd. Faruk vs. State of Madhya Pradesh
AIR 1970 SC 93.
19. We have carefully considered the judgment of the Constitution Bench in
Md. Faruks case (supra). In that judgment reference was made to the
decision of the earlier Constitution Bench in Mohd. Hanif Quareshi vs.
State of Bihar AIR 1958 SC 731 in which it was held - (i) that a total ban
on the slaughter of cows of all ages and calves of cows and of she-buffaloes,
male and female, was reasonable and valid; (ii) that a total ban on the
slaughter of she-buffaloes or breeding bulls or working bullocks (cattle as
well as buffaloes), so long as they were capable of being used as milch or
draught cattle, was also reasonable and valid; and (iii) that a total ban on
the slaughter of she-buffaloes, bulls and bullocks (cattle or buffalo) after
they ceased to be capable of yielding milk or of breeding or working as draught
animals was not in the interest of the general public and was invalid.
20. Reference was also made in Md. Faruks case (supra) to Abdul Hakim
Quarishi vs. State of Bihar AIR 1961 SC 448 where it was held that the ban on
the slaughter of bulls, bullocks and she-buffaloes below the age of 20 or 25
years was not a reasonable restriction in the interest of the general public
and was void. The Court observed that a bull, bullock or buffalo did not remain
useful after it was 15 years old, and whatever little use it may then have was
greatly offset by the economic disadvantages of feeding and maintaining
unserviceable cattle. This Court also held that the additional condition that
the animal must, apart from being above 20 or 25 years of age, be unfit was a
further unreasonable restriction. On that ground the relevant provisions in the
Bihar, U.P. and Madhya Pradesh Acts were declared invalid.
21. In paragraph 11 of Md. Faruks case (supra), this 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
22. It was on the basis of the observations made in the aforesaid para 11 in
Md. Faruks case (supra) that the Division Bench of the High Court struck
down the impugned resolutions of the Ahmedabad Municipal Corporation.
23. Before we proceed further it may be mentioned that a Seven-Judge
Constitution Bench judgment of this Court in State of Gujarat vs.
Mirzapur Moti Kureshi Kassab Jamat & Ors. 2005(8) SCC 534 has partially
overruled the decision of the Five-Judge Constitution Bench in Md.
Hanif Qureshis case (supra). In the aforesaid decision the Seven-Judge
Constitution Bench has referred, inter alia, to the decision in the Five-Judge
Constitution Bench decision in Md. Faruks case (supra) (in para 29). In
paragraph 67 of the Seven-Judge bench judgment it has been observed:
The State and every citizen of India must have compassion for living
creatures. Compassion, according to the Oxford Advanced Learners
Dictionary means a strong feeling of sympathy for those who are suffering
and a desire to help them. According to the Chambers 20th Century
Dictionary, compassion is fellow-feeling, or sorrow for the sufferings of
another; pity. Compassion is suggestive of sentiments, a soft
feeling, emotions arising out of sympathy, pity and kindness. The concept of
compassion for living creatures enshrined in Article 51-A(g) is based on the
background of the rich cultural heritage of India the land of Mahatma Gandhi,
Vinobha, Mahaveer, Buddha, Nanak and others. No religion or holy book in any
part of the world teaches or encourages cruelty. Indian society is a
pluralistic society. It has unity in diversity. The religious, cultures and
people may be diverse, yet all speak in one voice that cruelty to any living
creature must be curbed and ceased.
24. We have quoted paragraph 67 of the Seven-Judge Bench decision of this
Court because this observation will be deemed to have impliedly overruled the
observation in paragraph 11 of the judgment in Md. Faruks case (supra)
that sentiments of a particular section of the people are irrelevant in imposing
a prohibition.
25. We are of the opinion that the impugned judgment of the High Court
cannot be sustained. In our opinion, the impugned resolutions of Ahmedabad
Municipal Corporation are valid, and there is no violation of Articles 14,
19(1)(g) or 21 of the Constitution.
26. Had the impugned resolutions ordered closure of municipal slaughter
houses for a considerable period of time we may have held the impugned
resolutions to be invalid being an excessive restriction on the rights of the
butchers of Ahmedabad who practise their profession of meat selling. After all,
butchers are practicing a trade and it is their fundamental right under Article
19(1)(g) of the Constitution which is guaranteed to all citizens of India.
