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Judgment
Rajiv Sharma, ACJ.
Manoj Kumar Tiwari, J.
The Court has taken cognizance of a news item which appeared in the daily edition of ‘Times of India’ Delhi version dated 20.08.2018, under
the caption “Yogi: No animal sacrifice in open, no blood in drains†as well as on the basis of a letter addressed to one of us “Hon’ble the
Acting Chief Justice†dated 20.08.2018 with a prayer that animals should not be sacrificed on the date of Eid-ul-Juha (Bakr-Eid) in open space.
According to the news item, the Government of Uttar Pradesh has ordered that the animal sacrifice on the day of ‘Bakr-Eid’ should not be
done in an open area and the blood and offal shall not be dumped in the open drains, so that the religious sentiments of other communities may not
hurt.
The crux of the letter is that the animals are sacrificed in open place and blood flows in the drains. The remains of the sacrificed animals are
dumped in the busy junctions. The Nagar Nigam, Haldwani is running two Slaughter Houses, but these are not authorized as per the Prevention of
Cruelty to Animals (Slaughter House) Rules, 2001.
Mr. Prashant Aggarwal, President of Hindu Maha Sabha, as per letter dated 18.08.2018, addressed to the District Magistrate, has requested that
the directions be issued to ensure that the animals are neither sacrificed in the open area nor their remains are dumped in the drains.
“In the case of “The Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Muttâ€,
reported in AIR 1954 SC 282, their lordships have held that “religion†is a matter of faith with individuals or communities and it is not necessarily
theistic. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to
their spiritual well being. It will not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of
ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship, which are regarded as integral
parts of religion and the forms and observances might extend even to matters of food and dress. Their Lordships have further held that what
constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. Their Lordships have
further held that the language of Articles 25 and 26 is sufficiently clear to enable the Court to determine without the aid of foreign authorities as to
what matters come within the purview of religion and what do not. Freedom of religion in the Constitution of India is not confined to religious beliefs
only, it extends to religious practices as well, subject to the restrictions which the Constitution itself has laid down. Their lordships have held as under:
“17. It will be seen that besides the right to manage its own affairs in matters of religion which is given by cl. (b), the next two clauses of Art. 26
guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law. The
administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in
matters of religion. The latter is a fundamental right which no Legislature can take away, where as the former can be regulated by laws which the
legislature can validly impose. It is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or
institution are not matters of religion to which cl. (b) of the Article applies.
What then are matters of religion? The word ""religion"" has not been defined in the Constitution and it is a term which is hardly susceptible of any rigid
definition. In an American case --- -'Vide Davis v. Beason', (1888) 133 US 333 at p. 342 (G), it has been said :
that the term 'religion' has reference to one's views of his relation to his Creator and to the obligations they impose of reverence for His Being and
character and of obedience to His will. It is often confounded with 'cultus' of form or worship of a particular sect, but is distinguishable from the
latter.
We do not think that the above definition can be regarded as either precise or adequate. Articles 25 and 26 of our Constitution are based for the most
part upon Art 44(2), Constitution of Eire and we have great doubt whether a definition of 'religion' as given above could have been in the minds of our
Constitution-makers when they framed the Constitution.
Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like
Buddhism and Jainism which do not believe in God or in ay Intelligent First Cause. A religion undoubtedly has its basis in a system of belief or
doctrines which are regarded by those who profess that religion as conductive to their spiritual well being, but it would not be correct to say that
religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe
rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might
extend even to matters of food and dress.
The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and
this is made clear by the use of the expression ""practice of religion' in Art. Latham, C. J. of the High Court of Australia while dealing with the
provision of S. 116, Australian Constitution which 'inter alia' forbids the Commonwealth to prohibit the 'free exercise of any religion' made the
following weighty observations ---- 'Vide Adelaide Company v. The Commonwealth', 67 CLR 116 at p. 127 (H) :
It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil government should not, interfere with religious
'opinions', it nevertheless may deal as it pleases with any 'acts' which are done in pursuance of religious belief without infringing the principle of
freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of S. 116. The Section refers in express
terms to the 'exercise' of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the
exercise of religion. Thus the Section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of
religion"".
These observations apply fully to the protection of religion as guaranteed by the Indian Constitution. Restrictions by the State upon free exercise of
religion are permitted both under Arts. 25 and 26 on grounds of public order, morality and health. Clause (2) (a) of Art. 25 reserves the right of the
State to regulate or restrict any economic, financial, political and other secular activities which may be associated with religious practice and there is a
further right given to the State by sub-cl. (b).under which the State can legislate for social welfare and reform even though by so doing it might
interfere with religious practices. The learned Attorney-General lays stress upon cl (2) (a) of the Article and his contention is that all secular activities,
which may be associated with religion but do not really constitute an essential part of it, are amenable to State regulation.
The contention formulated in such broad terms cannot, we think be supported, in the first place, what constitutes the essential part of a religion is
primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that
offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain
periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion
and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not
make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters
of religion within the meaning of Art. 26(b).
What Art. 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution
except when they run counter to public order, health and normality but regulation of activities which are economic, commercial or political in their
character though they are associated with religious practices.
We may refer in this connection to a few American and Australian cases, all of which arose out of the activities or persons connected with the
religious association known as ""Jehova's witnesses"". This association of persons loosely organised throughout Australia, U.S.A. and other countries
regard the literal interpretation of the Bible as fundamental to proper religious beliefs. This belief in the supreme authority of the Bible colours many of
their political ideas. They refuse to take oath of allegiance to the king or other constituted human authority and even to show respect to the national
flag, and they decry all wars between nations and all kinds of war activities.
In 1941 a company of ""Jehova's Witnesses"" incorporated in Australia commenced proclaiming and teaching matters which were prejudicial to war
activities and the defence of the Commonwealth and steps were taken against them under the National Security regulations of the State. The legality
of the action of the Government was questioned by means of a writ petition before the High Court and the High Court held that the action of the
government was justified and that S. 116, which guaranteed freedom of religion under the Australian Constitution was not in any way infringed by the
National Security Regulations - 'Vide 67 CLR 16 at p. 127 (H)'. These were undoubtedly political activities though arising out of religious belief
entertained by a particular community.
In such cases, as Latham C. J. pointed out, the provision for protection of religion was not an absolute protection to be interpreted and applied
independently of other provisions of the Constitution. These privileges must be reconciled with the right of the State to employ the sovereign power to
ensure peace, security and orderly living without which constitutional guarantee of civil liberty would be a mockery.
It is to be noted that both in the American as well as in the Australian Constitution the right to freedom of religion has been declared in unrestricted
terms without any limitation whatsoever. Limitations, therefore, have been introduced by courts of law in these countries on grounds of morality, order
and social protection, An adjustment of the competing demands of the interests of Government and constitutional liberties is always a delicate and
difficult task and that is why we find difference of judicial opinion to such an extent in cases decided by the American courts where questions of
religious freedom were involved.
Our Constitution-makers, however, have embodie the limitations which have been evolved by judicial pronouncements in America or Australia in the
Constitution itself and the language of Arts. 25 and 26 is sufficiently clear to enable us to determine without the aid of foreign authorities as to what
matters come within the purview of religion and what do not. As we have already indicated, freedom of religion in our Constitution is not confined to
religious beliefs only, it extends to religious practices as well subject to the restrictions which the Constitution itself had laid down. Under Art. 26(b),
therefore a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential
according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.
Of course, the scale of expenses to be incurred in connection with these religious observances would be a matter of administration of property
belonging to the religious denomination and can be controlled by secular authorities in accordance with any law laid down by a competent legislature,
for it could not be the injunction of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rites and ceremonies.
It should be noticed, however, that under Art. 26 (d), it is the fundamental right of a religious denomination or its representative to administer its
properties in accordance with law, and the law, therefore, must leave the right of administration to the religious denomination itself subject to such
restrictions and regulations as it might choose to impose.
A law which takes away the right of administration from the hands of a religious denomination altogether and vests it in any other authority would
amount to a violation of the right guaranteed under cl. (d) of Art 26.â€
In the case of Ratilal Panachand Gandhi and ors. vs. State of Bombay and ors., reported in AIR 1954 SC 388, their lordships of Supreme Court
have held that a religion is not merely an opinion, doctrine or belief. It has its outward expression in the Acts as well. Article 25 protects acts done in
pursuance of religious belief as part of religion. For, religious practices or performances of acts in pursuance of religious beliefs are as much a part of
religion as faith or belief in particular doctrines. The distinction between matters of religion and those of secular administration of religious properties
may, at times, appear to be a thin one. Their lordships have held as under:
“10. Article 25 of the Constitution guarantees to every person and not merely to the citizens of India the freedom of cnscience and the right freely
to profess, practise and propagate religion. This is subject, in every case to public order, health and morality. Further exceptions are engrafted upon
this right by clause (2) of the Article. Sub-cl. (a) of cl.(2) saves the power of the State to make laws regulating or restricting any economic, financial,
political or other secular activity which may be associated with religious practice; and sub-cl. (b) reserves the State's power to make laws providing
for social reform and social welfare even though they might interfere with religious practices.
Thus, subject to the restrictions which this Article imposes, every person has a fundamental right under our Constitution not merely to entertain such
religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned
by his religion and further to propagate his religious views for the edification of others. It is immaterial also whether the propagation is made by a
person in his individual capacity or on behalf of any church or institution. The free exercise of religion by which is meant the performance of outward
acts in pursuance of religious belief, is, as stated above, subject to State regulation imposed to secure order, public health and morals of the people.
What sub-cl. (a) of cl. (2) of Article 25 contemplates is not State regulation of the religious practices as such which are protected unless they run
counter to public health or morality but of activities which are really of an economic, commercial or political character though they are associated with
religious practices.
the moot point for consideration, therefore, is where is the line to be drawn between what are matters of religion and what are not? Our
Constitution-makers have made no attempt to define what religion' is and it is certainly not possible to frame an exhaustive definition of the word'
religion' which would be applicable to all classes of persons. As has been indicated in the Madras case referred to above, the definition of 'religion'
given by Fields, J. in the American case of - 'Davis v. Beason', (1888) 133 US 333 (B), does not seem to us adequate or precise.
The term 'religion', thus observed the learned Judge in the case mentioned above, ""has reference to one's views of his relations to His Creator and to
the obligations they impose of reverence for His Being and Character and of obedience to his will. It is often confounded with 'cultus' or form of
worship of a particular sect, but is distinguishable from the latter"".
It may be noted that 'religion' is not necessarily theistic and in fact there are well-known religions in India like Buddhism and Jainism which do not
believe in the existence of God or of any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs and doctrines which are
regarded by those who profess that religion to be conducive to their spiritual well being, but it would not be correct to say, as seems to have been
suggested by one of the learned Judges of the Bombay High Court, that matters of religion are nothing but matters of religious faith and religious
belief. A religion is not merely an opinion, doctrine or belief. It has its outward expression in acts as well.
We may quote in this connection the observations of Latham, C. J. of the High Court of Australia in the case of - 'Adelaide Co. v. The
Commonwealth', 67 Com- W. L. R. 116 at p. 124 (C) where the extent of protection given to religious freedom by S. 116 of the Australian
Constitution came up for consideration.
It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil government should not interfere with religious
'opinions', it nevertheless may deal as it pleases with any 'acts which are done in pursuance of religious belief without infringing the principle of
freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of S. 116. The section refers in express
terms to the 'exercise' of religion, and therefore, it is intended to protect from the operation of any Commonwealth laws acts which are done in the
exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of
religion"".
In our opinion, as we have already said in the Madras case, these observations apply fully to the provision regarding religious freedom that is embodies
in our Constitution.
Religious practices or performances of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines.
Thus if the tenets of the Jain or the Parsi religion lay down that certain rites and ceremonies are to be performed at certain times and in a particular
manner, it cannot be said that these are secular activities partaking or commercial or economic, character simply because they involve expenditure of
money or employment of priests or the use of marketable commodities. No outside authority has any right to say that these are not essential parts of
religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the
trust estate.
Of course, the scale of expenses to be incurred in connection with these religious observances may be & is a matter of administration of property
belonging to religious institutions; and if the expenses on these heads are likely to deplete the endowed properties or affect the stability of the
institution, proper control can certainly be exercised by State agencies as the law provides. We may refer in this connection to the observation of
Davar, J. in the case of - 'Jamshed Ji. V. Soonabai', 33 Bom 122 (D), and although they were made in a case where the question was whether the
bequest of property by a Parsi testator for the purpose of perpetual celebration of ceremonies like Muktad bai. Vyezashni, etc. which are sanctioned
by the Zoroastrian religion were valid charitable gifts, the observations, we think are quite appropriate for our present purpose.
If this is the belief of the community"", thus observed the learned Judge, ""and it is proved undoubtedly to be the belief of the Zoroastrian community, -
a secular Judge is bound to accept that belief - it is not for him to sit in judgment on that belief, he has no right to interfere with the conscience of a
donor who makes a gift in favour of what he believes to be the advancement of his religion and the welfare of his community or mankind"".
These observations do, in our opinion, afford an indication of the measure of protection that is given by Art. 26(b) of our Constitution.
The distinction between matters of religion and those of secular administration of religious properties may, at times, appear to be a thin one. But in
cases of doubt, as Chief Justice Latham pointed out in the case - 'vide
Com - WLR 116 at p. 129 (C)', referred to above, the court should take a commonsense view and be actuated by considerations of practical
necessity. It is in the light of these principles that we will proceed to examine the different provisions of the Bombay Public Trusts Act, the validity of
which has been challenged on behalf of the appellants.â€
In the case of Mohd. Hanif Quareshi and others vs. State of Bihar reported in AIR 1958 SC 731, their lordships of the Hon’ble Supreme Court
have held that Bihar Preservation and Improvement of Animals Act, 1956, UP Prevention of Cow Slaughter Act, 1956 and C.P. Berar Animal
Preservation Act, 1949, so far they prohibit the slaughter of cows of all ages and calves of cows and calves of buffaloes, male and female, are
constitutionally valid. Their lordships have held that subject to restrictions, which Article 25 imposes, every person has a fundamental right under the
Constitution not merely to entertain such a religious belief, as may be approved by his judgment or conscience, but to exhibit his belief and ideas in
such overt acts as are enjoined are sanctioned by his religion and further to propagate his religious views for edification of others. The free exercise of
religion by which is meant the performance of outwards acts in pursuance of religious beliefs, subject to State regulations, imposed to secure order,
public health and morals of the people. Their lordships have further held that the sacrifice on Bakr-Id day is not an obligatory overt act for a
Mussalman to exhibit his religious belief and idea and consequently, there was no violation of the fundamental rights of the Mussalmans under Article
25(1). Their lordships have held as under:
“13. Coming now to the arguments as to the violation of the petitioners' fundamental rights, it will be convenient to take up first the complaint
founded on Art. 25 (1). That article runs as follows :
Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the
rights freely to profess, practise and propagate religion.
After referring to the provisions of cl. (2) which lays down certain exceptions which are not material for our present purpose this Court has, in Ratilal
Panachand Gandhi v. State of Bombay, 1954 SC R 1055 at pp. 1062-1063: (A I R 1954 S C 388 at p. 391) (B), explained the meaning and scope of
this article thus:
Thus, subject to the restrictions which this article imposes, every person has a fundamental right under our Constitution not merely to entertain such
religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned
by his religion and further to propagate his religious views for the edification of others. It is immaterial also whether the propagation is made by a
person in his individual capacity or on behalf of any church or institution. The free exercise of religion by which is meant the performance of outward
acts in pursuance of religious belief, is, as stated above, subject to State regulation imposed to secure order, public health and morals of the people.
