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Last month, the Tripura High Court in a significant verdict (Subhas Bhattacharjee v. State of Tripura) found the practice of offering sacrifice of animals in temples of the state to be unconstitutional. The judgment authored by Chief Justice of the Tripura High Court Sanjay Karol is an addition to the catena of decisions by which courts have tested the extent of protection a religious practice enjoys under Article 25 of the Constitution.
However, the present judgment stands apart for attempting to adjudicate the above question not only from the standpoint of a citizen having the freedom of religion vis-à-vis another’s citizens right to life (particularly health), but also from the perspective of the right of animals against cruelty vis-à-vis a human being’s right to religion.
The verdict is laudable and provides key takeaways for other courts to follow.
Before I discuss the judgment, a brief overview of the provisions primarily involved in the judgment would be beneficial. Article 21 of the Constitution guarantees to every person the right to life, which through judicial precedents, has been held to mean a life with dignity. The courts have also held that the right under Article 21 is available to other species like animals/birds as well.
Article 25 of the Constitution guarantees to every citizen the freedom of conscience and the right to profess, practice and propagate religion. It is to be noted that the said right is not absolute and can be curtailed by the government under two conditions: on grounds of public order, morality and health and other provisions of Part III, and provided that the practice/activity in question is not essential to the religion (also known as the Essential Religious Practice (ERP) test.
In the above matter, petitioner Subhas Bhattacharjee had filed a Public Interest Litigation before the Tripura High Court against the practice of sacrificing of animals before the Gods and Goddesses. The petitioner had especially highlighted the practice of sacrifice in the Mata Tripureswari temple, which is considered to be a ‘Shakti Peetha’ (one of the fifty-one auspicious temples of Goddess Sati in the world).
The state government defended such practice by terming it an integral part of worship in the Hindu religion. It argued that as per tradition, the last step of worship in the Mata Tripureswari temple involves an “ahuti” i.e. sacrifice of the goat(s), pigeon(s), buffalo(es) etc. before the Goddess. The state government placed on record several documents to prove that the practice of sacrifice has existed in the temple since time immemorial.
The festivities of the Mata Tripureswari temple involve severing of animal heads by sharp cutting ‘daos’ (a type of sword) amidst the loud noise of drums and chants of the devotees. The severed head is handed over to the priest for chanting of mantras, while the blood of the animals flows within the precincts of the temple and the drain.
In the above backdrop, the Tripura High Court had to consider whether the practice was protected under Article 25 of the Constitution.
For a religious practice to be protected under Article 25, it needs to satisfy the following test:
Firstly, the Court cited and relied on several texts/documents on the practice and concluded that there is no textual evidence to show that sacrifice of animals was obligatory in performing puja at the Mata Tripureswari temple, as instead of animal sacrifice, the devotees can also offer sweets and fruits to the deity. In light of the above, the Court concluded that the practice is optional and not done out of necessity, and hence is not an Essential Religious Practice.
While reaching this conclusion, the Court also discussed the evolutionary nature of Hindu religious practices, where practices which were once considered crucial were abolished in light of social reforms.
Secondly, the Court tested the practice with the grounds of ‘health’ and ‘morality’. The Court held that animal sacrifice affects mental and physical health of an individual. In the Court’s view, the site of severed animal heads stocked in front of the deity along with their blood sprinkled around affects an individual’s mental health and peace. Further, the practice affects the physical health of individuals as animal blood gets contaminated in open drains and results in increase of diseases.
The Court also found the practice to be against the principles of morality i.e. constitutional morality. The Court reiterated the findings of the landmark decision in the Sabarimala case, to state that even if a practice is favored as per popular perception, it shall not be protected if it goes against the cherished principles of our Constitution.
As a result, the Tripura High Court passed the following directions, among others:
“(a) No person including the State shall be allowed to sacrifice of any animal/bird within the precincts of any one of the temples within the State of Tripura;
(b) No person shall sacrifice such animal within the precincts of any of the temples within the State of Tripura;
(c) Government of Tripura has proposed development of Devi Tripuresrwari temple as a favourite international tourist destination. People of all beliefs and faiths are likely to visit in large number. Anyone of the devotees desirous of offering any animal out of personal faith, belief or desire, may do so, but, shall take back the animal and under no circumstance any activity of animal sacrifice shall be permitted to be carried out. Prudently, the Government can earmark land for opening shelter home for rearing such livestock.