Moreover, it is not a matter of the proprietor of the butchery shop alone.
There may be also several workmen therein who may become unemployed if the
slaughter houses are closed for a considerable period of time, because one of
the conditions of the licence given to the shop-owners is to supply meat
regularly in the city of Ahmedabad and this supply comes from the municipal
slaughter houses of Ahmedabad. Also, a large number of people are
non-vegetarian and they cannot be compelled to become vegetarian for a long
period. What one eats is ones personal affair and it is a part of his
right to privacy which is included in Article 21 of our Constitution as held by
several decisions of this Court. In R. Rajagopal vs.
State of Tamilnadu AIR 1995 SC 264 (vide para 28) this Court held that the
right to privacy is implicit in the right to life and liberty guaranteed by
Article 21. It is a `right to be let alone.
27. However, in the present case, the closure of the slaughter houses is
only for 9 days and not for a considerable period of time. We have, therefore,
to take a balanced view of the matter.
28. In this connection it may be mentioned that there is a large population
of the Jain community in the States of Rajasthan and Gujarat. The Jains have a
religious festival called Paryushan during which they do penance.
Out of respect, for their sentiments surely the non-vegetarians can remain
vegetarians for 9 days in a year.
29. Mr. Soli Sorabjee, learned senior counsel for one the appellants
submitted that even non-vegetarians can get meat from other cities of Gujarat
or from other States during these 9 days period of Paryushan and they will
not be compelled to become vegetarians. Learned counsel submitted that it is
only the municipal slaughter houses which are closed for 9 days, but there is
no ban on eating meat during those 9 days which can easily be procured from
outside. We do not agree.
30. We have to take a practical view of the matter. Most people do not have
the money to purchase meat from other cities or other States and bring it to
Ahmedabad. Almost all meat eaters get their meat from the local butcher shop in
the city, usually from a shop which is close to their residence. Hence, closure
of the slaughter house, in substance, means compelling the non-vegetarians to
become vegetarians for 9 days.
31. However, we agree with Mr. Sorabjee that the restriction is only a
partial restriction for a limited period, and it is not disproportionate. Hence
it is not an unreasonable restriction.
32. While it is true that the fundamental right of the writ petitioners
under Article 19(1)(g) is affected by the impugned resolutions of the municipal
corporation, we have further to examine whether the resolutions are saved by
Article 19(6) which states that reasonable restrictions can be put on the right
to freedom of trade and occupation under Article 19(1)(g) of the Constitution.
33. In this connection, we may now refer to the well known Constitution
Bench decision of this Court in State of Madras vs. V.G. Row 1952 SCR 597,
where this Court observed that while determining the reasonable restriction,
the Court should consider not only the factors of the restriction such as the
duration and the extent but also the circumstances and the manner in which the
imposition has been authorized. The Court further observed:
It is important in this context to bear in mind that the test of
reasonableness, wherever prescribed, should be applied to each individual
statute impugned, and no abstract standard, or general pattern of
reasonableness can be laid down as applicable to all cases. The nature of the
right alleged to have been infringed, the underlying purpose of the
restrictions imposed, the extent and urgency of the evil sought to be remedied
thereby, the disproportion of the imposition, the prevailing conditions at the
time, should all enter into the judicial verdict. In evaluating such elusive
factors and forming their own conception of what is reasonable, in all the
circumstances of a given case, it is inevitable that the social philosophy and
the scale of values of the judges participating in the decision should play an
important part, and the limit to their interference with legislative judgment
in such cases can only be dictated by their sense of responsibility and
self-restraint and the sobering reflection that the Constitution is meant not
only for people of their way of thinking but for all, and that the majority of
the elected representatives of the people have, in authorizing the imposition
of the restrictions, considered them to be reasonable.
34. The aforesaid observations have become locus classicus. In the present
case we have noticed that the closure of the slaughter house is only for 9 days
and not for a considerable period of time. This decision indicates that the
restriction is reasonable. A period of 9 days is a very short time and surely
the non-vegetarians can become vegetarians during those 9 days out of respect
for the feeling of the Jain community. Also, the dealers in meat can do their
business for 356 days in a year, and they have to abstain from it for only 9
days in a year. Surely this is not an excessive restriction, particularly since
such closure has been observed for many years.