What then, we inquire, are the materials placed before us to substantiate the claim that the sacrifice of a cow is enjoined or sanctioned by Islam? The
materials before us are extremely meager and it is surprising that of matter of this description the allegations in the petition should be so vague. In the
Bihar Petition No. 58 of 1956 are set out the following bald allegations:
That the petitioners further respectfully submit that the said impugned section also violates the fundamental rights of the petitioners guaranteed under
Art. 25 of the Constitution inasmuch as on the occasion of their Bakr Id Day, it is the religious practice of the petitioners' community to sacrifice a
cow on the said occasion, the poor members of the community usually sacrifice one cow for every 7 members whereas suit would require one sheep
or one goat for each member which would entail considerably more expense. As a result of the total ban imposed by the impugned section the
petitioners would not even be allowed to make the said sacrifice which is a practice and custom in their religion, enjoined upon them by the Holy
Quran, and practiced by all Muslims from time immemorial and recognised as such in India.
The allegations in the other petitions are similar. These are met by an equally bald denial in paragraph 21 of the affidavit in opposition. No affidavit has
been filed by any person specially competent to expound the relevant tenets of Islam. No reference is made in the petition to any particular Suarah of
the Holy Quran which, in terms, requires the sacrifice of a cow. All that was placed before us during the argument were Surah XXII, Verses 28 and
33, and Surah CVIII. What the Holy book enjoins is that people should pray unto the Lord and make sacrifice. We have no affidavit before us by any
Maulana explaining the implications of those verses or throwing any light on this problem. We, however, find it laid down in Hamiltion's translation of
Hedaya Book XLIII at p. 592 that it is the duty of every free Mussalman, arrived at the age of maturity, to offer a sacrifice on the Yd Kirban, or
festival of the sacrifice, provided he be then possessed of Nisab and be not a traveler, 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. The very fact of an option seems to run counter to the notion of an obligatory duty. It is,
however, pointed out 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
goates. So there may be an economic compulsion although there is no religious compulsion, It is also pointed out that from time immemorial the Indian
Musslamans have been sacrificing cows and this practice, if not enjoyed, is certainly sanctioned by their religion and it amounts to their practice of
religion protected by Art. 25. While the petitioners claim that the sacrifice of a cow is essential, the State denies the obligatory nature of the religious
practice. The fact emphasized by the respondents, cannot be disputed, namely, that many Mussalmans do not sacrifice a cow on the Bakr Id day. It is
part of the known history of India that the Moghul Emperor Babar saw the wisdom of prohibiting the slaughter of cows as and by way of religious
sacrifice and directed his son Humayun to follow this example. Similarly Emperors Akbar, Jehangir, and Ahmad shah, it is said, prohibited cow
slaughter,. Nawab Hyder Ali of Mysore made cow slaughter an offence punishable with the cutting of the hands of the offenders. Three of the
members of the Gosamvardhan Enquiry Committee set up by the Uttar Pradesh Government in 1953 were Muslims and concurred in the unanimous
recommendation for total ban on slaughter of cow, We have, however, no material on the record before us which will enable us to say, in the face of
the foregoing facts, that the sacrifice of a cow on that day in an obligatory overt act for a Mussalman to exhibit his religious belief and idea. In the
premises, it is not possible for us to uphold this claim of the petitioners.
We now proceed to test each of the impugned Acts in the light of the aforesaid conclusions we have arrived at. The Bihar Act, in so far as it
prohibits the slaughter of cows of all ages and calves of cows and calves of buffaloes, male and female, is valid. The Bihar Act makes no distinction
between she-buffaloes, bulls and bullocks (cattle and buffaloes) which are useful as milch or breeding or draught animals and those which are not and
indiscriminately prohibits slaughter of she-buffaloes, bulls and bullocks (cattle and buffalo) irrespective of their age or usefulness. In our view the ban
on slaughter or she-buffaloes, breeding bulls and working bullocks (cattle and buffalo) which are useful is reasonable but of those which are not useful
is not valid. The question as to when a she-buffalo, breeding bull or working bullock (cattle and buffalo) ceases to be useful and becomes useless and
unserviceable is matter for legislative determination. There is no provision in the Bihar Act in that behalf. Nor has our attention been drawn to any rule
which may throw any light on the point. It is, therefore, not possible to apply the doctrine of severability and uphold the ban on the slaughter of she-
buffaloes, breeding bulls and working bullocks (cattle and buffalo) which are useful as milch or breeding or working animals and strike down the ban
on the slaughter of those which are useless. The entire provision banning the slaughter of she-buffaloes, breeding bulls, and working bullocks (cattle
and buffalo) has, therefore, to be struck down. The result is that we uphold and declare that the Bihar Act in so far as it prohibits the slaughter of
cows of all ages and calves of cows and calves of buffaloes, male and female, is constitutionally valid and we hold that, in so far as it totally prohibits
the slaughter of she-buffaloes, breeding bulls and working bullocks (cattle and buffalo), without prescribing any test or requirement as to their age or
usefulness, it infringes the rights of the petitioners under Art. 19 (1) (g) and is to that extent void.
As regards the U. P. Act we uphold and declare, for reasons already stated, that it is constitutionally valid in so far as it prohibits the slaughter of
cows of all ages and calves of cows, male and female, but we hold that in so far as it purports to totally prohibit the slaughter of breeding bulls and
working bullocks without prescribing any test or requirement as to their age or usefulness, it offends against Art. 19 (1)
(g) and is to that extent void.â€
In the case of Sardar Sarup Singh and others vs. State of Punjab and others, reported in AIR 1959 SC 860, their lordships have held that freedom of
religion in our Constitution is not confined to religious beliefs only, but extends to essential religious practices as well, subject to the restrictions which
the Constitution has laid down. Their lordships have held as under:
“7. We are unable to accept this argument as correct. Article 26 of the Constitution, so far as it is relevant for our purpose, says-
Art. 26. Subject to public order, morality and health, every religious denomination or any section thereof shall have the right-to manage its own affairs
in matters of religion;
(d) to administer such property in accordance with law.
Â
The distinction between Cls. (b) and (d) strikes one at once. So far as administration of its property is concerned, the right of a religious denomination
is to be exercised in ""accordance with law'', but there is no such qualification in Cl. (b) . In The Commissioner, Hindu Religious Endowments, Madras
v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005 at pp. 1023, 1026: (AIR 1934 SC 282 at pp.289, 290) this distinction was
pointed out by this Court and it was there observed: ""The administration of its property by a religious denomination has thus been placed on a different
footing from the right to manage its own affairs in matters of religion. The latter is a fundamental right which no legislature can take away, whereas
the former can be regulated by laws which the legislature can validly impose."" Secondly, the expression used in Cl. (b) is 'in matters of religion'. In
what sense has the word 'religion' been used? This was considered in two decisions of this Court: 1954 SCR 1005: (AIR 1954 SC 282), and Sri
Venkataramana Devaru v. State of Mysore, 1958 SCR 895: (AIR 1958 SC 255) and it was held that freedom of religion in our Constitution is not
confined to religious beliefs only, but extends to essential religious practices as well subject to the restrictions which the Constitution has laid down. In
1954 SCR 1005: (AIR 1954 SC 282) (Supra) it was observed at p. 1026 (of SCR): (at p. 290 of AIR) that under Art. 26(b), a religious denomination
or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion
they hold (we emphasise here they word 'essential'). The same emphasis was laid in the later decision of 1958 SCR (AIR 1958 SC 255), where it wad
said that matters of religion in Art. 26(b) include practices which are regarded by the community as part of its religion. Two questions, therefore, arise
in connection with the argument of learned counsel for the petitioners: (1) does S. 148-B added to the principal Act by the amending Act of 1959 have
reference only to administration of property of 'Sikh gurdwaras and, therefore, must be judged by Cl. (d) of Art. 26 or (2) does it affect 'matters of
religion' within the meaning of Cl. (b) of the said Article?â€
In the case of Mahant Moti Dass vs. S.P. Sahi reported in AIR 1959 SC 942, have held that granting “matters of religionâ€, include practices
which our religious denominations regards as part of its religion, none of the provisions of the Bihar Hindu Religious Trusts Act, interferes with such
practices, nor do the provisions of the Act seek to divert the trust property or funds for purposes other than indicated by the founder of the trust. Their
lordships have held as under:
“14. With regard to Art. 26, cls. (a) and (b), the position is the same. There is no provision of the Act which interferes with the right of any
religious denomination or any section thereof to establish and maintain institutions for religious and charitable purposes; nor do the provisions of the
Act interfere with the right of any religious denomination or any section thereof to manage its own affairs in matters of religion. Learned counsel for
the appellants has drawn our attention to Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255, where following the earlier decision in 1954
SCR 1005 : (AIR 1954 SC 282), it was observed that matters of religion included even practices which are regarded by the community as part of its
religion. Our attention has also been drawn to Ratilal Panachand v. State of Bombay, 1954 SCR 1055 : (AIR l954 SC 388), in which it has been held
that a religious sect or denomination has the right to manage its own affairs in matters of religion and this includes the right to spend the trust property
or its income for religion and for religious purposes and objects indicated by the founder of the trust or established by usage obtaining in a particular
institution. It was further held therein that to divert the trust property or funds for purposes which the charity commissioner or the court considered
expedient or proper, although the original objects of the founder, could still be carried out, was an unwarranted encroachment on the freedom of
religious institutions in regard to the management of their religious affairs.
We do not think that the aforesaid decisions afford any assistance to the appellants. Granting that 'matters of religion' include practices which a
religious denomination regards as part of its religion, none of the provisions of the Act interfere with such practices; nor do the provisions of the Act
seek to divert the trust property or funds for purposes other than those indicated by the founder of the trust or those established by usage obtaining in a
particular institution. On the contrary; the provisions of the Act seek to implement the purposes for which the trust was created and prevent
mismanagement and waste by the trustee. In other words, the Act by its several provisions seeks to fulfil rather than defeat the trust. In our opinion,
there is no substance in the argument that the provisions of the Act contravene Arts. 25 and 26 of the Constitution.â€
In the case of Durgah Committee, Ajmer and anr. Vs. Syed Hussain Ali and others, reported in AIR 1961 SC 1402, their lordships have held that
matters of religion in Article 26 (b) include even practices which are regarded by the community as part of its religion in order that the practices in
question should be treated as part of religion, they must however, be regarded by the said religion as its essential and integral part; otherwise even
purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for
being treated as religious practices. Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense
be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion, their
claim for the protection under Article 26 may have to be carefully scrutinized. In other words, the protection must be confined to such religious
Practices as are an essential and integral part of it and no other. Their lordships have held as under:
“33. We will first take the argument about the infringement of the fundamental right to freedom of religion. Articles 25 and 26 together safeguard
the citizen's right to freedom of religion. Under Art. 25 (1), subject to public order, morality and health and to the other provisions of Part III, all
persons are equally entitled to freedom of conscience and their right freely to profess, practise and propagate religion. This freedom guarantees to
every citizen not only the right to entertain such religious beliefs as may appeal to his conscience but also affords him the right to exhibit his belief in
his conduct by such outward acts as may appear to him proper in order to spread his ideas for the benefit of others. Article 26 provides that subject to
public order, morality and health every religious denomination or any section thereof shall have the right-
A. to establish and maintain institutions for religious and charitable purposes;
B. to manage its own affairs in matters of religion;
C. to own and acquire movable and immovable property; and
D. to administer such property in accordance with law.
The four clauses of this article constitute the fundamental freedom guaranteed to every religious denomination or any section thereof to manage its
own affairs. It is entitled to establish institutions for religious purposes, it is entitled to manage its own affairs in the matters of religion, it is entitled to
own and acquire movable and immovable property and to administer such property in accordance with law. What the expression ""religious
denomination"" means has been considered by this Court in Commr., Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar, 1954
SCR 1005: (AIR 1954 SC 282). Mukherjea, J., as he then was, who spoke for the Court, has quoted with approval the dictionary meaning of the word
denomination"" which says that a ""denomination"" is ""a collection of individuals classed together under the same name, a religious sect or body having a
common faith and organisation and designated by a distinctive name."" The learned Judge has added that Art. 26 contemplates not merely a religious
denomination but also a section thereof. Dealing with the questions as to what are the matters of religion, the learned Judge observed that the word
religion"" has not been defined in the Constitution, and it is a term which is hardly susceptible of any rigid definition. Religion, according to him, is a
matter of faith with individuals or communities and, it is not necessarily theistic. It undoubtedly has its basis in a system of pleas or doctrines which are
regarded by those who profess that religion as conducive to their spiritual well-being, but it is not correct to say that religion is nothing else but a
doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances,
ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of
food and dress (pp. 1023, 1024)( (of SCR): (p. 290 of AIR). Dealing with the same topic, though in another context, in Venkataramana Devaru v.
State of Mysore, 1958 SCR 895: (AIR 1958 SC 255), Venkatarama Aiyar, J. spoke for the Court in the same vein and observed that it was settled
that matters of religion in Art. 26(b) include even practices which are regarded by the community as part of its religion.
And in support of this statement the learned judge referred to the observations of Mukherjea, J., which we have already cited. Whilst we are dealing
with this point it may not be out of place incidentally to strike a note of caution and observe that in order that the practices in question should be
treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which
are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious
practices within the meaning of Art.
Similarly even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential
accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under
Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an
integral part of it and no other.â€
In the case of Sardar Syedna Taher Saifuddin Sahib vs. State of Bombay, reported in AIR 1962 SC 853, their lordships have held that as the right
guaranteed by Article 25 (1) is not confined to freedom of conscience in the sense of the right to hold a belief and to propagate that belief, but includes
the right to the practice of religion, the consequences of that practice must also bear the same complexion and be the subject of a like guarantee. Their
lordships have also held that for example, there may be religious practices of sacrifice of human beings, or sacrifice of animals in a way deleterious to
the well being of the community at large. It is open to the State to intervene, by legislation, to restrict or to regulate to the extent of completely stopping
such deleterious practices. Their lordships have held as under:
“17. It is not disputed that the petitioner is the head of the Dawoodi Bohra community or that the Dawoodi Bohra community is a religious
denomination within the meaning of Art. 26 of the Constitution. It is not even disputed by the State, the only respondent in the case, that the petitioner
as the head of the community had the right, as found by the Privy Council in the case of 75 Ind App 1 : (AIR 1948 PC 66) to excommunicate a
particular member of the community for reasons and in the manner indicated in the judgment of their Lordships of the Privy Council. But what is
contended is that, as a result of the enactment in question, excommunication has been completely banned by the Legislature, which was competent to
do so, and that the ban in no way infringes Arts. 25 and 26 of the Constitution. I have already indicated my considered opinion that the Bombay
Legislature was competent to enact the Act. It now remains to consider the main point in controversy, which was, as a matter of fact, the only point
urged in support of the petition, namely, that the Act is void in so far as it is repugnant to the guaranteed rights under Arts. 25 & 26 of the Constitution.