(e) The Chief Secretary, Government of Tripura shall also ensure compliance of the order. Also he shall ensure that at least in two temples i.e Devi Tripureswari temple and Chatur Das Devata temple in Tripura, where act of animal sacrifice is carried out profusely, CC TV cameras are installed forthwith; every month he shall have a soft copy of such video recording placed on this file;
(g) District Magistrate & Collectors of all the districts shall initiate all measures of educating and sensitizing the general public of the constitutional mandate and its importance, relevance and significance, more so, of adopting an attitude of love, humanism and compassion towards all animals/birds.”
There exists catena of decisions of the Supreme Court and the High Courts, which have adjudicated similar issues. Despite so, the present decision is noteworthy for several reasons.
In a previous post, I have humbly argued that Indian courts often neglect/ignore the issue of maintainability in PILs. Such an approach goes against the guidelines, according to which locus standi is an essential test for admission of a PIL.
In the present case, before answering the substantive questions, the Tripura High Court assesses the maintainability of the petition. In the Court’s opinion, the petitioner has the locus standi to move the petition, as he is a bona fide citizen (a retired judicial officer) and his petition raises a question of public importance.
The Supreme Court, in the landmark decision of Animal Welfare Board of India v. A. Nagaraj, held that protection of life under Article 21 extends to both human beings and animals. It recognized that an animal has the fundamental right to life with dignity subject to the exception of necessity (i.e. experiments on animals for the purpose of food or for research that will be useful for saving or prolonging the life or alleviating suffering of human beings, plants or animals etc.)
The High Court in the present case extends this logic to Article 25. As discussed before, under Article 25(1) a religious practice can be restricted in light of ‘other fundamental rights.’ While traditionally, courts consider ‘other fundamental rights’ to be the ones available to individuals, the High Court interprets the term to include rights available to animals as well. Using this line of argument, the Court holds that since the act of animal sacrifice does not fall within the exception of necessity, it violates Article 21 and hence, can be restricted under Article 25(1).
The Court draws a web of provisions concerning protection and welfare of animals in the Constitution to support its above interpretation. It cites Article 48 i.e. state’s obligation to prohibit slaughter of milch and draught cattle, Article 48-A i.e. state’s obligation to safeguard wildlife, and Article 51-A i.e. state’s duty to protect and improve natural environment including wildlife and have compassion for them.
This novel approach of the Court is refreshing as it adjudicates the issue from an animal rights angle as against looking at it solely from an individual rights lens.
The Prevention of Cruelty to Animals Act, 1960 is a welfare legislation that penalizes acts of cruelty committed on animals. The Court cites the above-mentioned statute to showcase the legislature’s commitment to restrict and deter citizens from committing acts of cruelty on animals.
Interestingly, Section 28 of the Act shields an individual from any punishment under the Act, if she/he kills an animal in a manner required by the religion of any community. The said provision problematically legalises and protects the killing and torture of an animal, so long as it is termed to be in a manner required by religion. The Court here fixes the above by introducing the Essential Religious Practices test to the Section. The Court states that an individual can seek the protection of Section 28, only when such a killing of the animal is an essential part of the religion.
The present judgment is an example of a High Court’s judicial creativity in its interpretation of Article 25 and introducing an animal rights perspective to it.
I personally disagree with the use of the Essential Religious Practice test in matters of freedom of religion. However, it would be unfair to criticize the Tripura High Court for applying this doctrine, as the doctrine was a mandatory boundary within which the High Court had to function, owing to previous precedents of the Supreme Court.
A part of the judgment that deserves special attention in my opinion, is the discussion on the state government alleging that the petition was motivated. The state governmentattempted to give the case a communal angle by stating that the petitioner only challenges the practice of animal sacrifice of Hindus and not the sacrifice of goats carried out by the Muslim community. Justice Karol responded sternly by terming the plea preposterous and observed that the state cannot take such a stance without any material.
The author is an advocate based in Delhi.