Open Access Research Article
ANIMAL CRUELTY VERSUS RELIGIOUS SACRIFICE
Published Paper
Article Details
ANIMAL CRUELTY VERSUS
RELIGIOUS SACRIFICE
AUTHORED
BY - KUMAR SHREE SHYAM
INTRODUCTION
The Kerala Animals and Birds Sacrifices Prohibition Act, 1968
(hereinafter "Kerala Act") was upheld as constitutional in
Muraleedharan T v. State of Kerala[1]
on June 16, 2020, by the Kerala High Court. A Shakti Worshiper filed an appeal
against the Kerala High Court's ruling, and the Supreme Court is currently
hearing this case together with related appeals from the high courts of
Himachal Pradesh and Tripura. The current article's focus shall be on
evaluating the constitutionality of the Kerala Act.
The sticking point is the Kerala Act's ban on animal sacrifice
in temples and precincts throughout the state. In this context, the term
"sacrifice" refers to any action that "kills or maims"
animals with the goal of "propitiating a deity." The petitioners had contested
the legality of the Kerala Act on the grounds that Articles 14, 15, 25 and 26's
guarantees of fundamental rights were being broken. Additionally, the
petitioners claim that the Kerala Act violates the Prevention of Cruelty to
Animals Act, 1960 (hereafter "Central Act"), citing the principles
outlined in Article 254[2].
In response to the petitioners' above assertions, the Kerala
High Court made the following observations. To start, Articles 25 and 26
haven't been broken because killing animals and birds for sacrifice is not a
religious practice, hence they aren't protected. Second, there has not been a
violation of Article 254 because the Kerala Act and the Central Act have quite
distinct goals and purposes, hence there is no repugnance. Thirdly, there is no
evidence on file to support a claim that Articles 14 and 15 have been broken
because the petitioners' counsel did not pursue this claim. It is further
emphasised that the Kerala High Court did not take into account the appellant's
impleadment application—on whose behalf an appeal has been filed—which
expressed concerns about the rights of the Shakti Worshippers. Due to the
possibility that the Supreme Court would be considering the Shakti Worshippers'
arguments for the first time[3],
this article will also examine the allegations made by the worshippers.
Now, it will be determined whether the Kerala Act violates the
following three legal issues:
1.
Religious Rights under Articles 25 and 26
2.
Principles of Non-Arbitrariness under Articles 14 and 15
3.
Doctrine of Repugnancy enshrined under Article 254.
Challenge Based on Articles 25 And 26
A. Article 25 Challenge:
Individual Vs Legislation
According to Part III of the Indian Constitution, the right to
freedom of religion under Article 25 is subject to other fundamental rights,
public morals, and public health. Additionally, the state can impose
restrictions on nonreligious activities linked to a particular religion and
adopt laws that forbid certain behaviours or call for social reforms.
A practise must be an "essential" component of
religion in order to be included under Article 25. To prevent non-integral
secular practises from being shielded under the phoney guise of religiosity,
the question of essentiality is to be addressed by the courts based on evidence.
Essential practises are those that are fundamental to a religious belief and
serve as the foundation upon which the superstructure of religion is built.
Without essential practices, "a religion will be no religion," while
"alterable" practise of religion are unquestionably not its core and
serve only as adornments to the non-essential practises.[4]
Herein, it is respectfully submitted that, despite the complete
ban on human sacrifices and the uncontested ban on animal sacrifices imposed by
the Kerala Act for the past 52 years and by the Madras Animals and Birds
Sacrifice Prohibition Act, 1950, it is not a necessary practise of the
petitioners' Shakthi Tradition to conduct sacrifices because of its alterable
nature.
Although evaluating animal sacrifice on the basis of the
Essential Practices Test involves a number of factual complexities, it can be
reasonably concluded from the well-reasoned rulings by the High Courts of
Kerala, Tripura, and Orissa that the general legal position appears to support
the idea that animal sacrifice is not a necessary component of Hinduism.