35. In the above observation in State of Madras vs. V.G. Row (supra) mention
has been made therein of the things to be seen in judging whether the
restriction is reasonable or not, and one important consideration is whether
the restriction is disproportionate. In our opinion, there is no
disproportionate restriction because the restriction is only for a short period
of 9 days. Moreover, in the above observation in V.G. Rows case (supra),
it is also mentioned that Courts must act with a sense of responsibility and
self-restraint with the sobering reflection that the Constitution is meant not
only for people of their way of thinking but for all, and the majority of the
elected representatives of the people have in authorizing the imposition of the
restrictions considered them to be reasonable.
36. Judging from that angle mentioned above in V.G. Rows case (supra),
which has been consistently followed thereafter, in our opinion the closure of
slaughter house cannot be said to be an unreasonable restriction on the writ
petitioners right to do their trade and business of slaughtering animals.
37. In this connection, reference may be made to Om Prakash and others vs.
State of U.P. and others 2004 (3) SCC 402, where this Court held that a
municipal bye-law prohibiting sale of meat, fish and egg in Rishikesh is valid
considering the fact that most people in Risikesh come for religious purposes
and members of several communities are strictly vegetarian, and it is such
people who come in large numbers to visit Haridwar, Muni-Ki-Reti are
vegetarians.
38. It may be mentioned that the impugned resolutions which have been made
under Section 466(1)(D)(b)of the Bombay Provincial Municipal Corporations Act,
1949 amount to a piece of delegated legislation. A piece of delegated
legislation is also statutory in character and the only limitation on it is
that it should not violate the provisions of the parent statute or of the
Constitution. In our opinion, the impugned resolutions of the Corporation do
not violate the parent statute or any constitutional provisions.
39. We have recently held in Govt of Andhra Pradesh & Ors. vs. Smt.
P. Laxmi Devi, JT 2008(2) 8 SC 639 that the Court should exercise judicial
restraint while judging the constitutional validity of statutes. In our
opinion, the same principle also applies when judging the constitutional
validity of delegated legislation and here also there should be judicial
restraint. There is a presumption in favour of the constitutionality of
statutes as well as delegated legislation, and it is only when there is a clear
violation of a constitutional provision (or of the parent statute, in the case
of delegated legislation) beyond reasonable doubt that the Court should declare
it to be unconstitutional.
40. In the present case, we do not find any clear violation of any
constitutional provision by the impugned resolutions. As already stated above,
had the closure of the slaughter houses been ordered for a considerable period
of time, we would have declared it to be unconstitutional on the ground of
violation of Articles 14, 19(1)(g) as well as 21 of the Constitution. However,
in the present case, the closure is only for a few days and has been done out
of respect for the sentiments of the Jain community which has a large
population in Gujarat. Moreover such closure during Paryushan has been
consistently observed in Ahmedabad for a very long time, at least from 1993 and
probably for a longer period.
41. It must be remembered that India is a multi-cultural pluralistic society
with tremendous diversity. There are a large number of religions, castes,
languages, ethnic groups, cultures, etc. in our country. Somebody is tall,
somebody is short, somebody is fair, somebody is brown, somebody is dark in
complexion, someone has Caucasian features, someone has Mongoloid features,
someone has Negroid features, etc. We may compare our country with China which
is larger in population and size than India. China has 1.3 billion people while
our population is 1.1 billion. Also, China has more than twice our land area.
However, there is broad homogeneity in China. All Chinese have Mongoloid
features; they have a common written script (Mandarin Chinese) and 96% of them
belong to one ethnic group called the Han Chinese.
42. On the other hand, India as stated above, has tremendous diversity and
this is due to large scale migrations and invasion into India over thousands of
years.
43. People migrate from uncomfortable areas to comfortable areas.
Before the coming of modern industry there were agricultural societies and
India was a paradise for these because agriculture requires level land, fertile
soil, plenty of water for irrigation etc. which was in abundance in India.
Why would anybody living in India migrate to Afganistan which has a harsh
terrain, rocky and mountainous and covered with snow for several months in a
year when one cannot grow any crop? Hence, almost all migrations and invasions
came from outside into India (except in recent times when some people have gone
to other countries for job opportunities).
Most of the migrations/invasions came from the North-West, and to a much
lesser extent from the North-East of India. Thus, people kept pouring into
India, and it is for this reason that there is so much diversity in India.