Article 25 guarantees the right to every person, whether citizen or non-citizen, the freedom of conscience and the right freely to profess, practise and
propagate religion. But this guaranteed right is not an absolute one. It is subject to (1) public order, morality and health, (2) the other provisions of Part
III of the Constitution, (3) any existing law regulating or restricting an economic, financial, political or other secular activity which may be associated
with religious practice, (4) a law providing for social welfare and reform, and (5) any law that may be made by the State regulating or restricting the
activities aforesaid or providing for social welfare & reform. I have omitted reference to the provisions of Explanations I & II and other parts of Art.
25 which are not material to our present purpose. It is noteworthy that the right guaranteed by Art. 25 is an individual right, as distinguished from the
right of an organised body like a religious denomination or any section thereof, dealt with by Art. 26. Hence, every member of the community has the
right, so long as he does not in any way interfere with the corresponding rights of others, to profess, practise and propagate his religion, and everyone
is guaranteed his freedom of conscience. The question naturally arises : Can an individual be compelled to have a particular belief on pain of a penalty,
like excommunication ? One is entitled to believe or not to believe a particular tenet or to follow or not to follow a particular practice in matters of
religion. No one can, therefore, be compelled, against his own judgment and belief, to hold any particular creed or follow a set of religious practices.
The Constitution has left every person free in the matter of his relation to his Creator, if he believes in one. It is thus, clear that a person is left
completely free to worship God according to the dictates of his conscience, and that his right to worship as he pleased is unfettered so long as it does
not come into conflict with any restraints, as aforesaid, imposed by the State in the interest of public order etc. A person is not liable to answer for the
verity of his religious views, and he cannot be questioned as to his religious beliefs, by the State or by any other person. Thus, though, his religious
beliefs are entirely his own and his freedom to hold those beliefs is absolute, he has not the absolute right to act in any way he pleased in exercise of
his religious beliefs. He has been guaranteed the right to practice and propagate his religion, subject to the limitations aforesaid. His right to practice
his religion must also be subject to the criminal laws of the country, validly passed with reference to actions which the Legislature has declared to be
of a penal character. Laws made by a competent legislature in the interest of public order and the like, restricting religious practices, would come
within the regulating power of the State. For example, there may be religious practices of sacrifice of human beings, or sacrifice of animals in a way
deleterious to the well-being of the community at large. It is open to the State to intervene, by legislation, to restrict or to regulate to the extent of
completely stopping such deleterious practices. It must, therefore, be held that though the freedom of conscience is guaranteed to every individual so
that he may hold any beliefs he likes, his actions in pursuance of those beliefs may be liable to restrictions in the interest of the community at large, as
may be determined by common consent, that is to say, by a competent legislature. It was on such humanitarian grounds, and for the purpose of social
reform, that socalled religious practices like immolating a widow at the pyre of her deceased husband, or of dedicating a virgin girl of tender years to a
god to function as a devadasi, or of ostracising a person from all social contacts and religious communion on account of his having eaten forbidden
food or taboo, were stopped by legislation.
I am unable to accept any of these contentions as correct. (1) First I do not agree that the readings do not sufficiently raise the point at if
excommunication was part of the ""practice of a religion"" the consequences that flow therefrom were not also part of the ""practice of religion"". The
position of the Dai as the religious head of the denomination not being disputed and his power to excommunicate also not being in dispute and it also
being admitted that places of worship and burial grounds were dedicated for the use of the members of the denomination, it appears to me that the
consequence of the deprivation of the use of these properties by persons excommunicated would be logical and would flow from the order of
excommunication. It could not be contested that the consequence of a valid order of excommunication was that the person excommunicated would
cease to be entitled to the benefits of the hosts created or founded for the denomination or to the beneficial use or enjoyment of denominational
property. If the property belongs to a community and if a person by excommunication ceased to be a member of that community it is a little difficult to
see how his right to the enjoyment of the denominational property could be divorced from the religious practice which resulted in his ceasing to be a
member of the community. When once it is conceded that the right guaranteed by Art. 25 (1) is not confined to freedom of conscience in the sense of
the right to hold a belief and to propagate that belief, but includes the right to the practice of religion, the consequences of that practice must also bear
the same complexion and be the subject of a like guarantee.
(2) I shall reserve for later consideration the point about the legislation being saved as a matter of social reform under Art. 25 (2) (b), and continue to
deal with the argument that the impugned enactment was valid since it dealt only with the consequences on the civil rights, of persons ex-
communicated. It has, however, to be pointed out that though in the definition of ""excommunication"" under S. 2 (b) of the impugned Act the
consequences on the civil rights of the excommunicated persons is set out, that is for the purpose of defining an ""excommunication"". What I desire to
point out is that it is not as if the impugned enactment saves only the civil consequences of an excommunication not interfering with the other
consequences of an excommunication falling within the definition. Taking the case of the Dawoodi Bohra community, if the Dai excommunicated a
person on the ground of forswearing the basic tenets of that religious community the Dai would be committing an offence under S. 4, because the
consequences according to the law of that religious denomination would be the exclusion from civil rights of the excommunicated person. The learned
Attorney-General is therefore not right in the submission that the Act is concerned only with the civil rights of the excommunicated person. On the
other hand, it would be correct to say that the Act is concerned with excommunications which might have religious significance but which also operate
to deprive persons of their civil rights.â€
In the case of Tilkayat Shri Govindlalji Maharaj etc. vs. State of Rajasthan and others, reported in AIR 1963 SC 1638, their lordships have held
that religious practice to which Article 25 (1) refers and affairs in matters of religion to which Article 26(b) refers, include practices which are an
integral part of the religion itself and the protection guaranteed by Article 25 (1) and Article 26(b), extends to such practices. In deciding the question
as to whether a given religious practice is an integral part of the religion or not, the test always would be whether it is regarded as such by the
community following the religion or not. This question will always have to be decided by the Court and in doing so, the Court may have to enquire
whether the practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of the religion, and the
finding of the Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of
its religion. Their lordships have held as under:
“57. In 1958 SCR 895 at p. 909: (AIR 1958 SC 255 at p. 264)
Venkatarama Aiyar J. observed ""that the matters of religion in Art. 26(b) include even practices which are regarded by the community as part of its
religion.
It would thus be clear that religious practice to which Art. 25(1) refers and affairs in matters of religion to which Art. 26(b) refers, include practices
which are an integral part of the religion itself and the protection guaranteed by Article 25(1) and Art. 26 (b) extends to such practices.
In deciding the question as to whether a given religious practice is an integral part of the religion or not the test always would be whether it is regarded
as such by the community following the religion or not. This formula may in some cases present difficulties in its operation. Take the case of a
practice in relation to food or dress. If in a given proceeding, one section of the community claims that while performing certain rites white dress is an
integral part of the religion itself, whereas another section contends that yellow dress and not the white dress is the essential part of the religion, how is
the Court going to decide the question? Similar disputes may arise in regard to food. In cases where conflicting evidence is produced in respect of rival
contentions as to competing religious practices the Court may not be able to resolve the dispute by a blind application of the formula that the
community decides which practice is an integral part of its religion, because the community may speak with more than one voice and the, formula
would, therefore, break down. This question will always have to be decided by the Court and in doing so, the Court may have to enquire whether the
practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding of the
Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion. It
is in the light of this possible complication which may arise in some cases that this Court struck a note of caution in the case of Durgah Committee
Ajmer v. Syed Hussain Ali, 1962-1 SCR 383 at p. 411: (AIR 1961 SC 1402 at p. 1415) and observed that in order that the practices in question should
be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices
which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious
practices within the meaning of Art. 26.â€
In the case of His Holiness Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami etc. vs. The State of Tamil Nadu, reported in AIR 1972 SC 1586,
their lordships have held that the protection of Articles 25 and 26 is not limited to the matters of doctrines or belief. They extend also to acts done in
pursuance to religion and therefore, contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of
religion. What constitutes an essential part of a religious or religious practice has to be decided by the Courts with reference to the doctrine of a
particular religion and include practices which are regarded by the community as a part of its religion. Their lordships have held as under:
“12. This Court in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, (1962) Supp. 2 SCR 496 = (AIR 1962 SC 853) has summarised the
position in law as follows (pages 531 and 532).
The content of Arts. 25 and 26 of the Constitution came up for consideration before this Court in the Commr. Hindu Religious Endowments Madras
v. Sri Lakshmindra Thirtha Swamiar, 1954 SCR 1005 = (AIR 1954 SC 282); Jagannath Ramanuj Das v. State of Orissa, 1954 SCR 1046 = (AIR 1954
SC 400) 1958 SCR 895 = (AIR 1958 SC 255)Â Â Â Â Â Â Â Â Â Â Â Durgah Committee, Ajmer v. Syed Hussain Ali, (1962) 1 SCR 383 = (AIR
1961 SC 1402), and several other cases and the main principles underlying these provisions have by these decisions been placed beyond controversy.
The first is that the protection of these articles in not limited to matters of doctrine or belief they extend also to acts done in pursuance of religion and
therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion. The second is that
what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular
religion and include practices which are regarded and include practices which are regarded by the community as a part of its religion.
In the case of Acharya Jagdishwaranand Avadhuta etc. vs. Commissioner of Police, Calcutta and another, reported in AIR 1984 SC 51, their
lordships have held that performance of Tandava dance by Anandmargis in procession or at public places is not an essential religious rite to be
performed by every Anandmargi. Their lordships have held as under:
“8. We have already indicated that the claim that Ananda Marga is a separate religion is not acceptable in view of the clear assertion that it was
not an institutionalised religion but was a religious denomination. The principle indicated by Gajendragadkar, C. J., while speaking for the Court in
Sastri Yagnapurushadji v. Muldas Bhudardas Vaishya (1966) 3 SCR 242 : (AIR 1966 SC 1119), also supports the conclusion that Anand Marga
cannot be a separate religion by itself. In that case the question for consideration was whether the followers of Swaminarayan belonged to a religion
different from that of Hinduism.
The learned Chief Justice observed :
Even a cursory study of the growth and development of Hindu religion through the ages shows that whenever a saint or a religious reformer
attempted the task of reforming Hindu religion and fighting irrational or corrupt practices which had crept into it, a sect was born which was governed
by its own tenets, but which basically subscribed to the fundamental notions of Hindu religion and Hindu philosophy.
The averments in the writ petition would seem to indicate a situation of this type. We have also taken into consideration the writings of Shri Ananda
Murti in books like Carya-Carya, Namah Shivaya Shantaya, A Guide to Human Conduct, and Ananda Vachanamritam. These writings by Shri
Ananda Murti are essentially founded upon the essence of Hindu philosophy. The test indicated by the learned Chief Justice in the case referred to
above and the admission in paragraph 17 of the writ petition that Ananda Margis belong to the Shaivite order lead to the clear conclusion that Ananda,
Margis belong to the Hindu religion. Mr. Tarkunde for the petitioner had claimed protection of Article 25 of the Constitution but in view of our finding
that Ananda Marga is not a separate religion, application of Article 25 is not attracted.
8-A. The next aspect for consideration is whether Ananda Marga can be accepted to be a religious denomination. In the Commissioner, Hindu
Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1954 SCR 1005 at p. 1021 : (AIR 1954 SC 282 at p. 289),
Mukherjea, J. (as the learned Judge then was) spoke for the Court thus :
As regards Article 26, the first question is, what is the precise meaning or connotation of the expression 'religious denomination' and whether a Math
could come within this expression. The word 'denomination' has been defined in the Oxford Dictionary to mean 'a collection of individuals classed
together under the same name : a religious sect or body having a common faith and organisation and designated by a distinctive name'.
This test has been followed in The Durgah Committee, Ajmer v. Syed Hussain Ali, (1962) 1 SCR 393 : (AIR 1961 SC 1402). In the majority judgment
in S. P. Mittal v. Union of India, (1983) 1 SCR 729 at p. 774: (AIR 1983 SC 1 at Pp. 20-21) reference to this aspect has also been made and it has
been stated :
The words 'religious denomination' in Article 26 of the Constitution must take their colour from the word 'religion' and if this be so the expression
'religious denomination' must also satisfy the conditions :
It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, that is, a
common faith; common organisation; and designation by a distinctive name.
Ananda Marga appears to satisfy all the three conditions, viz., it is a collection of individuals who have a system of beliefs which they regard as
cunductive to their spiritual well-being; they have a common organisation and the collection of these individuals has a distinctive name. Ananda Marga,
therefore, can be appropriately treated as a religious denomination, within the Hindu religion. Article 26 of the Constitution provides that subject to
public order morality and health, every relgious denomination or any section thereof shall have the right to manage its own affairs in matters of
religion. Mukherjea, J. in Lakshmindra Thirtha Swamiar's case (AIR 1954 SC 282) (supra) adverted to; the question as to what were the matters of
religion and stated (at p. 290) :
What then are matters of religion? The word 'religion' has not been defined in the Constitution and it is a term which is hardly susceptible of any rigid
definition. In an American case (Davis v. Benson, (1888) 133 US 333 at p. 342), it has been said : ""that the term 'religion' has reference to one's views
of his relation to his Creator and to the obligations they impose of reverence for His Being and Character and of obedience to His will. It is often
confounded with cultus of form or worship of a particular sect, but is distinguishable from the latter"". We do not think that the above definition can be
regarded as either precise or adequate. Articles 25 and 26 of our Constitution are based for the most part upon Article 44 (2) of the Constitution of
Eire and we have great doubt whether a definition of 'religion' as given above could have been in the minds of our Constitution-makers when they
framed the Constitution. Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known
religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a
system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be
correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept it
might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and
observances might, extend even to matters of food and dress ............
Restrictions by the State upon free exercise of religion are permitted both under Articles 25 and 26 on grounds of public order, morality and health.
Clause (2) (a) of Article 25 reserves the right of the State to regulate or restrict any economic, financial, political and other secular activities which
may be associated with religious practice and there is a further right given to the State by sub-clause under which the State can legislate for social
welfare and reform even though by so doing it might interfere with, religious practices
...........
The contention formulated in such broad terms cannot, we think, be supported. In the first place, what constitutes the essential part of a religion is
primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that
offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain
periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion
and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not
make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters
of religion within the meaning of Article 26 (b) ........
The question for consideration now, therefore, is whether performance of Tandava dance is a religious rite or practice essential to the tenets of the
religious faith of the Ananda Margis. We have already indicated that tandava dance was not accepted as an essential religious rite of Ananda Margis
when in 1955 the Ananda Marga order was first established. It is the specific case of the petitioner that Shri Ananda Murti introduced tandava as a
part of religious rites of Ananda Margis later in 1966. Ananda Marga as a religious order is of recent origin and tandava dance as a part of religious
rites of that order is still more recent. It is doubtful as to whether in such circumstances tandava dance can be taken as an essential religious rite of
the Ananda Margis. Even conceding that it is so, it is difficult to accept Mr. Tarkunde's argument that taking out religious processions with tandava
dance is an essential religious rite of Ananda Margis. In paragraph 17 of the writ petition the petitioner pleaded that ""Tandava Dance lasts for a few
minutes where two or three persons dance by lifting one leg to the level of the chest, bringing it down and lifting the other."" In paragraph 18 it has
been pleaded that ""when the Ananda Margis greet their spiritual preceptor at the airport, etc., they arrange for a brief welcome dance of tandava
wherein one or two persons use the skull and symbolic knife and dance for two or three minutes."" In paragraph 26 it has been pleaded that ""Tandava
is a custom among the sect members and it is a customary performance and its origin is over four thousand years old, hence it is not a new invention
of Ananda Margis."" On the basis of the literature of the Ananda Marga denomination it has been contended that there is prescription of the
performance of tandava dance by every follower of Ananda Marga. Even conceding that tandava dance has been prescribed as a religious rite for
every follower of the Ananda Marga it does not follow as a necessary corollary that tandava dance to be performed in the public is a matter of
religious rite. In fact, there is no justification in any of the writings of Shri Ananda Murti that tandava dance must be performed in public. At least none
could be shown to us by Mr. Tarkunde despite an enquiry by us in that behalf. We are, therefore, not in a position to accept the contention of Mr.