The Honorable Supreme Court has further ruled that all kinds of
life, including animal life, are included in the definition of "life"
under Article 21, and that this implies an inherent right to life, subject to
human necessity. The Central Act defines human necessity as primarily including
the killing of animals for sustenance and for religious purposes. If animal
sacrifices are permitted in this situation, it is important to understand what
exactly falls within the "religious activities" provision. In fact,
the Judiciary's development of the Essential Practices Test was inspired by Dr.
Ambedkar's renowned argument that since religious conceptions in India
encompass all facets of life, from conception to death, the term
"religion" must be restricted to ideas that are "essentially
religious."[5] If
any religious act that involves animal death were to fall under the
"religious activities" category, it would essentially legalise the
endless mistreatment and killing of animals in the name of religion.
A court must interpret statutory provisions in accordance with
the legislative objective, which in the instance of the Central Act is to
"prevent the infliction of unnecessary pain or suffering on animals,"
as the lengthy title of the Act indicates. Accordingly, such an interpretation
would be unreasonable.
As a result, it is argued that only necessary practises should
be exempted, whereas non-necessary ones (such as animal sacrifices) ought to be
considered violations of the Article 21 rights upheld by the Tripura High
Court. Additionally, where Article 21 clashes with the entitlement under
Article 25, which is subject to "other provisions of Part III," the
Kerala Act's effects should be upheld.
B. Article 26 Challenge: Denomination Vs Legislation
1. Who worships the goddess Shakti—religious people or not?
There are two conditions that must be met in order to be covered
by Article 26. First, it must be demonstrated that the Shakti Worshippers meet
the criteria for a "religious denomination," which are a shared
religion, a common organization, and a unique name.
The establishment and management of the temples sought to be
safeguarded by the Shakti Worshippers' denomination must also be demonstrated.
It is politely argued that neither of the conditions is met in the current
instance.
According to the Delhi High Court, the First Prerequisite is
missing since Shakti Worshippers are an "amorphous" collection of
people who follow several religious traditions, failing to satisfy the Triple
Prerequisite. The Second Prerequisite appears to be missing as well because the
Shakti Worshippers must demonstrate that they founded and run every temple in
Kerala, which is a highly unsupportable claim, in order for the claim to be
upheld against the ban on sacrifice in all temples in Kerala. The Kerala Act
lawfully forbids the non-essential practise of performing animal sacrifices by
law in accordance with the values embodied in Article 26 since Article 26(d)
mandates that religious properties be managed "in accordance with
law".
2. Particular
significance and optionality
Alternately, if the sacrifice is thought to be necessary, then
the location where it is sought out to be conducted must also have
"particular significance" for the faith.[6]
The Kerala Act does not impose a general prohibition on sacrifices; rather, it
exclusively forbids them in temples and precincts. Therefore, it is necessary
to demonstrate the special significance of offering sacrifices inside Keralan
temples.
Additionally, if a practise is optional, it cannot be said to be
"essential" ; consequently, it must be demonstrated that even the
potential of performing sacrifices outside the boundaries of a temple is
forbidden by religious law. It is argued that there is little evidence to
support the "particular significance" of animal sacrifice in temples
and precincts, as opposed to everywhere else.
3. The ban: a step towards progressiveness?
Additionally, the temples are valued and frequented by tourists
as well as the locals, thus practises that can arouse disgust must be avoided
because every animal is revered in Hindu mythology and is connected to a god.
As a result of the unsanitary conditions and barbarism caused by the live blood
flowing in drains, the screams of the animals, the chanting of mantras with
severed heads, etc., offering sacrifices may also be harmful to public health
and morality. They may also cause serious panic and shock to some devotees.
Additionally, India is a developed society, and as societal
norms have changed, religion has also undergone reforms. Therefore, if proven
to be in violation of the law, non-essential religious practices that
originated purely out of superstitious beliefs can be limited. Additionally,
Article 37 charges the government with upholding the DPSPs stated in Part IV of
the Constitution. When evaluating the limitations imposed on fundamental
rights, a court must take the DPSPs and Fundamental Duties into account.[7]
If two requirements are met, namely, (1) the restriction is not
in "clear conflict" with the fundamental right, and (2) the
restriction imposed by legislation is within the "legislative
competence" of the legislature, then any restriction based on DPSPs placed
on basic rights shall be acceptable. As backed by Article 25(2), which is an
enabling provision to empower the state to enact laws for "social welfare
and reform," the responsibility of correcting religious beliefs must be
left to the state in the pluralistic Indian society.
