Religion and customs form an integral part in the lives of majority of the people living in India. As per a report published by the Pew Research centre, a majority of Indian adults pray daily (60%), more than two-thirds visit a house of worship at least monthly (71%), and an overwhelming share say religion is very important in their lives (84%). Different customs are being followed by people belonging to different faiths, casts and creed. Some of these customs and practices are also limited to particular states. Since these customs and traditions are being followed by people since time immemorial, some of which might not be prudent to be followed in the current times, even the Courts are hesitant to interfere with them.
With the changing times, as more and more people question the way of praying and the “appeasement” of deities prescribed by our ancestors, the customs relating to the indiscriminate usage of animals and animal sacrifice has come under the radar on multiple occasions.
Even this year, as recently as the month of May 2023, a five-judge bench of the Supreme Court upheld the amendments made by the legislatures of Tamil Nadu, Maharashtra, and Karnataka to The Prevention of Cruelty to Animals (PCA) Act, 1960, allowing (giving a go-ahead) for bull-taming sports like Jallikattu, Kambala, and bullock-cart races. [The case was the Animal Welfare Board of India And Ors. v. UoI And Anr. {WP(C) No. 23/2016}].
During the hearings, it had been arguments that the amendments protect the sport, Jallikattu, by claiming that the bull-taming sport is a “cultural heritage” of the states and is protected under Article 29 (1) of the Constitution.
While the Bench led by Justice KM Joseph ruled that the amendments, made in 2017 were “valid legislations”, it said that the continuance of Jallikattu was “debatable”, and must ultimately be decided by the Lok Sabha, also known as the House of the People. Making this decision requires social and cultural analysis in greater detail, said the Court and such an exercise “cannot be undertaken by the judiciary”, the Bench had further said. Notably, the five-judge Bench overruled the view taken by a two-judge Bench of the court in its 2014 ruling in ‘Welfare Board of India v. A. Nagaraja’, banning such sports including Jallikattu.
Therefore, it came be deduced that when it comes to customs, even the highest court of the land has had to tread a thin line, ensuring that they are balancing the requirements of a particular religion/sect/state along with the welfare of the society. It is also the court’s duty to ensure that the said act does not subject the animal to unnecessary cruelty, as even animals have been provided certain rights under our law.
Protection to animal sacrifice under Article 25
To ensure that people have the right to follow the customs defined under their religion without any interference, the lawmakers included Article 25 in the Constitution of India, which guarantees freedom of religion to all persons in India. It provides that all persons in India are equally entitled to freedom of conscience, and have the right to freely profess, practice and propagate religion, however it shall be subjected to public order, morality, health, and other provisions. Thus, within our Constitution, a fundamental right has been provided to every individual to follow their religion and their customs as required.
In Sardar Syedna Saheb v. State of Bombay, the Supreme Court had held that a person is not liable to answer for their religious views, and cannot be questioned regarding personal religious beliefs by the government or by anybody else. However, the person does not have the absolute right to act in any way he/she wants in the practise of religious beliefs.
The government has the regulating power to make laws “in the interest of public order” etc. restricting religious practices. For example, there may be religious practices involving a sacrifice of animals in a way that is harmful to the well-being of the public at large. The Court said that the government can interfere to restrict or regulate such practices, even to the extent of completely stopping such practices.
The practice of animal sacrifice, by both Muslims and Hindus, have been questioned too, many a times.
In Commissioner of Police v. Acharya Jagadishwarananda, the Supreme Court stated that the protection of religion under Article 25 includes protection for religious rituals, ceremonies and modes of worship which are a part of religion. However, a religious practice is considered to be part of a religion only if the practice is found to be an essential and integral part of religion. The Court said that only those practices which are essential and integral to a religion are protected as religious rights.
So, in order to be protected as a religious right, animal sacrifices will have to be considered by the Court as an “essential religious practice” with reference to a particular religion. This may be decided by the Court after looking into the doctrine of the particular religion, what the community regards as essential to the religion, and other evidence.
In the matter of Javed v. State of Haryana, the Supreme Court acknowledged that sacrifice of animals on Eid-al-Azha is an essential part of the religion of Muslims and is protected by Article 25 of the Constitution of India.