44. As the great Urdu poet Firaq Gorakhpuri wrote :
lj t+ehus fgan ij vdokes vkye ds fQjkd dkfQys xqt+jrs x, fgUnqLrku Ckurk x;k
Which means In the land of Hind, the Caravans of the peoples of The world
kept coming in and India kept getting formed
45. Since India is a country of great diversity, it is absolutely essential
if we wish to keep our country united to have tolerance and respect for all
communities and sects. It was due to the wisdom of our founding fathers that we
have a Constitution which is secular in character, and which caters to the
tremendous diversity in our country.
46. Thus it is the Constitution of India which is keeping us together
despite all our tremendous diversity, because the Constitution gives equal
respect to all communities, sects, lingual and ethnic groups, etc. in the
country.
47. The architect of modern India was the great Mughal Emperor Akbar who
gave equal respect to people of all communities and appointed them to the
highest offices on their merits irrespective of their religion, caste, etc.
48. The Emperor Akbar held discussions with scholars of all religions and
gave respect not only to Muslim scholars, but also to Hindus, Christians,
Parsis, Sikhs, etc. Those who came to his court were given respect and the
Emperor heard their views, sometimes alone, and sometimes in the Ibadatkhana
(Hall of Worship), where people of all religions assembled and discussed their
views in a tolerant spirit. The Emperor declared his policy of Suleh-e-Kul,
which means universal tolerance of all religions and communities. He abolished
Jeziya in 1564 and the pilgrim tax in 1563 on Hindus and permitted his Hindu
wife to continue to practise her own religion even after their marriage. This
is evident from the Jodha Bai Palace in Fatehpur Sikri which is built on Hindu
architectural pattern.
49. In 1578, the Parsi theologian Dastur Mahyarji Rana was invited to the
Emperors court and he had detailed discussions with Emperor Akbar and
acquainted him about the Parsi religion. Similarly, the Jesuit Priests Father
Antonio Monserrate, Father Rodolfo Acquaviva and Father Francisco Enriques etc.
also came to the Emperors court on his request and acquainted him about
the Christian religion. The Emperor also became acquainted with Sikhism and
came into contact with Guru Amar Das and Guru Ram Das (see `The Mughal
Empire by R.C. Majumdar).
50. Thus, as stated in the Cambridge History of India (Vol.IV The Mughal
Period) Emperor Akbar conceived the idea of becoming the father of all his
subjects, rather than the leader of only the Muslims, and he was far ahead of
his times. As mentioned by Pt. Jawahar Lal Nehru in `The Discovery of
India, Akbars success is astonishing, for he created a sense of
oneness among the diverse elements of India.
51. In 1582, the Emperor invited and received a Jain delegation consisting
of Hiravijaya Suri, Bhanuchandra Upadhyaya and Vijayasena Suri. Jainism, with
its doctrine of non-violence, made a profound impression on him and influenced
his personal life. He curtailed his food and drink and ultimately abstained
from flesh diet altogether for several months in the year. He renounced hunting
which was his favourite pastime, restricted the practice of fishing and
released prisoners and caged birds. Slaughter of animals was prohibited on
certain days and ultimately in 1587 for about half the days in the year.
52. Akbars contact with Jains began as early as 1568, when Padma Sunder
who belonged to the Nagpuri Tapagaccha was honoured by him.
53. As mentioned in Dr. Ishwari Prasads `The Mughal Empire, the
Jains had a great influence on the Emperor. A disputation was held in
Akbars court between the Jain monks Buddhisagar of Tapgaccha and Suddha
Kirti of Khartargaccha on the subject of Jain religious ceremony called
Pansadha in which the winner was given the title Jagatguru by Akbar. Having
heard of the virtues and learning of Hir Vijaya Suri in 1582 the Emperor sent
an invitation to him through the Mughal Viceroy at Ahmedabad. He accepted it in
the interests of his religion. He was offered money by the Viceroy to defray
the expenses of the journey but he refused. The delegation consisting of Hir
Vijaya Suri, Bhanu Chandra Upadhyaya and Vijaya Sen Suri started on their
journey and walked on foot to Fatehpur Sikri and were received with great
honour befitting imperial guests. Hir Vijaya Suri had discussion with Abul
Fazl. He propounded the doctrine of Karma and an impersonal God. When he was
introduced to the Emperor he defended true religion and told him that the
foundation of faith should be daya (compassion) and that God is one though he
is differently named by different faiths.