Therefore, as confirmed by a five-judge Supreme Court panel, the
state may lawfully impose restrictions on harmful practises involving human and
animal sacrifice.[8]
The Kerala Act now provides for the application of the values
outlined in Articles 48, 51-A(g), and 51-A(h) of the Constitution. While
clauses (g) and (h) of Article 51A are essential obligations that promote the
compassionate treatment of living animals and the development of a scientific
temper, humanism, and spirit of change, Article 48 is a DPSP that emphasises
the prohibition of the killing of cattle. In light of the limitations of
Article 26 as well as the relevant DPSPs and basic Duties, it is argued that
the constraints in question in no manner directly conflict with the basic right
guaranteed by Article 26.
Challenge Based on Articles 14 And 15
A. Article 14: The
Permissible Classification Test
The broad idea of equality before the law is embodied in Article
14, and Article 15 applies the aforementioned principle to particular
circumstances. Two requirements must be met for a classification to be
considered lawful under Article 14, namely (1) an understandable differentia
and (2) a sensible relation between the differentia and the goal being pursued.
Although the Kerala Act's definition of "sacrifice" in section 2(b)
makes it appear that every act of animal sacrifice is prohibited, its
application is constrained by sections 3, 4, and 5 to only forbid acts that
take place inside temples or their grounds.
Therefore, the discernible distinction is the ban on animal
sacrifice for religious purposes inside temples or its grounds. It appears that
the Kerala Act's goal is to forbid animal sacrifice in places of worship rather
than to outlaw all forms of sacrifice. Such a law is in line with Article 26(d),
which gives the legislature the power to control how religious properties are
managed. The Kerala Act's goals are rationally tied to the discernible
distinction surrounding the ban on animal sacrifice in temples and precincts.
Animal sacrifice may not have been prohibited in certain other holy buildings,
which would surely warrant examining this exclusion under Article 14.
However, the Supreme Court has emphasised that these cases of
"under-inclusion" do not violate Article 14's guarantee of equal
treatment of the law. Additionally, as the aggregate effect should be taken
into account, individual cases involving sacrifices in places of worship, such
as the one instance of the Edapally Church, cannot be used to invalidate the
legislation.
Additionally, Justice Krishna Iyer famously stated that the
court's responsibility is "not to hammer out equal justice" but
rather to evaluate if the classification is illogical and unconnected to the
goal of the legislation. Since the Kerala Act does not appear to violate Article
14 in this instance, the result of the legislation appears to be perfectly in
line with the goals.
B. The Manifest
Arbitrariness Test, Article 14
The Manifest Arbitrariness Test has a more contentious history
than the Permissible Classification Test, which is upheld by all branches of
the judiciary. While the Supreme Court initially rejected the Arbitrariness
test in some cases, it appears that this view has lately changed under the
leadership of Justice Nariman, with a strong leaning in favour of the manifest
arbitrariness test.[9]
The legal community has reacted in a variety of ways to the
expansion of this test's application throughout time, from being restricted to
Article 14 to its current version that includes other fundamental rights as
well. Nevertheless, for the sake of conciseness, the current study will be
restricted to the most recent judicial developments regarding the enforcement
of Article 14 rights.
The Apex Court has concluded that legislation might be deemed
manifestly arbitrary if it is capricious, irrational, and/or lacking in an
acceptable governing principle, or if the consequence is excessive or
disproportionate, while also describing the parameters of the Manifest
Arbitrariness Test. The Supreme Court recently invalidated Sections 377 and 497
of the IPC based on the aforementioned standard. The Kerala Act will be judged
in two ways based on the standard of manifest arbitrariness.
1. Whether the Kerala Act is capricious, irrational and/or
without adequate determining principle
Since Section 377 was based on a theory that has been refuted by
contemporary psychiatric studies that acknowledge the lack of a mental disorder
and refer to such acts as a natural event, it has been deemed capricious and
irrational.