Moreover, even in Section 28 of the PCA act, an exception was carved out which said that nothing contained in the Act shall render it an offence to kill any animal in a manner required by the religion of any community.
The practice of Bakri-Eid, and the jurisprudence around it
Eid-al-Azha, a festival observed by the Muslim community, is one such festival where animal sacrifice is performed. It is well known that the said animal sacrifice takes place following the Abrahamic tradition that is common to both the Quran and the Old Testament where Ibrahim (Abraham) has a vision that he is to sacrifice his own son. Abraham unquestioningly follows the command of God and takes his son to the place of slaughter. Just as Abraham is about to slit his son’s throat, God speaks to him and tells him that he has fulfilled his vision. God replaces the son with a male sheep which Abraham proceeds to sacrifice. God is pleased with Abraham’s unquestioning adherence to His command and so bestows His blessings on Abraham and promises to grant his descendants glory and multiply them throughout the earth.
Almost every year, a debate gets started around the said customary practice of animal sacrifice. Petitions on the same have also been filed in the Court, and both the times the Court has refused to get into the issue of animal sacrilege on Bakri Eid, while clarifying that the said practice should be performed in a way that it does not harm the public.
In the month of July, last year, the Gauhati High Court had pronounced a judgment clarifying that the slaughter of animals on the occasion of Bakri-Eid is permissible, subject to the prohibitions contained in various statutes including the Prevention of Cruelty Animal Act, 1960, the Food Safety and Standards Act, 2006 and the Assam Cattle Preservation Act, 2021.
A bench comprising Justices Manash Ranjan Pathak and Manish Choudhury upheld two communications dated June 7 and July 4, issued by the Animal Welfare Board of India and the Assam government respectively, specifying that camels cannot be slaughtered for food at all and wherever the Cow Slaughter Prohibition Act is in force, then slaughtering of cows should not be allowed at all.
The development came on a PIL filed by one Hifzur Rahman Choudhury, challenging the above-mentioned two communications on the ground that those are in violation of the provisions of the Prevention of Cruelty to Animals Act, 1960 and the Assam Cattle Prevention Act, 2021. Choudhury also contended that AWBI has no such power, jurisdiction, and authority to issue any such communications to the State Government regarding stopping of sacrifice of animals on the occasion of Bakri Eid or any other religious festivals of the country.
- Varaaki v. Union of India and others, Writ Petition (C) No. 689 of 2015, decided on 28th September, 2016
In the year 2015, a public interest litigation petition was filed by journalist Varaaki which contended that “religion cannot be allowed to become a tool for perpetuating untold miseries on animals.” The petition had further contended that “faith, religion, customs and practices should not take precedence over lawful rights, human or animal.” This being true for all religious communities, whether it be “Durga pooja, the slaughter of lambs for Easter, turkeys for Thanksgiving or goats for Bakrid,” the petition said. Senior advocate Raju Ramachandran and advocate Sriram Parakkat were arguing on the behalf of the petitioners.
The Supreme Court of India had refused to interfere with religious practices and said the judiciary could not stop centuries-old traditions of sacrificing animals by different communities. The bench comprising of the then Chief Justice of India H.L. Dattu and Justice Amitava Roy had stated that “The balance and harmony of all faiths, this court is bound to it. This, your petition, makes generalised statements on a very, very sensitive matter. We have to close our eyes to centuries and centuries-old traditions.”
The then Chief Justice then pointed to Section 28 of the Prevention of Cruelty to Animals Act and observed that it was not an offence to kill an animal in a manner required by the religion of any community. Referring to the same, Justice Amitava Roy had further observed “Nothing in this Section prevents a person from killing animals as part of his tradition.”
Customs in the modern world
The Courts have, time and again, maintained their stance of non-interference with customs of animal sacrifice being followed by believers of different faiths, devotees of Hinduism during the festival of Durga Pooja and devotees of the Islam Faith during Bakri-Eid, etc. The Court can only guarantee that a balance is struck between the customs being observed and the harm caused to the animal, the environment, or the general public. The Court has maintained their refusal to delve into the core of any such customs.
However, it is critical that devotees and believers themselves, in today’s world, question the myths and superstitions associated with the practice of animal sacrifices, and wonder whether the said practice should be considered relevant now, because sacrificing animals in the name of custom, rituals, and offering them cannot be considered the most ideal.
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