54. The Emperor received instruction in Dharma from Suri who explained the
Jain doctrines to him. He discussed the existence of God and the qualities of a
true Guru and recommended non-killing (Ahinsa). The Emperor was persuaded to
forbid the slaughter of animals for six months in Gujarat and to abolish the confiscation
of the property of deceased persons, the Sujija Tax (Jeziya) and a Sulka
(possibly a tax on pilgrims) and to free caged birds and prisoners. He stayed
for four years at Akbars court and left for Gujarat in 1586. He imparted a
knowledge of Jainism to Akbar and obtained various concessions to his religion.
The Emperor is said to have taken a vow to refrain from hunting and expressed a
desire to leave off meat- eating for ever as it had become repulsive. The
Emperor presented to him Padma Sundar scriptures which were preserved in his
palace. He offered them to Suri as a gift and he was pressed by the Emperor to
accept them.
The killing of animals was forbidden for certain days.
55. If the Emperor Akbar could forbid meat eating for six months in a year
in Gujarat, is it unreasonable to abstain from meat for nine days in a year in
Ahmedabad today?
56. Emperor Akbar was a propagator of Suleh-i-Kul (universal toleration) at
a time when Europeans were indulging in religious massacres e.g. the St.
Bartholomew Day massacre in 1572 of Protestants, (called Huguenots) in
France by the Catholics, the burning at the stake of Protestants by Queen Mary
of England, the massacre by the Duke of Alva of millions of people for their
resistance to Rome and the burning at the stake of Jews during the Spanish
Inquisition. We may also mention the subsequent massacre of the Catholics in
Ireland by Cromwell, and the mutual massacre of Catholics and Protestants in
Germany during the thirty year war from 1618 to 1648 in which the population of
Germany was reduced from 18 million to 12 million. Thus, Emperor Akbar was far
ahead of even the Europeans of his times.
57. Emperor Akbar himself abstained from eating meat on Fridays and Sundays
and on some other days, as has been mentioned in the Ain-I-Akbari by Abul Fazl.
58. It was because of the wise policy of toleration of the Great Emperor
Akbar that the Mughal empire lasted for so long, and hence the same wise policy
of toleration alone can keep our country together despite so much diversity.
59. We may give another historical illustration of tolerance in our country.
In the reign of Nawab Wajid Ali Shah of Avadh, in a certain year Holi and
Muharrum coincidentally fell on the same day. Holi is a festival of joy,
whereas Muharrum is an occasion for mourning. The Hindus of Lucknow decided
that they would not celebrate Holi that year out of respect for the sentiments
for their Muslim brethren. On that day, the Nawab joined the Muharrum
procession and after burial of the Tazia at Karbala he enquired why Holi is not
being celebrated. He was told that it was not being celebrated because the
Hindus out of respect for the sentiments of their Muslim brethren had decided
not to play Holi that year because it was a day of mourning for the Muslims. On
hearing this, Nawab Wajid Ali Shah declared that since Hindus have respected
the sentiments of their Muslim brothers, it is also the duty of the Muslims to
respect the sentiments of their Hindu brethren. Hence, he announced that Holi
would be celebrated the same day and he himself was the first who started
playing Holi on that day and thereafter everyone in Lucknow, including the
Muslims, played Holi, although it was Muharrum day also. It is this kind of
sentiment of tolerance which alone can keep our country united.
60. We are making these comments because what we are noticing now-a- days is
a growing tendency of intolerance in our country.
61. Article 1(1) of the Constitution states India i.e Bharat is a Union
of States.
62. It may be mentioned that during the Constituent Assembly debates some
members of the Constituent Assembly were of the view that India should be
described as a Federation. However, instead of the word "Federation"
the word "Union" was deliberately selected by the Drafting Committee
of the Constituent Assembly to indicate two things, viz., (a) that the Indian
Union is not the result of an agreement by the States, and (b) that the
component States have no freedom to secede from it.
63. Moving the Draft Constitution for the consideration of the Constituent
Assembly on November 4, 1948, Dr. Ambedkar, Chairman of the Drafting Committee
explained the significance of the use of the expression "Union"
instead of the expression "Federation":- "It is true that
South Africa which is a unitary State is described as a Union. But Canada which
is a Federation is also called a Union. Thus the description of India as a
Union, though its constitution is federal, does no violence to usage. But what
is important is that the use of the word "Union" is deliberate. I do
not know why the word "Union" was used in the Canadian Constitution.