In other words, Section 377 is obviously arbitrary since it
punishes consensual activities that are typical of daily life by labelling them
as "against the order of nature," which makes the total result
arbitrary and capricious. Additionally, it was decided that Section 377's
guiding principle is "too open-ended" to qualify as a criminal
provision, which increases the potential for abuse.
The outdated Section 497 was also repealed since it was
"utterly irrational" in light of current constitutional principles.
It was also determined that section 497 lacked an effective guiding principle
because it is based on the archaic patriarchal principle of "preserving
the sexual exclusivity of a married woman—for the benefit of her husband, the
owner of her sexuality."
It is said that the Kerala Act's scope is unambiguous and
imposes a logical classification built upon a strong guiding concept. The
Kerala Act criminalises the practice of offering animals or birds as sacrifices
to deities within temples and other sacred spaces. This is morally right
because it upholds the values outlined in Article 21 when read in conjunction
with the DPSPs and Fundamental Duties. However, the Kerala Act's Section 2(a)
definition of the ambiguous term "precincts" as follows is likely to
pose the only difficulty.
In particular, the mandapams, prakarams, back-yards, and
foot-yards of the temple, by whatever name called, as well as the ground on
which the temple car ordinarily stands, are included in the definition of
"includes all lands and buildings near a temple, whether belonging to the
temple or not, which are ordinarily used for purposes connected with the
worship conducted inside the temple or outside".
According to the argument, the concept of "precincts"
maybe "too open-ended" (could be obviously arbitrary in light of the
Navtej Johar case) and may leave room for abuse.
However, the Rule of Severability preserves the legitimacy of
the Kerala Act since only those parts of a statute that are in conflict with
the Fundamental Rights are declared inoperative, as opposed to invalidating the
entire statute. As a result, even though Section 2(a)'s invalidation is highly
likely, the Kerala Act's overall legality may be unaffected.
Additionally, it has already been stated that the Kerala Act is
founded on an "adequate determining principle" under the examination
of the Permissible Classification Test. Therefore, even if the Kerala Act has a
good probability of passing the test under the current heading, the Supreme
Court may exercise stringent scrutiny on section 2(a)'s too-broad breadth.
2. Whether the Kerala
Act is excessive or disproportionate
The Supreme Court ruled that the potential of certain people
engaging in natural, consensual sexual activity receiving terms of up to life
in jail was excessive and disproportionate, hence Section 377[10]
also failed to pass the criteria under the present part.
The Kerala Act, on the other hand, stipulates very lenient
penalties, with the maximum being a simple sentence of three months’
imprisonment and a fine of up to 300 rupees, which in no way appears to be
excessive or disproportionate in its impact.
C. Article 15 Challenge
The state is not allowed to discriminate against a citizen on
the basis of race, caste, sex, place of birth, or, most crucially, religion,
according to Article 15(1). The Supreme Court, however, limited the scope of
Article 15(1) by only applying it to an individual citizen, therefore ruling
that a group of citizens' rights would not be protected.
Currently, the protection provided by Article 15(1) is demanded
in order to combat the alleged discrimination against the Shakti Worshippers,
who make up a "class" of citizens. Because it is an individual right,
it is argued that Shakti Worshippers cannot use the protection provided by
Article 15(1).
Challenge Based on Article 254
If both laws are under the concurrent list and cover the same
area of law, Article 254 awards parliamentary legislation priority over state
legislation. The Kerala Act is being challenged on the grounds that it violates
the Central Act by criminalising animal sacrifice in temples, which renders the
Central Act unconstitutional to the point of repugnance and shares the same
legislative domain as the Kerala Act.
The doctrine of pith and substance must be used to assess
whether repugnancy exists. The literal rule of interpretation must be observed
and if the wording is plain and unambiguous, courts should obey it. When
interpreting a statute, the legislative intent is to be ascertained from the
language employed. Furthermore, the legality of the act shall be presumed, and
it shall be the burden of the person challenging the Act to establish the
contrary.[11]
According to the Central Act, "Nothing contained in this
Act shall make the killing of any animal in a manner prescribed by the religion
of any community an offence". The phrase "nothing contained in this
Act" reasonably implies that the Central Act restricts the scope of the
Act itself in cases involving the killing of animals as "required by the
religion of any community," rather than legalising the practise.