Tarkunde that performance of tandava dance in a procession or at public places is an essential religious rite to be performed by every Ananda Margi.
Once we reach this conclusion, the claim that the petitioner has a fundamental right within the meaning of Article 25 or 26 to perform tandava
dance in public streets and public places has to be rejected. In view of this finding it is no more necessary to consider whether the prohibitory order
was justified in the interest of public order as provided in Article 25.
The writ petitions have to fail on our finding that performance of tandava dance in procession in the public streets or in gatherings in public places
is not an essential religious rite of the followers of the Ananda Marga. In the circumstances there will be no order as to costs.â€
In the case of Abdul Jaleel and others vs. State of U.P. and others, reported in AIR 1984 SC 882, their lordships have held that shifting of graves
is not un-Islamic or contrary to Koran especially when ordered to be done for purpose of maintaining public order, their lordships have held as under:
“4. In our order dated 23rd September. 1983 it has been pointed out that the fundamental rights conferred on all persons and every religious
denomination under Articles 25 and 26 of the Constitution are not absolute but the exercise thereof must yield to maintenance of public order and that
the suggestion mooted by the Court to shift the graves was in the larger interest of the society for the purpose of maintaining public order on every
occasion of the performance of their religious ceremonies and functions by the members of both the sects herein. It has been further pointed out that
the ecclesiastical edict or a right not to disturb an interred corpse is not absolute as will be clear from Section 176 (3) of Cr. P.C. which permits its
exhumation for the purpose of crime detection and that this provision is applicable to all irrespective of the personal law governing the dead. In
particular reference was made to one of the Fatwas relied upon by Sunni Muslims to show that even according to a Hadis quoted in that Fatwa
unnecessary shifting of graves was not permissible"" and as such the edict clearly implies that it may become necessary to shift the graves in certain
situations and that exigencies of public order would surely provide the requisite situation. Moreover, during the present hearing we persistently inquired
of counsel appearing on both the sides as to whether there was anything in the Holy Koran which prohibited shifting of graves and counsel for the
Sunni Muslims was not able to say that there was any to be found in the Koran. On the other hand, Shri Ashok Sen appearing for Shia Muslims
categorically stated that there is no text in the Holy Koran which prohibits removal or shifting of graves, he also stated that his clients (Shia Muslims)
do not regard removal or shifting of a grave (whether of a Sunni Muslim or Shia Muslim) from one place to another as un-Islamic or contrary to
Koran. That it is neither un-Islamic nor contrary to Koran is proved by two things. First, as pointed out in one of the affidavits, in a meeting convened
by the Divisional Commissioner on 4-10-1983 Maulana Abdul Salam Nomani, Pesh Imam of Gyan-Vapi Masjid, Varanasi was present and when the
Commissioner asked him regarding the shifting of the graves as directed by this Court, he replied that a grave can never be shifted except only in the
circumstances when the graves are dug on the land belonging to others and the graves are set up illegally on others' land. (In our order dated 23rd
September, 1983 we have pointed out that the two graves in question have come up on the land of Maharaja unauthorisedly and illegally in
contravention of Court's injunction) Secondly, two historical instances of such removal have been placed on record before the Court, namely, the
grave of Mumtaz Mahal was removed from Burhanpur and brought to Taj Mahal at Agra and the grave of Jahangir was removed from Kashmir and
taken to Lahore. There is, therefore, no question of this Court's direction being un-Islamic or contrary to Koran or amounting to desecration of the two
graves as suggested. As regards the contention that the impugned direction amounts to disproportionate interference with the religious practice of the
Sunni to respect their dead, we would like to place on record that during the earlier hearing several alternative suggestions were made to the Sunni
Muslims including one to stagger their ceremonies and functions during the Moharram festival to avoid a conflict with the ceremonies and functions of
the Shias but all those suggestions were spurned with the result that the spectre of yearly recrudescence of ugly incidents of violence, stone-throwing,
hurling of acid bulbs / bottles, damage and destruction to life and property - (the latest in the series even after giving the impugned direction being the
burning and destruction of the most valuable Tazia of Shias during Moharram festival of 1983, which was discovered in the morning of 11th October
1983) left no choice for the Court but to direct the shifting of the graves land this direction was also given in the larger interest of the society for the
purpose of maintaining. public order on every occasion of the performance of their religious ceremonies and functions by members of both the sects
herein. Experience of such yearly recrudescence of ugly incidents over past several years or in the alternative prohibiting ceremonies and functions of
both the sects under Section 144 Cr.P.C. necessitated the issuance of the impugned direction with a view to find a permanent solutions to this
perennial problem.â€
In the case of Bijoe Emmanuel and others vs. State of Kerala and others, reported in AIR 1987 SC 748, their lordships have held that Article 25 is
an Article of faith in the Constitution, incorporated in recognition of the principle that the real test of a true democracy is the ability of even an
insignificant minority to find its identity under the country’s Constitution. Their lordships have held as under:
“17. Turning next to the Fundamental Right guaranteed by Art. 25, we may usefully set out here that article to the extent relevant :
25.(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience
and the right freely to profess, practise and propagate religion.
Nothing in this article shall affect the operation of any existing law or prevent the State from making any law -regulating or restricting any economic,
financial, political or other secular activity which may be associated with religious practice; providing for social welfare and reform or the throwing
open of Hindu religious institutions of a public character to all classes and sections of Hindus.
(Explanations I and II not extracted as unnecessary)
Article 25 is an article of faith in the Constitution, incorporated in recognition of the principle that the real test of a true democracy is the ability of even
an insignificant minority to find its identity under the country's Constitution. This has to be borne in mind in interpreting Art. 25.â€
In the case of Dr. M. Ismail Faruquui and others vs. Union of India and others, reported in (1994) 6 SCC 360, their lordships have held that the
right to worship is not at any and every place, so long as it can be practiced effectively, unless the right to worship at a particular place is itself an
integral part of that right. Under the Mohomedan Law applicable in India, title to a Mosque can be lost by adverse possession. A mosque is not an
essential part of the practice of the religion of Islam. Their lordships have further held that there can be a religious practice but not an essential and
integral part of practice of that religion. While offering of prayer or worship is a religious practice, its offering at every location where such prayers
can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as
to form an essential or integral part thereof. Namaz (prayer) by Muslims can be offered anywhere, even in open. Their lordships have held as under:
“77. It may be noticed that Article 25 does not contain any reference to property unlike Article 26 of the Constitution. The right to practise, profess
and propagate religion guaranteed under Article 25 of the Constitution does not necessarily include the right to acquire or own or possess property.
Similarly this right does not extend to the right of worship at any and every place of worship so that any hindrance to worship at a particular place per
se may infringe the religious freedom guaranteed under Articles 25 and 26 of the Constitution. The protection under Articles 25 and 26 of the
Constitution is to religious practice which forms an essential and integral part of the religion. A practice may be a religious practice but not an essential
and integral part of practice of that religion.
While offer of prayer or worship is a religious practice, its offering at every location where such prayers can be offered would not be an essential or
integral part of such religious practice unless the place has a particular significance for that religion so as to form an essential or integral part thereof.
Places of worship of any religion having particular significance for that religion, to make it an essential or integral part of the religion, stand on a
different footing and have to be treated differently and more reverentially.â€
In the case of State of W.B. and others vs. Ashutosh Lahiri and others, reported in (1995) 1 SCC 189, their lordships have held that the legislative
intention of W.B. Animal Slaughter Control Act, 1950, is that healthy cows which are not fit to be slaughtered can not be slaughtered at all. Their
lordships have held 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 bye pass the main thrust of Section 4. For such an exercise, non-essential religious practices can not be made the basis. Their
lordships have further held that it is operational for a Muslim to sacrifice a goat for one person or a cow or a camel for 7 persons. 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 the cow is not
the only way of carrying out that sacrifice. Thus, 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. Their lordships have also held that the writ petitioners representing a Hindu segment of society had the necessary locus standi to move
the petition. Their lordships have held as under:
“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 S. 4 of the Act. In other words there is total ban against slaughtering of healthy cows and other animals
mentioned in the schedule under S. 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 S.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 S. 4(1) is concerned, if that ban is to be lifted even for a day, it was 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's case (1959 SCR 629 at page 650) : (AIR 1958 SC 731 at pp. 739-40) (supra) of the report speaking through Das C. J.
referred to the observation in Hamilton's translation of Hedaya Book, XLIII at p. 592 that it is the duty of every free Mussulman arrived at the age of
maturity, to offer a sacrifice on the YD Kirban, 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 Idd, 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 covered by the term 'any religious purpose' as employed by S.12 and should not be an
essential religious purpose. We cannot accept this view for the simple reason that S. 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
Idd 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 Idd 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 Papers Ltd.,(1991) 1 JT (SC)
151 : (AIR 1991 SC 2049) and Novopan India Ltd., Hyderabad v. C.C.E.& Customs, Hyderabad, (1994) 6 JT (SC) 80 : (1994 AIR SCW 3976). If
any optional religious purpose enabling the Muslim to sacrifice a healthy cow on Bakri Idd is made the subject matter of an exemption under S.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 Sec. 12. We must, therefore, hold that before the State can exercise the
exemption power under S. 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 by-pass 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 validity granted
under S. 12 In this connection it is also necessary to consider Quareshi's case (AIR 1958 SC 731) (supra) which was heavily relied upon by the High
Court. The total ban of slaughter of cows even on Bakri Idd day as imposed by Bihar Legislature under Bihar Prevention of Animals Act, 1955 was
attacked as violative of 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, practice and propagate religion, as slaughter of cows on Bakri Idd was
not an essential religious practice for Muslims, total ban on cow's slaughter on all days including Bakri Idd day would not be violative of Art. 25 (1).
As we have noted earlier the Constitution Bench speaking through Das C.J., held that it was optional to the Muslims to sacrifice a cow on behalf of
seven persons on Bakri Idd 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 connection, Das C.J., referred to the historical
background regarding cow slaughtering from the times of Mughal Emperors. Mughal Emperor Babar 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 Ahmed Shah, it is
said, prohibited cow slaughter. In the light of this historical background it was held that total ban on cows slaughter did not offend Art. 25(1) of the
Constitution.
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 Idd day, it cannot be a valid ground for exemption by the State under S. 12 which would in turn enable slaughtering of such cows on Makri Idd.
The contention of learned counsel for the appellant that Art. 25(1) of the Consitution deals with essential religious practices while S. 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 S.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. Sec 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 S.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 S.12 for such
a religious purpose. We, therefore, entirely concur with the view of the High Court that slaughtering of healthy cows on Bakri Idd 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
scarified for earning religious merit on Bakri Idd.
We may also deal with the effort made by the learned counsel for the appellants to distinguish Quareshi's case (AIR 1958 SC 731) on the ground
that for interpreting the term 'religious' under Arts. 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 Rajasthan, (1964) 1 SCR 561: (AIR 1963 SC 1638) and The Durgah
Committee, Ajmer v. Syed Hussian Ali, (1962) 1 SCR 383: (AIR 1961 SC 1402). These decisions are of no avail to the appellants as therein while
dealing with the question of validity of certain enactments, scope of Articles 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's case (AIR 1958 SC 731), which we have noted in detail. The effort made by
learned counsel for the appellants to get any and every religious practice covered by S.12 also is of no avail for the simple reason that in the context of
S.12 the religious practice must be such which requires the invocation of exemption provision under S.12 so as to by-pass the main thrust of S.4. For
such an exercise non-essential religious practices cannot be made the basis. Reliance placed on the decision of this Court in Hazarat Pir Mohd. Shah
v. Commr. of Income-tax, Gujarat (1967) 63 ITR 490 (SC), also is of no assistance as the same refers to S. 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 Idd
is for a religious purpose, so long as it is not shown to be an essential religious purpose as discussed by us earlier, S.12 of the Act cannot be pressed in
service for buttressing such a non-essential religious purpose.
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 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.â€
In the case of A.S. Narayana Deekshitulu vs. State of A.P. and others, reported in (1996) 9 SCC 548, their lordships have held that the only
integral or essential part of the religion is protected. Non-integral or non-essential part of religion, being secular in character, can be regulated by
legislation. The essential or integral part of religion to be ascertained from the doctrine of that religion itself according to its tenets, historical
background and change in evolved process. While performance of religious service is integral part of religion, priest or archaka performing such
service is not so. Their lordships have further held that religion not merely an opinion, doctrine or belief. It has outward expression in acts as well. It is
not every aspect of religion that has been safeguarded by Articles 25 and 26 nor has the Constitution provided that every religious activity can not be
interfered with. Every religion must believe in a conscience and ethical and moral precepts. Their lordships have further held that whether the practice
in question is religious in character and whether it could be regarded as an integral and essential part of the religion and if the Court finds upon
evidence adduced before it that it is an integral or essential part of the religion, Article 25 accords protection to it. Their lordships have held as under:
“40. From that perspective, this Court is concerned with the concept of Hindu religion and dharma... Very often one can discern and sense political
and economic motives for maintaining status quo in relation to religious forms masquerading it as religious faith and rituals bereft of substantial
religious experience. As sure, philosophers do not regard this as religion at all. They do not hesitate to say that this is politics or economic
masquerading as a religion. A very careful distinction, therefore, is required to be drawn between real and unreal religion at any stage in the
development and preservation of religion as protected by the Constitution. Within religion, there is an interpretation of reality and unreality which is
completely different experience. It is the process in which ideal is made rule. Thus perfection of religious experience can take place only when free
autonomy is afforded to an individual and worship of the infinite is made simpler, direct communion, the cornerstone of human system. Religion is
personal to the individual. Greater the law bringing an individual closer to this freedom, the higher is its laudable and idealistic purpose. Therefore, in
order that religion becomes mature internally with the human personality it is essential that mature self-enjoy must be combined with conscious
knowledge. Religious symbols can be contra-distinguished from the scientific symbols and both are as old as man himself. Through scientific symbols
there can be repetition of dogmatism and conviction of ignorance. True religion reaching up to the full reality of all knowledge, believe in God as the
unity of the whole.
It thus follows that to one who is devoted to the pursuit of knowledge, the observance of rituals is of no use since the observance of rituals and the
devotion of knowledge cannot co-exist. There is considerable incompatibility between knowledge and rituals inasmuch as their natures are entirely
antithetical. It is only he who regards himself as the agent of action that can perform the rituals; but the nature of knowledge is altogether different
and it dispels all such ideas. All the wrong ideas beginning with the identification of Self with the physical body etc., are eradicated by knowledge,
while they are reinforced by action. Ignorance of Atman is at the root of action, but the knowledge of Atman destroys both. How is it possible for one
to perform the prescribed rituals while engaged in the pursuit of knowledge inasmuch as they are incompatible! It is as much impossible as the co-
existence of light and darkness. One cannot keep one's eyes open and closed at the same time. It is equally impossible to combine knowledge and
rituals. Can one who is looking westward look eastward? How is one whose mind is directed towards the innermost Atman fit to take part in external
activities?
