Last month the Tripura HC in a significant verdict (Subhas Bhattacharjee v. State of Tripura ,2019 SCC Online Tri 441) found the practice of offering sacrifice of animals in the temples of Tripura to be unconstitutional. The judgment authored by Chief Justice Karol is an addition to the catena of decisions wherein the Courts have tested the extent of protection a religious practice enjoys under Article 25 of the Constitution i.e. the Fundamental Right to Freedom of Religion. 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 animals’ rights 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. I aim to cover these in the present post. I shall begin by summarizing the facts involved in the case and the Court’s verdict. This shall be followed by a discussion on the noteworthy aspects of the judgment.
Before I discuss the judgment, a brief overview of the provisions primarily involved in the judgment would be beneficial i.e. Article 21 and 25 of the Constitution. 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. In other words, one has a right to his faith and expressing that faith and propagating it. It is to be noted that the said right is not absolute and can be curtailed by the Government under two conditions i.e. (i) on grounds of public order, morality and health and other provisions of Part III (i.e. Chapter on Fundamental Rights in the Constitution) and (ii) the practice/activity in question is not essential to the religion (also known as the essential religious practice test “ERP”). [I have explained the two provisions in a previous post here]
A. Facts and the Verdict:
In the above matter, Subhas Bhattacharjee (“Petitioner”) had filed a Public Interest Litigation Petition, before the High Court against the practice of sacrificing of animals before the Gods and Goddesses in the state. 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 (“The Respondent”) 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 which is an integral part of worship. The state government placed on record several documents to prove that the practice of sacrifice has existed since time immemorial in the temple.
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 (hymns) while the blood of the animals flows within the precincts of the temple and the drain (“practice”).
In the above backdrop, the 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:
- First, the practice is an essential religious practice (i.e. those activities in absence of which the religion is fundamentally changed)
- Second, the practice does not violate the grounds of public order, health, morality or other rights guaranteed under Part III (i.e. other fundamental rights in the Constitution)
The Court in keeping with the above mentioned test, assessed the practice in question as follows:
First, 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 animal 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. The Court while reaching this conclusion also discussed the evolutionary nature of Hindu religious practices where practices which were once considered crucial were abolished in light of social reforms.
Second, 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 effects the physical health of individuals as animal blood flows in open drains causing foul smell, further the blood gets contaminated in open drains resulting in increase of diseases adversely affecting the health of the public at large, more so the residents of the area [¶ 124].
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 Sabarimala’s 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 [¶ 115].
As a result, the Court passed the following directions:
“(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.
(d) The District Magistrate & Collectors of the respective districts and more specifically, District Magistrate & Collector, Gomati District, Udaipur as also District Magistrate & Collector, West Tripura District, Agartala under whose jurisdictions Devi Tripureswari temple and Chatur Das Devata temple are situate, respectively, shall forthwith take action for ensuring implementation of the orders; The Superintendent of Police of all the districts shall also ensure strict implementation of the order. Such officers shall be personally liable for implementing the orders;
(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;
(f) Such video recording of the temple(s) shall form part of record of the present petition and shall be constituted as part of the record of the appeal preferred, if any, by any person, including the State;
(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;
(h) The State Government shall give due publicity and also sensitize the general public of the constitutional values and passing of the order and implementation thereof.”
B. Key takeaways:
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.
- Discussion on Locus Standi:
In a previous post, I have humbly argued that Indian Courts often neglect/ignore the issue of maintainability in a Public Interest Litigation when the petition involves issues of public importance. Such an approach goes against the guidelines as framed by the Court according to which locus standi i.e. standing of the petitioner is an essential test for admission of a PIL.
In the present case before answering the substantive questions, the Court assesses the maintainability of the petition. In the Court’s opinion, the petitioner has the locus standi to move the petition, as it is a bona fide citizen (a retired judicial officer) and his petition raises a question of public importance [¶ 80].
- Reading rights of birds/animals into Article 25:
The Supreme Court in the landmark decision of Animal Welfare Board of India v. A. Nagaraj, (2017) 7 SCC 547 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.) [¶ 70].
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 the 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, 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.
- Interpreting Section 28 of the Prevention of Cruelty to Animals Act:
The Prevention of Cruelty to Animals Act,1960 is a welfare legislation that penalizes the 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.
Judges of the High Court while writing a judgment on constitutional issues have to operate within a boundary. This boundary is the judgments of the Supreme Court which are binding, and the HC cannot deviate from them, even if they disagree with them. The only option of judicial creativity available with a High Court is of providing novel constitutional interpretations on areas where no such boundary exists. 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 [I have provided my detailed reasons for disagreeing with the ERP Doctrine in a previous post]. However, it would be unfair to criticize the High Court for applying this doctrine, as the doctrine was a mandatory boundary within which the HC had to function.
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 government in its argument attempted 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.
[Views are personal]