Therefore, the Kerala Act's ban on animal sacrifice applies to the area
(including religiously motivated killings) that was "intentionally"
left out of the Central Act.
As previously stated, only behaviours that are
"essential" to a religion shall be protected, even if such acts are
"legalized". Animal sacrifice cannot be protected by the Central Act
because it is not a necessary practice[12].
The Kerala Act must pass the following three criteria in order
to be considered repugnant:
1) The Direct Conflict
Test
Repugnancy exists when there is an obvious and direct conflict
between the two laws that is "absolutely incorrigible," making it
impossible to follow one without breaking the other.
It is argued that the Kerala Act does not, in this instance,
directly conflict with the Central Act because religious sacrifices are not
covered by the Central Act in any way.
2) The Occupied Field
Test
According to these criteria, repugnancy exists even when there
isn't a clear conflict between the competing laws because they both apply to
the same body of law. However, repugnancy does not occur if the state law deals
with distinct issues even if they are of a "cognate or allied
nature," rather than the issues that are the focus of the parliamentary
legislation.
In this instance, there is no repugnance because the Kerala Act
deals with a subject that the Central Act expressly excludes from its purview:
religious sacrifice. As a result, there is no chance that the two laws could
possibly cover the same ground.
3) The Intended
Occupation Test
If state legislation goes against the aim of the federal act to
"cover the whole field," repugnancy may result.[13]
In the case of the Kerala Act, the Parliament "purposefully" limited
the scope of the Central Act to exclude animal killing "as required by
religion". Therefore, there is no repugnancy if there is no such aim.
Because it is "in consonance with the established canons of
law to tilt the balance in favour of the legislation rather than invalidating
the same, particularly when the Central and State Law can be enforced
symbiotically to achieve the ultimate goal," the doctrine of incidental
encroachment saves the inferior statute even in cases of fractional overlapping
where both statutes can coexist mutually[14].
Conclusion
If reason were to rule, the activities that constitute as
"human necessities" could only be regulated, as done by the Central
Act, and not stopped. But it is necessary to end barbarous customs like animal
and human sacrifice since they are incompatible with the values embodied in the
Indian Constitution.
By outlawing sacrifice in temples and precincts, the Kerala Act
seeks to start reforms on a small scale. The Apex Court must reject any
attempts to portray this prohibition, implemented by the government chosen by
the people, as discriminatory and abhorrent, as such claims could lead to the
start of a process known as reverse aging, which would undo countless progressive
reforms carried out over several decades by various executive regimes.
If started by the judiciary, such an unjustified repeal of
progressive executive programmes is not only harmful to constitutional ideals
but might also constitute a significant, even dangerous challenge to the
fundamental foundations of our democracy.
[2] The Constitution of India, art 254
[3] “Animal Sacrifice
An Essential Religious Practice': Plea In SC Against Kerala HC Judgment
Upholding Law Prohibiting Animals and Birds Sacrifices”, LiveLaw, June 25,
2020, available at: https://www.livelaw.in/top-stories/animal-sacrifice-an-essential-religious-practice-plea-in-sc against-kerala-hc-judgment-upholding-law-prohibiting-animals-and-birds-sacrifices-158914
[5] Gautam Bhatia, “Two cheers for the Supreme Court”, The Hindu,
Aug. 14, 2017, available at:
https://www.thehindu.com/opinion/lead/two-cheers-for-the-supreme-court/article19547560.ece
https://www.thehindu.com/opinion/lead/two-cheers-for-the-supreme-court/article19547560.ece
[7] Akhil Bharat Goseva Sangh v. State of A.P, (2006) 4 SCC 162,
para. 67
[9] Shayara Bano v. Union of India, (2017) 9
SCC 1; Navtej Singh Johar v. Union of India, (2018) 1 SCC 791; Joseph Shine v.
Union of India, AIR 2018 SC 4898.
[10] The Indian Penal Code, 1862 (Act 45 of 1862), s. 377
Article Information
ANIMAL CRUELTY VERSUS RELIGIOUS SACRIFICE
Authors: KUMAR SHREE SHYAM
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/10
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.