The importance of rituals in religious life is relevant for evocation of mystic and symbolic beginnings of the journey but on them the truth of a
religious experience cannot stand. The truth of a religious experience is far more direct, perceptible and important to human existence. It is the fullness
of religious experience which must be assured by temples, where the images of the Lord in resplendent glory is housed. To them all must have an
equal right to plead and in a manner of such directness and simplicity that every human being can approach the doors of the Eternal with equality and
with equal access and thereby exercise greater freedom in his own life. It is essential that the value of law must be tested by its certainty in reiterating
the Core of Religious Experience and if a law seeks to separate the non-essential from the essential so that the essential can have a greater focus of
attention in those who believe in such an experience, the object of such a law cannot be described as unlawful but possibly somewhat visionary.
Articles 25 and 26 deal with and protect religious freedom. Religion as used in these Articles must be construed in its strict and etymological
sense. Religion is that which binds a man with his Cosmos, his creator or super force. It is difficult and rather impossible to define or delimit the
expressions ""religion"" or ""matters of religion"" used in Articles 25 and 26. Essentially, religion is a matter of personal faith and belief of personal
relations of and individual with what he regards as Cosmos, his Maker or his Creator which, he believes, regulates the existence of insentient beings
and the forces of the universe. Religion is not necessarily theistic and in fact there are well-known religions in India itself like Budhism and Jainism
which do not believe in the existence of God. In India, Muslims believe in Allah and have faith in Islam; Christians in Christ and Christianity; Parsis in
Zorastianism; Sikhs in Gurugranth Sahib and teachings of Gurunanak Devji, its founder, which is a facet of Hinduism like Brahamos, Aryasamaj etc.
A religion undoubtedly has its basis in a system of beliefs and doctrine which are regarded by those who profess religion to be conducive to their
spiritual well-being. A religion is not merely an opinion, doctrine or belief. It has outward expression in acts as well. It is not every aspect of religion
that has been safeguarded by Articles 25 and 26 nor has the Constitution provided that every religious activity cannot be interfered with. Religion,
therefore, be construed in the context of Articles 25 and 26 in its strict and etymological sense. Every religion must believe in a conscience and ethical
and moral precepts. Therefore, whatever binds a man to his own conscience and whatever moral or ethical principle regulate the lives of men
believing in that theistic, conscience or religious belief that alone can constitute religion as understood in the Constitution which fosters feeling of
brotherhood, amenity, fraternity and equality of all persons which find their foot-hold in secular aspect of the Constitution. Secular activities and
aspects do not constitute religion which brings under its own cloak every human activity. There is nothing which a man can do, whether in the way of
wearing clothes or food or drink, which is not considered a religious activity. Every mundane or human activity was not intended to be protected by the
Constitution under the guise of religion. The approach to construe the protection of religion or matters of religion or religious practices guaranteed by
Articles 25 and 26 must be viewed with pragmatism since by the very nature of things, it would be extremely difficult, if not impossible, to define the
expression religion of matters or religion or religious belief or practice.
The religious freedom guaranteed by Articles 25 and 26, therefore, is intended to be a guide to a community-life and ordain every religion to act
according to its cultural and social demands to establish an egalitarian social order. Articles 25 and 26, therefore, strike a balance between the rigidity
of right to religious belief and faith and their intrinsic restrictions in matters of religion, religious beliefs and religious practices and guaranteed freedom
of conscience to commune with his Cosmos, Creator and realise his spiritual self. Sometimes, practices religious or secular, are intricably mixed up.
This is more particularly so in regard to Hindu religion because under the provisions of ancient Samriti, human actions from birth to death and most of
the individual actions from day to day are regarded as religious in character in one facet or the other. They sometimes claim the religious system or
sanctuary and seek the cloak of constitutional protection guaranteed by Articles 25 and 26. One, hinges upon constitutional religious model and another
diametrically more on traditional point of view. The legitimacy of the true categories is required to be adjudged strictly within the parameters of the
right of the individual and the legitimacy of the State for social progress, well-being and reforms, social intensification and national unity. Law is a
social engineering and an instrument of social change evolved by a gradual and continuous process. As Banjamin Cardozo has put it in his ""Judicial
Process,"" life is not a logic but experience. History and customs, utility and the accepted standards of right conduct are the forms which singly or in
combination shall be the progress of law. Which of these forces shall dominate in any case depends largely upon the comparative importance or value
of the social interest that will be, thereby, impaired. There shall be symmetrical development with history or custom when history or custom has been
the motive force or the chief one in giving shape to the existing rules and with logic or philosophy when the motive power has been theirs. One must
get the knowledge just as the legislature gets it from experience and study and reflection in proof from life itself. All secular activities which may be
associated with religion but which do not relate or constitute an essential part of it may be amenable to State regulations but what constitutes the
essential part of religion may be ascertained primarily from the doctrines of that religion itself according to its tenets, historical background and change
in evolved process etc. The concept of essentially is not itself a determinative factor. It is one of the circumstances to be considered in adjudging
whether the particular matters of religion or religious practices or belief are an integral part of the religion. It must be decided whether the practices or
matters are considered integral by the community itself. Though not conclusive, this is also one of the facets to be noticed. The practice in question is
religious in character and whether it could be regarded as an integral and essential part of the religion and if the Court finds upon evidence adduced
before it that it is an integral or essential part of the religion, Article 25 accords protection to it. Though the performance of certain duties is part of
religion and the person performing the duties is also part of the religion or religious faith or matters of religion, it is required to be carefully examined
and considered to decide whether it is a matter of religion or a secular management by the State. Whether the traditional practices are matters of
religion or integral and essential part of the religion and religious practice protected by Articles 25 and 26 is the question. Whether hereditary archaka
is an essential and integral part of the Hindu religion is the crucial question?
The protection of Articles 25 and 26 of the Constitution is not limited to matters of doctrine. They extend also to acts done in furtherance of
religion and. therefore, they contain a guarantee, for rituals and observances, ceremonies and modes of worship which are integral parts of the
religion. In Seshammal's case, (AIR 1972 SC 1586), (supra) on which great reliance was placed and stress was laid by the counsel on either side, this
Court while reiterating the importance of performing rituals in temples for the idol to sustain the faith of the people insisted upon the need for
performance of elaborate ritual ceremonies accompanied by chanting of mantras appropriate to the deity. This Court also recognised the placed of an
archaka and had held that the priest would occupy place of importance in the performance of ceremonial rituals by a qualified archaic who would
observe daily discipline imposed upon him by the Agamas according to tradition, usage and customs obtaine in the temple. Shri P.P. Rao, learned
senior counsel also does not dispute it.â€
In the case of Sri Adi Visheshwara of Kashi
Vishwanath Temple Varanasi and others vs. State of U.P. and others, reported in (1997) 4 SCC 606, their lordships have held that the religious
freedom guaranteed by Article 25 and 26 is intended to be a guide to a community life and ordain every religion to act according to its cultural and
social demands to establish an egalitarian social order. Article 25 and 26, therefore, strike a balance between rigidity or right to religious belief and
faith and their intrinsic restrictions in the matters of religion, religious beliefs and religious practices and guaranteed freedom of conscience to
commune with his Cosmos /Creator. Their lordships have further held that the concept of essentiality is not itself a determinative factor. It is one of
the circumstances to be considered in adjudging whether the particular matters of religion or religious practices or belief are an integral part of the
religion. It must be decided whether the practices or matters are considered integral by the community itself. Though not conclusive, this is also one of
the facets to be noticed. The practice in question is a religious in character and whether it could be regarded as an essential or integral part of religion
and if the Court finds upon evidence adduced before it that it is an integral or essential part of the religion, Article 25 protects it. Their lordships have
further held that right to religion guaranteed by Articles 25 and 26 is not absolute or unfettered right to propagate religion which is subject to legislation
by the State limiting or regulating every non-religious activity. The right to observe and practice rituals and right to manage in matters of religion are
protected under these Articles.
“28.The religious freedom guaranteed by Articles 25 and 26, therefore, is intended to be a guide to a community life and ordain every religion to act
according to its cultural and social demands to establish an egalitarian social order. Articles 25 and 26, therefore, strike a balance between the rigidity
of right to religious belief and faith and their intrinsic restrictions in matters of religion, religious beliefs and religious practices and guaranteed freedom
of conscience to commune with his Cosmos/Creator and realise his spiritual self. Sometimes, practices religious or secular, are inextricably mixed up.
This is more particularly so in regard to Hindu religion because under the provisions of the ancient Smriti, human actions from birth to death and most
of the individual actions from day-to-day are regarded as religious in character in one facet or the other. They sometimes claim the religious system or
sanctuary and seek the cloak of constitutional protection guaranteed by Articles 25 and 26. One hinges upon constitutional religious model and another
diametrically more on traditional point of view. The legitimacy of the true categories is required to be adjudged strictly within the parameters of the
right of the individual and the legitimacy of the State for social progress, well-being and reforms, social intensification and national unity. Law is a tool
of social engineering and an instrument of social change evolved by a gradual and continuous process. As Benjamin Cardozo has put it in his Judicial
Process, life is not logic but experience. History and customs, utility and the accepted standards of right conduct are the forms which singly or in
combination all be the progress of law. Which of these forces shall dominate in any case depends largely upon the comparative importance or value of
the social interest that will he, thereby, impaired. There shall be symmetrical development with history or custom when history or custom has been the
motive force or the chief one in giving shape to the existing rules and with logic or philosophy when the motive power has been theirs. One must get
the knowledge just as the legislature gets it from experience and study and reflection in proof from life itself. All secular activities which may be
associated with religion but which do not relate or constitute an essential part of it may be amenable to State regulations but what constitutes the
essential part of religion may be ascertained primarily from the doctrines of that religion itself according to its tenets, historical background and change
in evolved process etc. The concept of essentiality is not itself a determinative factor. It is one of the circumstances to be considered in adjudging
whether the particular matters of religion or religious practices or belief are an integral part of the religion. It must be decided whether the practices or
matters are considered integral by the community itself. Though not conclusive, this is also one of the facets to be noticed. The practice in question is
religious in character and whether it could be regarded as an integral and essential part of the religion and if the court finds upon evidence adduced
before it that it is an integral or essential part of the religion, Article 25 accords protection to it. Though the performance of certain duties is part of
religion and the person performing the duties is also part of the religion or religious faith or matters of religion, it is required to be carefully examined
and considered to decide whether it is a matter of religion or a secular management by the State. Whether the traditional practices are matters of
religion or integral and essential part of the religion and religious practice protected by Articles 25 and 26 is the question. And whether hereditary
archaka is an essential and integral part of the Hindu religion is the crucial question.
30.Hinduism cannot be defined in terms of Polytheism or Henotheism or Monotheism. The nature of Hindu religion ultimately is Monism/Advaita. This
is in contradistinction to Monotheism which means only one God to the exclusion of all others. Polytheism is a belief of multiplicity of Gods. On the
contrary, Monism is a spiritual belief of one Ultimate Supreme who manifests Himself as many. This multiplicity is not contrary to on-dualism,
This is the reason why Hindus start adoring any deity either handed down by tradition or brought by a Guru or Swambhuru and seek to attain the
Ultimate Supreme.
31.The protection of Articles 25 and 26 of the Constitution is not limited to matters of doctrine. They extend also to acts done in furtherance of religion
and, therefore, they contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of the religion. In
Seshammal case on which great reliance was placed and stress was laid by the counsel on either side, this court while reiterating the 9 Seshammal v.
State af T.N., 1972 2 SCC 11 importance of performing rituals in temples for the idol to sustain the faith of the people, insisted upon the need for
performance of elaborate ritual ceremonies accompanied by chanting of mantras appropriate to the deity. This court also recognised the place of an
archaka and had held that the priest would occupy place of importance in the performance of ceremonial rituals by a qualified archaka who would
observe daily discipline imposed upon him by the Agamas according to tradition, usage and customs obtained in the temple. Shri P.P. Rao, learned
Senior Counsel also does not dispute it. It was held that Articles 25 and 26 deal with and protect religious freedom. Religion as used in those articles
requires restricted interpretation in etymological sense. Religion undoubtedly has its basis in a system of beliefs which are regarded by those who
profess religion to be conducive to the future well-being. It is not merely a doctrine. It has outward expression in acts as well. It is not every aspect of
the religion that requires protection of Articles 25 and 26 nor has the Constitution provided that every religious activity would not be interfered with.
Every mundane and human activity is not intended to be protected under the Constitution in the garb of religion. Articles 25 and 26 must be viewed
with pragmatism. By the very nature of things it would be extremely difficult, if not impossible, to define the expression ""religion"" or ""matters of
religion"" or ""religious beliefs or practice"". Right to religion guaranteed by Articles 25 and 26 is not absolute or unfettered right to propagate religion
which is subject to legislation by the State limiting or regulating every non-religious activity. The right to observe and practise rituals and right to
manage in matters of religion are protected under these articles. But right to manage the Temple or endowment is not integral to religion or religious
practice or religion as such which is amenable to statutory control. These secular activities are subject to State regulation but the religion and religious
practices which are an integral part of religion are protected. It is a well-settled law that administration, management and governance of the religious
institution or endowment are secular activities and the State could regulate them by appropriate legislation. This court upheld the A.P. Act which
regulated the management of the religious institutions and endowments and abolition of hereditary rights and the right to receive offerings and plate
collections attached to the duty.â€
In the case of N.Adithayan vs. Travancore Devaswom Board and others, reported in (2002) 8 SCC 106, their lordships have held that custom or
usage, even if proved to have existed in pre-Constitution period, cannot be accepted as a source of law, if such custom violates human rights, human
dignity, concept of social equality and the specific mandate of the Constitution and law made by the Parliament. Their lordships have further held that
the vision of the founding fathers of the Constitution of liberating society from blind adherence to traditional superstitious beliefs sans reason or rational
basis.
“16. It is now well settled that Article 25 secures to every person, subject of course to public order, health and morality and other provisions of
Part-Ill, including Article 17 freedom to entertain and exhibit by outward Acts as well as propagate and disseminate such religious belief according to
his judgment and conscience for the edification of others. The right of the state to impose such restrictions as are desired or found necessary on
grounds of public order, health and morality is inbuilt in Articles 25 and 26 itself. Article 25(2) (b) ensures the right of the state to make a law providing
for social welfare and reform besides throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus and any
such rights of the state or of the communities or classes of society were also considered to need due regulation in the process of harmonizing the
various rights. The vision of the founding fathers of Constitution to liberate the society from blind and ritualistic adherence to mere traditional
superstitious beliefs sans reason or rational basis has found expression in the form of Article 17. The legal position that the protection under Articles
25 and 26 extends a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion and as to what really
constitutes an essential part of religion or religious practice has to be decided by the courts with reference to the doctrine of a particular religion or
practices regarded as parts of religion, came to be equally firmly laid down.â€
In the case of Commissioner of Police and others vs. Acharya Jagadishwarananda Avadhuta and anr, reported in (2004)12 SCC 770, their
lordships have held that the essential part of a religion means the core beliefs upon which a religion is founded. The essential practice means those
practices that are fundamental to follow religious beliefs. It is upon the cornerstone of the essential parts or practices that the superstructure of a
religion is built, without which a religion will be no religion. Test to determine whether a part or practice is essential to a religion is to find out whether
the nature of religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in
the character of that religion or in its belief, then such part could be treated as an essential or integral part. What constitutes an integral or essential
part of a religion has to be determined with reference to the doctrines, practices, tenets, historical background etc. of the given religion. In a given
case, it is for the Court to decide whether a part or practice is an essential part or practice of given religion. Their lordships have further held that in a
Bench consisting of three Judges of the Supreme Court in Ananda Marga (I) (1983) 4 SCC 522, arrived at a unanimous conclusion on facts that
Tandava dance in public is not an essential and integral part of Ananda Marga faith. The Hon’ble Court further even went to the extent of
assuming that Tandava dance was prescribed as a rite and then arrived at the conclusion that taking out Tandava dance in public is not essential to the
Ananda Marga faith.