But I can tell you why the Drafting Committee has used it.
The Drafting Committee wanted to make it clear that though India was to be a
federation, the federation was not the result of an agreement by the States to
join in a federation, and that the federation not being the result of an
agreement, no State has the right to secede from it.
The federation is a Union because it is indestructible.
Though the country and the people may be divided into different States for
convenience of administration, the country is one integral whole, its people a
single people living under a single imperium derived from a single source. The
Americans had to wage a civil war to establish that the States have no right of
secession and that their federation was indestructible. The Drafting Committee
thought that it was better to make it clear at the outset rather than to leave
it to speculation or to dispute".
64. The Drafting Committee thus clearly attached great importance to the use
of the term "Union" as symbolic of the determination of the Assembly
to maintain the unity of the country. This was evident from the discussions on
draft article 1 in the Assembly on November 15, 1948.
65. Thus India is not an association or confederation of States, it is a
Union of States and there is only one nationality that is Indian. Hence every
Indian has a right to go any where in India, to settle anywhere, and work and
do business of his choice in any part of India, peacefully.
66. These days unfortunately some people seem to be perpetually on a short
fuse, and are willing to protest often violently, about anything under the sun
on the ground that a book or painting or film etc. has hurt the
sentiments of their community. These are dangerous tendencies and must be
curbed with an iron hand. We are one nation and must respect each other and
should have tolerance.
67. As the great Tamil Poet Subramaniya Bharati wrote :
Muppadhu kodi mugamudayal Enil maipuram ondrudayal Ival Seppumozhi
padhinetudayal Enil Sindhanai ondrudayal Which means This
Bharatmaata has thirty crores of faces! But her body is one.
She speaks eighteen languages! But her thought is one 68. The great
Tamil poet Kaniyan Pookundranar wrote :
Yadhum oore yaavarum kelir Which means- All places are my own
places All people are my own kith and kin
69. Similarly, the great poet Saint Tiruvalluvar in Chapter 74 verse 735 of
Tirukkural wrote:
Palkuzhuvum paazhseyyum utpagayum Vendalaikku kolkurumbum illadhu
nnadu Which means That alone can be called as a prosperous country
which is free from separatist tendencies and people who harm its
sovereignty.
70. In the Shanti Parv of Mahabharata Bhishma Pitamah tells Yudhishthir:
Hksns x.kk fouskqfg fHkUukLrq Lkqt;k% ijSS% k rLEkkr la|kr;sxsu iz;rsju
x.kk% lnk kk (Chapter 107/108 Shloka 14) Which means- Republics have been
destroyed only because of internal divisions, it is only when there are
internal divisions between the people, that an enemy can destroy it, hence a
republic should always try to achieve, unity and good relations between its
people."
In the same Shanti Parv, Bhishma Pitamah also said :
rs"kkeU;ksU;fHkUukuka Lo'kfRdeuqfr"Brke kk fuxzg% Ikf.MrS% dk;Z%
f{kIzkeso g?kkur% k Which means The intelligent authorities of a republic
should suppress those leaders of factions who try to divide the people.
(Chapter 107/108 Shloka 26)
71. In the present case we have seen that for a long period slaughter houses
have been closed in Gujarat for a few days out of respect for the sentiments of
the Jain community, which has a sizable population in Gujarat and Rajasthan. We
see nothing unreasonable in this restriction.
72. As already stated above, 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. There is no prohibition to
their business for the remaining 356 days in a year. In a multi cultural
country like ours with such diversity, one should not be over sensitive and
over touchy about a short restriction when it is being done out of respect for
the sentiments of a particular section of society. It has been stated above
that the great Emperor Akbar himself used to remain a vegetarian for a few days
every week out of respect for the vegetarian section of the Indian society and
out of respect for his Hindu wife. We too should have similar respect for the
sentiments for others, even if they are a minority sect.
73. In view of the above, the appeal is allowed. The impugned judgment is
set aside and the impugned resolutions of the Municipal Corporation of
Ahmedabad are held to be valid. There shall be no order as to costs.
74. Resultantly, all the connected appeals stand allowed. There shall be no
order as to costs.
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