“8. This observation cannot be considered as a clue to reopen the whole finding. By making that observation the Court was only buttressing the
finding that was already arrived at. The learned judges of the High Court wrongly proceeded on the assumption that the finding of this Court regarding
the non-essential nature of Tandava dance to the Ananda Margi faith is due to the non-availability of any literature or prescriptions by the founder.
The High Court is under the? wrong impression that an essential part of religion could be altered at any subsequent point of time.
The protection guaranteed under Articles 25 and 26 of the Constitution is not confined to matters of doctrine or belief but extends to acts done in
pursuance of religion and, therefore, contains a guarantee for rituals, observances, ceremonies and modes of worship which are essential or integral
part of religion. What constitutes an integral or essential part of religion has to be determined with reference to its doctrines, practices, tenets,
historical background etc. of the given religion. (See generally the Constitution bench decisions in. The Commissioner v. L. T. Swamiar of Srirur Mutt
1954 SCR 1005, SSTS Saheb v. State of Bombay 1962 (Supp) 2 SCR 496, and Sesharnmal v. State of Tamil Nadu, (1972) 2 SCC 11, regarding those
aspects that are to be looked into so as to determine whether a part or practice is essential or not). What is meant by 'an essential part or practices of
a religion' is now the matter for elucidation. Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice
means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices the superstructure of
religion is built. Without which, a religion will be no religion. Test to determine whether a part or practice is essential to the religion is - to find out
whether the nature of religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental
change in the character of that religion or in its belief, then such part could be treated as an essential or integral part. There cannot be additions or
subtractions to such part. Because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent
essential parts is what is protected by the Constitution. No body can say that essential part or practice of one's religion has changed from a particular
date or by an event. Such alterable parts or practices are definitely not the 'core' of religion where the belief is based and religion is founded upon. It
could only be treated as mere embellishments to the non-essential part or practices.
Here in this case Ananda Margi order was founded in 1955. Admittedly, Tandava dance was introduced as a practice in 1966. Even without the
practice of Tandava dance (between 1955 to 1966) Ananda Margi order was in existence. Therefore, Tandava dance is not the 'core' upon which
Ananda Margi order is founded. Had Tandava dance been the core of Ananda Margi faith, then without which Ananda Margi faith could not have
existed.
There is yet another difficulty in accepting the reasoning of the High Court that a subsequent addition in Carya Carya could constitute Tandava dance
as essential part of Ananda Margi faith. In a given case it is for the Court to decide whether a part or practice is an essential part or practice of .a
given religion. As a matter of fact if in the earlier litigations the Court arrives at a conclusion of fact regarding the essential part or practice of a
religion - it will create problematic situations if the religion is allowed to circumvent the decision of Court by making alteration in its doctrine. For
example, in N. Adithayan v. Travancore Devaswom Board, (2002) 8 SCC 106, this Court found that a non-Brahmin could be appointed as a poojari
(priest) in a particular temple and it is not essential to that temple practice to appoint only a brahmin as poojari. Is it open for that temple authorities to
subsequently decide only brahmins could be appointed as poojaris by way of some alterations in the relevant doctrines? We are clear that no party
could even revisit such a finding of fact. Such an attempt will result in anomalous situations and could only be treated as a circuitous way to overcome
the finding of a Court. If subsequent alterations in doctrine could be allowed to create new essentials, the Judicial process will then be reduced into a
useless formality and futile exercise. Once there is a finding of fact by the competent Court, then all other bodies are estopped from revisiting that
conclusion. On this count also the decision of High Court is liable to be set aside.â€
In the case of State of Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat and others, reported in (2005) 8 SCC 534, their lordships have held that
slaughter of cow and cow progeny on BakrI’d is neither essential to nor necessarily required as part of the religious ceremony. Their lordships
have held that an optional religious practice is not covered by Article 25 (a). Their lordships have departed from Quarishi’s case (1959 SCR 629).
Their lordships have held as under:
“22. In State of West Bengal and Ors. v. Ashutosh Lahiri, (1995) 1 SCC 189, this Court has noted that sacrifice of any animal by muslims for the
religious purpose on BakrI'd does not include slaughtering of cow as the only way of carrying out that sacrifice. Slaughtering of cow on BakrI'd is
neither essential to nor necessarily required as part of the religious ceremony. An optional religious practice is not covered by Article 25(1). On the
contrary, it is common knowledge that cow and its progeny, i.e., bull, bullocks and calves are worshipped by Hindus on specified days during Diwali
and other festivals like Makr -Sankranti and Gopashtmi. A good number of temples are to be found where the statue of 'Nandi' or 'Bull' is regularly
worshipped. However, we do not propose to delve further into the question as we must state, in all fairness to the learned counsel for the parties, that
no one has tried to build any argument either in defence or in opposition to the judgment appealed against by placing reliance on religion or Article 25
of the Constitution.
Empirical research was carried out under field conditions in North Gujarat Region (described as Zone-I) and Saurashtra region (described as Zone-II).
The average age of aged bullocks under the study was 18.75 years. The number of bullocks/pair used under the study were sufficient to draw sound
conclusions from the study. The gist of the findings arrived at, is summed up as under:
Farmer's persuasion
The aged bullocks were utilized for different purposes like agricultural operations (ploughing, planking, harrowing, hoeing, threshing) and transport-
hauling of agricultural produce, feeds and fodders of animals, drinking water, construction materials (bricks, stones, sand grits etc.) and for sugarcane
crushing/ khandsari making. On an average the bullocks were yoked for 3 to 6 hours per working day and 100 to 150 working days per year. Under
Indian conditions the reported values for working days per year ranges from 50 to 100 bullock paired days by small, medium and large farmers. Thus,
the agricultural operations-draft output are still being taken up from the aged bullocks by the farmers. The farmers feed concentrates, green fodders
and dry fodders to these aged bullocks and maintain the health of these animals considering them an important segment of their families. Farmers love
their bullocks.
Age, body measurement and body weight
The biometric and body weight of aged bullocks were within the normal range.
Horsepower generation/Work output
The aged bullocks on an average generated 0.68 hp/bullock, i.e.18.1% less than the prime/young bullocks (0.83 hp/bullock). The aged bullocks walked
comfortably with an average stride length of 1.43 meter and at the average speed of 4.49 km/hr. showing little less than young bullocks. However,
these values were normal for the aged bullocks performing light/medium work of carting. These values were slightly lower than those observed in
case of prime or young bullocks. This clearly indicates that the aged bullocks above 16 years of age proved their work efficiency for both light as well
as medium work in spite of the age bar. In addition to this, the experiment was conducted during the months of May-June, 2000 _ a stressful summer
season. Therefore, these bullocks could definitely generate more work output during winter, being a comfortable season. The aged bullock above 16
years of age performed satisfactorily and disproved that they are unfit for any type of draft output i.e. either agricultural operations, carting or other
works.
Physiological responses and haemoglobin concentration
These aged bullocks are fit to work for 6 hours (morning 3 hours + afternoon 3 hrs.) per day. Average Hb content (g%) at the start of work was
observed to be 10.72 g% and after 3 hours of work 11.14g%, indicating the healthy state of bullocks. The increment in the haemoglobin content after
3 to 4 hours of work was also within the normal range and in accordance with prime bullocks under study as well as the reported values for working
bullocks.
Distress symptoms
In the initial one hour of work, 6 bullocks (3.8%) showed panting, while 32.7% after one hour of work. After 2 hour of work, 28.2% of bullocks
exhibited salivation. Only 6.4% of the bullocks sat down/lied down and were reluctant to work after completing 2 hours of the work. The results are
indicative of the fact that majority of the aged bullocks (93%) worked normally. Summer being a stressful season, the aged bullocks exhibited distress
symptoms earlier than the prime/young bullocks. However, they maintained their physiological responses within normal range and generated
satisfactory draft power.
Even if the utility argument of the Quareshi's judgment is accepted, it cannot be accepted that bulls and bullocks become useless after the age of
It has to be said that bulls and bullocks are not useless to the society because till the end of their lives they yield excreta in the form of urine and dung
which are both extremely useful for production of bio-gas and manure. Even after their death, they supply hide and other accessories.
Therefore, to call them 'useless' is totally devoid of reality. If the expenditure on their maintenance is compared to the return which they give, at the
most, it can be said that they become 'less useful'.(Report of the National Commission on Cattle, July 2002, Volume I, p. 279.)
The Report of the National Commission on Cattle has analyzed the economic viability of cows after they stopped yielding milk and it also came to the
conclusion that it shall not be correct to call such cows 'useless cattle' as they still continue to have a great deal of utility. Similar is the case with other
cattle as well.
Economic aspects:
The cows are slaughtered in India because the owner of the cow finds it difficult to maintain her after she stops yielding milk. This is because it is
generally believed that milk is the only commodity obtained from cows, which is useful and can be sold in exchange of cash. This notion is totally
wrong. Cow yields products other than milk, which are valuable and saleable. Thus the dung as well as the urine of cow can be put to use by owner
himself or sold to persons or organizations to process them. The Commission noticed that there are a good number of organizations (goshalas) which
keep the cows rescued while being carried to slaughter houses. Very few of such cows are milk yielding. Such organizations use the urine and dung
produced by these cows to prepare Vermi-compost or any other form of bio manure and urine for preparing pest repellents. The money collected by
the sale of such products is normally sufficient to allow maintenance of the cows. In some cases, the urine and dung is used to prepare the medical
formulations also. The organizations, which are engaged in such activities, are making profits also.
Commission examined the balance sheet of some such organizations. The expenditure and income of one such organization is displayed here. In order
to make accounts simple the amounts are calculated as average per cow per day.
It is obvious that expenditure per cow is Rs. 15-25 cow/day.
While the income from sale is Rs. 25-35 cow-day.
These averages make it clear that the belief that cows which do not yield milk are unprofitable and burden for the owner is totally false. In fact it can
be said that products of cow are sufficient to maintain them even without milk. The milk in such cases is only a by_product.
It is obvious that all cow owners do not engage in productions of fertilizers or insect repellents. It can also be understood that such activity may not be
feasible for owners of a single or a few cows. In such cases, the cow's urine and dung may be supplied to such organizations, which utilize these
materials for producing finished products required for agricultural or medicinal purpose. Commission has noticed that some organizations which are
engaged in production of agricultural and medical products from cow dung and urine do purchase raw materials from nearby cow owner at a price
which is sufficient to maintain the cow.
(Report of National Commission on Cattle, July 2002, Vol. II, pp.68-69)
On the basis of the available material, we are fully satisfied to hold that the ban on slaughter of cow progeny as imposed by the impugned enactment is
in the interests of the general public within the meaning of clause (6) of Article 19 of the Constitution.
We have already pointed out that having tested the various submissions made on behalf of the writ petitioners on the constitutional anvil, the
Constitution Bench in Quareshi-I upheld the constitutional validity, as reasonable and valid, of a total ban on the slaughter of : (i) cows of all ages, (ii)
calves of cows and she- buffaloes, male or female, and (iii) she-buffaloes or breeding bulls or working bullocks (cattle as well as buffaloes) as long as
they are as milch or draught cattle. But the Constitution Bench found it difficult to uphold a total ban on the slaughter of she-buffaloes, bulls or bullocks
(cattle or buffalo) after they cease to be capable of yielding milk or of breeding or working as draught animals, on the material made available to them,
the ban failed to satisfy the test of being reasonable and ""in the interests of the general public"". It is clear that, in the opinion of the Constitution Bench,
the test provided by clause (6) of Article 19 of the Constitution was not satisfied. The findings on which the above-said conclusion is based are to be
found summarized on pp.684-687. Para-phrased, the findings are as follows:
The country is in short supply of milch cattle, breeding bulls and working bullocks, essential to maintain the health and nourishment of the nation. The
cattle population fit for breeding and work must be properly fed by making available to the useful cattle in presenti in futuro. The maintenance of
useless cattle involves a wasteful drain on the nation's cattle feed.
Total ban on the slaughter of cattle would bring a serious dislocation, though not a complete stoppage, of the business of a considerable section of the
people who are by occupation Butchers (Kasai), hide merchant and so on.
Such a ban will deprive a large section of the people of what may be their staple food or protein diet.
Preservation of useful cattle by establishment of gosadan is not a practical proposition, as they are like concentration camps where cattle are left to
die a slow death.
The breeding bulls and working bullocks (cattle and buffaloes) do not require as much protection as cows and calves do.
These findings were recorded in the judgment delivered on 23rd April, 1958. Independent India, having got rid of the shackles of foreign rule, was not
even 11 years old then. Since then, the Indian economy has made much headway and gained a foothold internationally. Constitutional jurisprudence
has indeed changed from what it was in 1958, as pointed out earlier. Our socio-economic scenario has progressed from being gloomy to a shining one,
full of hopes and expectations and determinations for present and future. Our economy is steadily moving towards prosperity in a planned way through
five year plans, nine of which have been accomplished and tenth is under way.
Â
India, as a nation and its population, its economy and its prosperity as of today are not suffering the conditions as were prevalent in 50s and 60s. The
country has achieved self-sufficiency in food production. Some of the states such as State of Gujarat have achieved self - sufficiency in cattle-feed
and fodder as well. Amongst the people there is an increasing awareness of the need for protein rich food and nutrient diet. Plenty of such food is
available from sources other than cow/cow progeny meat. Advancements in the field of Science, including Veterinary Science, have strengthened the
health and longetivity of cattle (including cow progeny). But the country's economy continues to be based on agriculture. The majority of the
agricultural holdings are small units. The country needs bulls and bullocks.
For multiple reasons which we have stated in very many details while dealing with Question-6 in Part II of the judgment, we have found that bulls and
bullocks do not become useless merely by crossing a particular age. The Statement of Objects and Reasons, apart from other evidence available,
clearly conveys that cow and her progeny constitute the backbone of Indian agriculture and economy. The increasing adoption of non-conventional
energy sources like Bio-gas plants justify the need for bulls and bullocks to live their full life in spite of their having ceased to be useful for the purpose
of breeding and draught. This Statement of Objects and Reasons tilts the balance in favour of the constitutional validity of the impugned enactment. In
Quareshi-I(Mohd. Hanif Quareshi v. Sate of Bihar, 1959 SCR 629 : AIR 1958 SC 731) the Constitution Bench chose to bear it in mind, while
upholding the constitutionality of the legislations impugned therein, insofar as the challenge by reference to Article 14 was concerned, that ""the
legislature correctly appreciates the needs of its own people"". Times have changed; so have changed the social and economic needs. The Legislature
has correctly appreciated the needs of its own people and recorded the same in the Preamble of the impugned enactment and the Statement of
Objects and Reasons appended to it. In the light of the material available in abundance before us, there is no escape from the conclusion that the
protection conferred by impugned enactment on cow progeny is needed in the interest of Nation's economy. Merely because it may cause
'inconvenience' or some 'dislocation' to the butchers, restriction imposed by the impugned enactment does not cease to be in the interest of the general
public. The former must yield to the latter.
Thus, the eminent scientist is very clear that excepting the advanced countries which have resorted to large scale mechanized farming, most of the
countries (India included) have average farms of small size. Majority of the population is engaged in farming within which a substantial proportion
belong to small and marginal farmers category. Protection of cow progeny will help them in carrying out their several agricultural operations and
related activities smoothly and conveniently. Organic manure would help in controlling pests and acidification of land apart from resuscitating and
stimulating the environment as a whole.
For the foregoing reasons, we cannot accept the view taken by the High Court. All the appeals are allowed. The impugned judgment of the High
Court is set aside. The Bombay Animal Preservation (Gujarat Amendment) Act, 1994 (Gujarat Act No. 4 of 1994) is held to be intra vires the
Constitution. All the writ petitions filed in the High Court are directed to be dismissed.†Their lordships have also held that by enacting clause (g) in
Article 51-A and giving it the status of fundamental duty, one of the objects sought to be achieved by the Parliament is to ensure that the spirit and
message of Article 48 and 48-A are honoured as a fundamental duty of every citizen.
“51. By enacting clause (g) in Article 51-A and giving it the status of a fundamental duty, one of the objects sought to be achieved by the
Parliament is to ensure that the spirit and message of Articles 48 and 48A is honoured as a fundamental duty of every citizen. The Parliament availed
the opportunity provided by the Constitution (Forty-second Amendment) Act, 1976 to improve the manifestation of objects contained in Article 48 and
48-A. While Article 48-A speaks of ""environment"", Article 51-A(g) employs the expression ""the natural environment"" and includes therein ""forests,
lakes, rivers and wild life"". While Article 48 provides for ""cows and calves and other milch and draught cattle"", Article 51-A(g) enjoins it as a
fundamental duty of every citizen ""to have compassion for living creatures"", which in its wider fold embraces the category of cattle spoken of
specifically in Article 48.
One of the other reasons which has been advanced for reversal of earlier judgments was that at the time when these earlier judgments were delivered
Article 48(A) and 51(A) were not there and impact of both these Articles were not considered. It is true that Article 48(A) which was introduced by
the 42nd Constitutional Amendment in 1976 with effect from 3.1.1977 and Article 51(A) i.e. fundamental duties were also brought about by the same
amendment. Though, these Articles were not in existence at that time but the effect of those Articles were indirectly considered in the Mohd. Hanif
Qureshi's case in 1958. It was mentioned that cow dung can be used for the purposes of manure as well as for the purpose of fuel that will be more
echo-friendly. Similarly, in Mohd. Hanif Qureshi's case their Lordships have quoted from the scriptures to show that we should have a proper
consideration for our cattle wealth and in that context their Lordships quoted in para 22 which reads as under:
[22.] The avowed object of each of the impugned Acts is to ensure the preservation, protection, and improvement of the cow and her progeny. This
solicitude arises out of the appreciation of the usefulness of cattle in a predominantly agricultural society. Early Aryans recognized its importance as
one of the most indispensable adjuncts of agriculture. It would appear that in Vedic times animal flesh formed the staple food of the people. This is
attributable to the fact that the climate in that distant past was extremely cold and the Vedic Aryans had been a pastoral people before they settled
down as agriculturists. In Rg. Vedic times goats, sheep, cows, buffaloes and even horses were slaughtered for food and for religious sacrifice and
their flesh used to be offered to the Gods. Agni is called the ""eater of ox or cow"" in Rg.Veda (VIII,43,11). The slaying of a great ox (Mahoksa) or a
great Goat"" (Mahaja) for the entertainment of a distinguished guest has been enjoined in the Satapatha Brahmana (III.4. 1-2). Yagnavalkya also
expresses a similar view (Vaj.1. 109).
An interesting account of those early days will be found in Rg.Vedic Culture by Dr. A.C. Das, Chapter 5, pages 203-5 and in the History of
Dharamasastras (Vol.II, Part II) by P.V. Kane at pages 772-773. Though the custom of slaughtering of cows and bulls prevailed during the vedic
period, nevertheless, even in the Rg. Vedic times there seems to have grown up a revulsion of feeling against the custom. The cow gradually came to
acquire a special sanctity and was called ""Aghnya"" (not to be slain). There was a school of thinkers amongst the Risis, who set their face against the
custom of killing such useful animals as the cow and the bull. High praise was bestowed on the cow as will appear from the following verses from
Rg.Veda, Book VI, Hymn XXVIII (Cows) attributed to the authorship of Sage Bhardavaja:
The kine have come and brought good fortune; let them rest in the cow-pen and be happy near us.
Here let them stay prolific, many coloured, and yield through many morns their milk for Indra.
O Cows, ye fatten e'n the worn and wasted, and make the unlovely beautiful to look on.
Prosper my house, ye with auspicious voices, your power is glorified in our assemblies.
Crop goodly pasturages and be prolific; drink pure sweet water at good drinking places.
Never be thief or sinful man your master, and may the dart of Rudra still avoid you."" (Translation by Ralph Griffith).
Verse 29 of hymn 1 in Book X of Atharva Veda forbids cow slaughter in the following words:
The slaughter of an innocent, O Kritya, is an awful deed, Slay not cow, horse, or man of ours.
Hyman 10 in the same book is a rapturous glorification of the cow:
The cow is Heaven, the cow is Eath, the cow is Vishnu, Lord of life.
The Sadhyas and the Vasus have drunk the outpourings of the cow.
Both Gods and mortal men depend for life and being on the cow. She hath become this universe; all that the sun surveys is she.
P.V. Kane argues that in the times of the Rg. Veda only barren cows, if at all, were killed for sacrifice or meat and cows yielding milk were held to
be not fit for being killed. It is only in this way, according to him that one can explain and reconcile the apparent conflict between the custom of killing
cows for food and the high praise bestowed on the cow in Rg. Vedic times. It would appear that the protest raised against the slaughter of cows
greatly increased in volume till the custom was totally abolished in a later age. The change of climate perhaps also make the use of beef as food
unnecessary and even injurious to health. Gradually cows became indicative of the wealth of the owner. The Neolithic Aryans not having been
acquainted with metals, there were no coins in current use in the earlier stages of their civilization, but as they were eminently a pastoral people almost
every family possessed a sufficient number of cattle and some of them exchanged them for the necessaries of their life. The value of cattle (Pasu)
was, therefore, very great with the early Rg. Vedic Aryans. The ancient Romans also used the word pecus or pecu (pasu) in the sense of wealth or
money. The English words, ""pecuniary"" and ""impecunious"", are derived from the Latin root pecus or pecu, originally meaning cattle. The possession of
cattle in those days denoted wealth and a man was considered rich or poor according to the large or small number of cattle that he owned. In the
Ramayana king Janaka's wealth was described by reference to the large number of herds that he owned. It appears that the cow was gradually raised
to the status of divinity. Kautilya's Arthasastra has a special chapter (Ch.XXIX) dealing with the ""superintendent of cows"" and the duties of the owner
of cows are also referred to in Ch.XI of Hindu Law in its sources by Ganga Nath Jha. There can be no gainsaying the fact that the Hindus in general
hold the cow in great reverence and the idea of the slaughter of cows for food is repugnant to their notions and this sentiment has in the past even led
to communal riots. It is also a fact that after the recent partition of the country this agitation against the slaughter of cows has been further intensified.
While we agree that the constitutional question before us cannot be decided on grounds of mere sentiment, however passionate it may be, we,
nevertheless, think that it has to be taken into consideration, though only as one of many elements, in arriving at a judicial verdict as to the
reasonableness of the restrictions.
Therefore it cannot be said that the Judges were not conscious about the usefulness and the sanctity with which the entire cow and its progeny has
been held in our country. Though Article 48(A) and 51(A) were not there, but their Lordships were indirectly conscious of the implication. Articles
48(A) and 51(A) do not substantially change the ground realities which can persuade to change the views which have been held from 1958 to 1996.
Reference was also made that for protection of top soil, the cow dung will be useful. No doubt the utility of the cow dung for protection of the top soil
is necessary but one has to be pragmatic in its approach that whether the small yield of the cow dung and urine from aged bulls and bullocks can
substantially change the top soil. In my opinion this argument was advanced only for the sake of argument but does not advance the case of the
petitioners/appellants to reverse the decision of the earlier Benches which had stood the test of time.â€
In the case of Javed and others vs. State of Haryana and others, reported in (2003) 8 SCC 369, their lordships have held that protection under
Article 25 and 26 of the Constitution is with respect to religious practice which forms an essential and part of the religion. A practice may be a
religious practice but not an essential and integral part of practice of that religion. The latter is not protected by Article 25.
“43. A bare reading of this Article deprives the submission of all its force, vigour and charm. The freedom is subject to public order, morality and
health. So the Article itself permits a legislation in the interest of social welfare and reform which are obviously part and parcel of public order,
national morality and the collective health of the nation's people.
The meaning of religion - the term as employed in Article 25 and the nature of protection conferred by Article 25 stands settled by the
pronouncement of the Constitution Bench decision in Dr. M. Ismail Faruqui and Ors. v. Union of India & Ors., (1994) 6 SCC 360. The protection
under Articles 25 and 26 of the Constitution is with respect to religious practice which forms an essential and integral part of the religion. A practice
may be a religious practice but not an essential and integral part of practice of the religion. The latter is not protected by Article 25.
In our view, a statutory provision casting disqualification on contesting, or holding, an elective office is not violative of Article 25 of the
Constitution.â€
In the case of State of Karnataka and another vs. Dr. Praveen Bhai Thogadia, reported in (2004) 4 SCC 684, their lordships have held that the
State should have no religion of its own and each person whatever his religion, must get an assurance from the State that he has the protection of law
freely to profess, practice and propagate his religion and freedom of conscience. Their lordships have also observed that the core of religion based
upon spiritual values, which the Vedas, Upanishads and Puranas were said to reveal to mankind seem to be “love others, serve others, help ever,
hurt never†and “Sarve Jana Sukhinu Bhavantooâ€.
“6. Courts should not normally interfere with matters relating to law and order which is primarily the domain of the concerned administrative
authorities. They are by and large the best to assess and to handle the situation depending upon the peculiar needs and necessities, within their special
knowledge. Their decision may involve to some extent an element of subjectivity on the basis of materials before them. Past conduct and antecedents
of a person or group or an organisation may certainly provide sufficient material or basis for the action contemplated on a reasonable expectation of
possible turn of events, which may need to be avoided in public interest and maintenance of law and order. No person, however, big he may assume
or claim to be, should be allowed irrespective of the position he may assume or claim to hold in public life to either act in a manner or make speeches
which would destroy secularism recognised by the Constitution of India, 1950 (in short the 'Constitution'). Secularism is not to be confused with
communal or religious concepts of an individual or a group of persons. It means that State should have no religion of its own and no one could proclaim
to make the State have one such an endeavour to create a theocratic State. Persons belonging to different religions live throughout the length and
breadth of the country. Each person whatever be his religion must get an assurance from the State that he has the protection of law freely to profess,
practice arid propagate his religion and freedom of conscience. Otherwise, the rule of law will become replaced by individual perceptions of ones own
presumptuous good social order. Therefore, whenever the concerned authorities in charge of law and order find that a person's speeches or actions
are likely to trigger communal antagonism and hatred resulting in fissiparous tendencies gaining foothold undermining and affecting communal
harmony, prohibitory orders need necessarily to be passed, to effectively avert such untoward happenings.
Our country is the world's most heterogeneous society, with rich heritage and our Constitution is committed to high ideas of socialism, secularism and
the integrity of the nation. As is well known, several races have converged in this sub-continent and they carried with them their own cultures,
languages, religions and customs affording positive recognition to the noble and ideal way of life - Unity in Diversity'. Though these diversities created
problems, in early days, they were mostly solved on the basis of human approaches and harmonious reconciliation of differences, usefully and
peacefully. That is how secularism has come to be treated as a part of fundamental law, and an unalignable segment of the basic structure of the
country's political system. As noted in S. R. Bommai v. Union of India etc. (1994 (3) SCC 1), freedom of religion is granted to all persons of India.
Therefore, from the point of view of the State, religion, faith or belief of a particular person has no place and given no scope for imposition on
individual citizen. Unfortunately, of late vested interests fanning religious fundamentalism of all kinds vying with each other are attempting to subject
the constitutional machinaries of the State to great stress and strain with certain quaint ideas of religious priorities, to promote their own selfish ends,
undeterred and unmindful of the disharmony it may ultimately bring about and even undermine national integration achieved with much difficulties and
laudable determination of those strong spirited servants of yester years. Religion cannot be mixed with secular activities of the State and
fundamentalism of any kind cannot be permitted to masquerade as political philosophies to the detriment of the larger interest of society and basic
requirement of a welfare State. Religion sans spiritual values may even be perilous and bring about chaos and anarchy all around. It is, therefore,
imperative that if any individual or group of persons, by their action or caustic and inflammatory speech are bent upon sowing seed of mutual hatred,
and their proposed activities are likely to create disharmony and disturb equilibrium, sacrificing public peace and tranquillity, strong action, and more so
preventive actions are essentially and vitally needed to be taken. Any speech or action which would result in ostracization of communal harmony
would destroy all those high values which the Constitution aims at. Welfare of the people is the ultimate goal of all laws, and State action and above all
the Constitution. They have one common object, that is to promote well being and larger interest of the society as a whole and not of any individual or
particular groups carrying any brand names. It is inconceivable that there can be social well being without communal harmony, love for each other and
hatred for none. The chore of religion based upon spiritual values, which the Vedas, Upanishad and Puranas were said to reveal to mankind seem to
be - ""Love others, serve others, help ever, hurt never"" and ""Sarvae Jana Sukhino Bhavantoo"". Oneupship in the name of religion, whichever it be or at
whomsoever's instance it be, would render constitutional designs countermanded and chaos, claiming its heavy toll on society and humanity as a whole,
may be the inevitable evil consequences, whereof.â€
In the case of M. Chandra vs. M. Thangamuthu and another, reported in (2010) 9 SCC 712, their lordships have held that Hinduism is not a
religion with one God or one holy scripture. The practices of Hindus vary from region to region, place to place. Hinduism does not have a single
founder, a single book, a single Church or even a single way of life.
“40. We must remember, as observed by this Court in Ganpat's case, Hinduism is not a religion with one God or one Holy Scripture. The practices
of Hindus vary from region to region, place to place. The Gods worshipped, the customs, Traditions, Practice, rituals etc, they all differ, yet all these
people are Hindus. The determination of the religious acceptance of a person must be not be made on his name or his birth. When a person intends to
profess Hinduism, and he does all that is required by the practices of Hinduism in the region or by the caste to which he belongs, and he is accepted as
a Hindu by all persons around him.
Hinduism appears to be very complex religion. It is like a centre of gravity doll which always regain its upright position however much it may be
upset. Hinduism does not have a single founder, a single book, a singe church or even a single way of life. Hinduism is not the caste system and its
hierarchies, though the system is a part of its social arrangement, based on the division of labour. Hinduism does not preach or uphold untouchability,
though the Hindu Society has practiced it, firstly due to reasons of public health and later, due to prejudices. (copied in tits and bits from the book
facets of Hinduism by Sri Swami Harshananda).â€
In the case of Union of India and others vs. Rafique Shaikh Bhikan and another, reported in (2012) 6 SCC 265, their lordships have held that Haj
subsidy was not in consonance with the tenets of Islam and have observed that there should be progressive reduction of subsidy and its complete
discontinuance in ten years.
From the statement made in paragraph 21 of the affidavit, as quoted above, it is clear that the Government of India has no control on the cost of
travel for Haj. The air fare to Jeddah for traveling for Haj is increased by airlines to more than double as a result of the regulations imposed by the
Saudi Arabian Authorities. It is illustratively stated in the affidavit that in the year 2011, the air fare for Haj was Rs.58,800/-though the normal air fare
to and from Jeddah should have been around Rs.25,000/. In the same paragraph, it is also stated that for the Haj of 2011, each pilgrim was charged
Rs.16,000/- towards air fare. In other words, what was charged from the pilgrims is slightly less than 2/3rd of the otherwise normal fare. We see no
justification for charging from the pilgrims an amount that is much lower than even the normal air fare for a return journey to Jeddah.
Before leaving the issue of Haj subsidy, we would like to point out that as the subsidy is progressively reduced and is finally eliminated, it is likely
that more and more pilgrims would like to go for Haj through PTOs. In that eventuality the need may arise for a substantial increase in the quota for
the PTOs and the concerned authorities would then also be required to make a more nuanced policy for registration of PTOs and allocation of quotas
of pilgrims to them. For formulating the PTO policy for the coming years, the concerned authorities in the Government of India should bear this in
mind. They will also be well advised to invite and take into account suggestions from private operators/ travel agents for preparing the PTO policy for
the future.â€
In the case of N.R. Nair and others etc. etc. vs. Union of India and others, reported in AIR 2000 Kerala 340, their lordships have held that
banning the training and exhibition of animals was not violative of Article 19(1)(g) of the Constitution.
In the case of Animal Welfare Board of India vs. A. Nagaraja and others, reported in (2014) 7Â Â SCC 547, their lordships have held that animal
welfare laws have to be interpreted keeping in mind the welfare of animals and species best interest subject to just exceptions out of human necessity.
Their lordships have also held that every species has a n inherent right to live and shall be protected by law, subject to the exception provided out of
necessity. Their lordships have further held that so far animals are concerned, “life†means something more than mere survival or existence or
instrumental value for human beings, but to lead a life with some intrinsic worth, honour and dignity. Animal has also honour and diginity which can not
be arbitrarily deprived of. Their lordships have held that Article 51 (g) and (h) are magna carta for protecting the life of animals.
“57. We may, at the outset, indicate unfortunately, there is no international agreement that ensures the welfare and protection of animals. United
Nations, all these years, safeguarded only the rights of human beings, not the rights of other species like animals, ignoring the fact that many of them,
including Bulls, are sacrificing their lives to alleviate human suffering, combating diseases and as food for human consumption. International
community should hang their head in shame, for not recognizing their rights all these ages, a species which served the humanity from the time of
Adam and Eve. Of course, there has been a slow but observable shift from the anthropocentric approach to a more nature’s right centric
approach in International Environmental Law, Animal Welfare Laws etc. Environmentalist noticed three stages in the development of international
environmental law instrument, which are as under:
The First Stage: Human self-interest reason for environmental protection
The instruments in this stage were fuelled by the recognition that the conservation of nature was in the common interest of all mankind.
Some the instruments executed during this time included the Declaration of the Protection of Birds Useful to Agriculture (1875),
Convention Designed to Ensure the Protection of Various Species of Wild Animals which are Useful to Man or InoffensiveÂ
(1900), Convention for the Regulation of Whaling (1931) which had the objective of ensuring the health of the whaling industry rather than
conserving or protecting the whale species.
The attitude behind these treaties was the assertion of an unlimited right to exploit natural resources â€" which derived from their right as sovereign
nations.
(b) The Second Stage: International Equity
This stage saw the extension of treaties beyond the requirements of the present generation to also meet the needs to future generations of human
beings. This shift signalled a departure from the pure tenets of anthropocentrism.
When we look at the rights of animals from the national and international perspective, what emerges is that every species has an inherent right to live
and shall be protected by law, subject to the exception provided out of necessity. Animal has also honour and dignity which cannot be arbitrarily
deprived of and its rights and privacy have to be respected and protected from unlawful attacks.
Â
Article 51A(h) says that it shall be the duty of every citizen to develop the scientific temper, humanism and the spirit of inquiry and reform. Particular
emphasis has been made to the expression “humanism†which has a number of meanings, but increasingly designates as an inclusive sensibility
for our species. Humanism also means, understand benevolence, compassion, mercy etc. Citizens should, therefore, develop a spirit of compassion and
humanism which is reflected in the Preamble of PCA Act as well as in Sections 3 and 11 of the Act. To look after the welfare and well- being of the
animals and the duty to prevent the infliction of pain or suffering on animals highlights the principles of humanism in Article 51A(h). Both Articles
51A(g) and (h) have to be read into the PCA Act, especially into Section 3 and Section 11 of the PCA Act and be applied and enforced.
We have, however, lot of avoidable non-essential human activities like Bullock-cart race, Jallikattu etc. Bulls, thinking that they have only instrumental
value are intentionally used though avoidable, ignoring welfare of the Bulls solely for human pleasure. Such avoidable human activities violate rights
guaranteed to them under Sections 3 and 11 of PCA Act. AWBI, the expert statutory body has taken up the stand that events like Jallikattu, Bullock-
cart race etc. inherently involve pain and suffering, which involves both physical and mental components, including fear and distress. Temple Grandin
and Catherine Johnson, in their work on “Animals in Translation†say:
RIGHT TO LIFE:
Every species has a right to life and security, subject to the law of the land, which includes depriving its life, out of human necessity.
Article 21 of the Constitution, while safeguarding the rights of humans, protects life and the word “life†has been given an expanded definition and
any disturbance from the basic environment which includes all forms of life, including animal life, which are necessary for human life, fall within the
meaning of Article 21 of the Constitution. So far as animals are concerned, in our view, “life†means something more than mere survival or
existence or instrumental value for human-beings, but to lead a life with some intrinsic worth, honour and dignity. Animals’ well-being and welfare
have been statutorily recognised under Sections 3 and 11 of the Act and the rights framed under the Act. Right to live in a healthy and clean
atmosphere and right to get protection from human beings against inflicting unnecessary pain or suffering is a right guaranteed to the animals under
Sections 3 and 11 of the PCA Act read with Article 51A(g) of the Constitution. Right to get food, shelter is also a guaranteed right under Sections 3
and 11 of the PCA Act and the Rules framed thereunder, especially when they are domesticated. Right to dignity and fair treatment is, therefore, not
confined to human beings alone, but to animals as well. Right, not to be beaten, kicked, over-ridder, over-loading is also a right recognized by Section
11 read with Section 3 of the PCA Act. Animals have also a right against the human beings not to be tortured and against infliction of unnecessary
pain or suffering. Penalty for violation of those rights are insignificant, since laws are made by humans. Punishment prescribed in Section 11(1) is not
commensurate with the gravity of the offence, hence being violated with impunity defeating the very object and purpose of the Act, hence the
necessity of taking disciplinary action against those officers who fail to discharge their duties to safeguard the statutory rights of animals under the
PCA Act.â€
The United States Supreme Court in the case of Abraham Braunfeld vs. Albert N. Brown, reported in 6 L. Ed. 2d 563, have held that a State has
power to provide a weekly respite from all labour and, at the same time, to get one day of the week apart from the others as a day of rest, repose,
recreation, and tranquility. The Supreme Court has also held that the constitutional guarantee of the free exercise of religion is not violated by the
Pennsylvania statute which penalizes the Sunday retail sale of certain enumerated commodities (18 Purdon’s Pa Stat Ann (4699.10)), either on its
face or as applied to retail merchants who are members of the Orthodox Jewish faith, which requires the closing of their places of business and a total
abstention of all manner of work from nightfall each Friday until nightfall each Saturday; this is so even tough enforcement of the statute would impair
the ability of such a merchant to earn a livelihood or would render him unable to continue in his business, thereby losing his capital investment.
The Supreme Court has further laid down the test to determine freedom of religion as under:
“The effect of a law as bringing about an economic disadvantage to some religious sects and not to others because of the special practices of the
various religions is not an absolute test for determining whether the law violates the constitutional guaranty of freedom of religion.â€
The United States Supreme Court in the case of Employment Division, Department of Human Resources of the State of Oregon v. Galen W.
Black, reported in 99 L Ed 2d 753, have held that the free exercise of religion clause of the Federal Constitution’s First Amendment precludes any
governmental regulation of religious beliefs as such; government may neither compel affirmation of a repugnant belief, nor penalize or discriminate
against individuals or groups because they hold religious views abhorrent to the authorities, nor employ the taxing power to inhibit dissemination of
particular religious views; however, there is a distinction between the absolute constitutional protection against governmental regulation of religious
beliefs, on the one hand, and the qualified protection against the regulation of religiously motivated conduct, on the other; the protection that the First
Amendment provides to legitimate claims to the free exercise of religion does not extend to conduct that a state has validly proscribed.
Justice Frankfurter in Minersville School
Dist. Bd. of Ed. V Gobitis, 310 US 586, 594-595, 84 L Ed 1375, 60 S Ct 1010 (1940): has held that “Conscientious scruples have not, in the course
of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious
beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the
discharge of political responsibilities.â€
In Reynolds v United States, 98 US 145,
25 L Ed 244 (1879), the United States Supreme Court has held that “Laws are made for the government of actions and while they can not
interfere with mere religious beliefs and opinions, they may with practices ….. Can a man excuse his practices to contrary because of his religious
beliefs? To permit this would be to make the professed doctrines of religious beliefs superior to the law of the land, and in effect to permit every
citizen to become a law unto himself.â€
In the case of ‘The Commissioner, Hindu Religious Endowments Madars v. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, it was held that a
religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their
spiritual well being. It will not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical
rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship, which are regarded as integral parts of
religion and the forms and observances might extend even to matters of food and dress. Their Lordships have further held that what constitutes the
essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. Their Lordships have further held that the
language of Articles 25 and 26 is sufficiently clear to enable the Court to determine without the aid of foreign authorities as to what matters come
within the purview of religion and what do not. Freedom of religion in the Constitution of India is not confined to religious beliefs only, it extends to
religious practices as well, subject to the restrictions which the Constitution itself has laid down
In Sri Adi Visheshwara of Kashi Vishwamath Temple v. State of U.P., it was held that the religious freedom guaranteed by Article 25 and 26 is
intended to be a guide to a community life and ordain every religion to act according to its cultural and social demands to establish an egalitarian social
order. Article 25 and 26, therefore strike a balance between rigidity or right to religious belief and faith and their intrinsic restrictions in the matters of
religion, religious beliefs and religious practices and guaranteed freedom of conscience to commune with his cosmos/creator. Their Lordships have
further held that the concept of essentiality is not itself a determinative factor. It is one of the circumstances to be considered in adjudging whether the
particular matters of religious or religious practices or belief are an integral part of the religion. It must be decided whether the practices or matters
are considered integral by the community itself. Though not conclusive, this is also one of the facets to be noticed. The practices in question is a
religious in character and whether it could be regarded as an essential or integral part of religion and if the Court finds upon evidence adduced before
it that it is an integral or essential part of the religion, Article 25 protects it. Their Lordships have further held that right to religion guaranteed by
Articles that right to religion guaranteed by Article 25 and 26 is not absolute or unfettered right to propagate religion which is subject to legislation by
the State limiting or regulating every non-religious activity. The right to observe and practice rituals and right to manage in matters of religion are
protected under these Articles.
In the case of Commissioner of Police and Others vs. Acharya Jagadishwarananda Avadhuta and anr., it was held that the essential part of a
religion means the core beliefs upon which a religion is founded. The essential practice means those practices that are fundamental to follow religions
beliefs. It is upon the cornerstone of the essential parts of practices that the superstructure of a religion is built, without which a religion will be no
religion. Test to determine whether a part or practice is essential to a religion is to find out whether the nature of religion will be changed without that
part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then
such part could be treated as an essential or integral part. What constitutes an integral or essential part of a religion has to be determined with
reference to the doctrines, practices, tenets, historical background etc. of the given religion.
The United States Supreme Court in the case of Abraham Braunfeld vs. Albert N. Brown,, have held that the effect of a law as bringing about an
economic disadvantage to some religious sects and not to others because of the special practices of the various religions is not an absolute test for
determining whether the law violates the positional guaranty of freedom of religion.
Their Lorships of Hon’ble Supreme Court in State of W.B. and others vs. Ashutosh Lahiri and others have held that slaughtering of the cow is
not the only way of carrying out that sacrifice. . Thus, 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.
Similarly, in the case of ‘State of Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat and others’, (2005) 8 SCC 534, their lordships have held
that slaughter of cow and cow progeny on BakrI’d is neither essential to nor necessarily required as part of the religious ceremony.
What emerges from the definite law laid down by Their Lordships of Hon’ble Supreme Court as well as by the U.S. Supreme Court is that no
person has a right to slaughter any animal in open area including roads, streets and thoroughfares in the name of religion. The animal sacrifice by
Hindus is also not essential part of Hindu religion.
We are of the considered view that no cow and cow’s progeny should be slaughtered on the day of Eid-ul-Juha (Bakr-Eid).
Accordingly, we issue the following mandatory directions: -
A. It is directed that on the day of Eid-ul-Juha (Bakr-Eid) i.e. 22/23rd August, 2018, no animals including goat/sheep/buffalo shall be sacrificed in an
open space, on any public street or any thoroughfare in front of any place of worship.
B. No cow or cow’s progeny or any camel shall be slaughtered on the day of Eid-ul-Juha (Bakr-Eid), as per the law laid down by Their Lordships,
cited hereinabove.
C. It is also directed that the blood of animals shall not be permitted to go into drains.
D. The blood and offal shall not be dumped in any open space throughout the State of Uttarakhand.
E. The Municipal Corporations, Municipal Bodies and Rural and Local Bodies throughout the State of Uttarakhand are directed to remove the remains
of sacrificed animals, if any, with due promptitude.
F. It is also clarified that the prohibited animals, as defined under “Prevention of Cruelty to Animals Act, 1960â€, shall not be sacrificed.
G. The District Magistrates throughout the State of Uttarakhand are directed to ensure compliance of this order in letter and spirit.
H. No animal shall be sacrificed inside any Temple, or in an open space or any public street or thoroughfare by the Hindus.
I. It is also ordered that in larger public interest, prayers shall be made only at the places earmarked by the District Magistrates/ SDMs throughout the
State of Uttarakhand.
J. The State administration is directed to ensure proper safety around the places where prayers are to be permitted.
Notice be issued to all concerned enabling them to file their reply within three weeks.
List after three weeks.
The Court appreciates the valuable assistance rendered by Smt. Nishat Intezar, Advocate during the course of hearing.
Let a copy of this order be supplied to the learned counsel for the parties today itself as per Rules.