The Curious Ways of Kerala High Court: Analysis of its Judgment Upholding Sacrifice Prohibition Law
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Jun 29, 2020, 11:26 am IST
Arjun Venugopal
Last week, a Bench of the High Court of Kerala comprising of the Chief Justice S. Manikumar and Justice Shaji P. Chaly dismissed a Public Interest Litigation filed challenging the ‘Kerala Animals and Birds Sacrifices Prohibition Act,1968’ (read judgment here). The lawbrought in the year 1968 by a government headed by E. M. S. Namboodiripad, the first Communist Chief Minister, criminalised sacrificing of animals or birds inside Hindu temples. The law was challenged primarily on the ground that it discriminates against Hindus by criminalising only a Hindu religious practice while similar practices in other religions are overlooked. The petitioners, one of whom is an instructor of Kalari (a martial art) and the other a supporter of ‘Saaktheya’ rituals involving animal sacrifice, also contended that the law prohibits religious sacrifice that is permitted by the central law, the ‘Prevention of Cruelty to Animals Act, 1960’. Petitioners also claimed that the object of the state law is not to prevent cruelty towards animals since it only prohibits killing of animals with the intention of “propitiating any deity”, inside public Hindu temples. Petitioners alleged that the law violates their fundamental right to practice their religion.
Unusual Modus, Unusual Result
The Bench proceeded to hear the matter finally at the stage of admission, without even calling upon the respondents to file pleadings. Usually, matters involving a challenge to vires of statues are heard only after pleadings are completed by parties, unless the matter is considered unworthy of admission. After undertaking the unusual course, the Bench dismissed the case by a judgment running to ninety three pages. Out of the ninety three pages, discussion about the case at hand is limited to only three or four pages with quotations from the petition and case laws covering the remaining pages.
The Division Bench held that the legislative intent behind the central statute, ‘the Prevention of Cruelty to Animals Act, 1960’ is different from that of the impugned state statute. Section 28 of the central statute is as follows:-
“28. Saving as respects manner of killing prescribed by religion.—Nothing contained in this Act shall render it an offence to kill any animal in a manner required by the religion of any community.”
Bench held that “the expression used in Section 28 is ‘killing’ and not sacrifice and, therefore, the said provision is intended to protect the manner of killing by any particular community, but not for any religious purpose.” Thus the Bench held that though the central statue exempts killing of any animal “in a manner required by the religion of any community” from the scope of cruelty, killing for a religious purpose is not exempted. In other words, if a religion merely mandates the manner of killing but not the killing itself, it is not prohibited by the central statute.
Such interpretation of Section 28 so as to include only the manner of killing prescribed by a religion for any non-religious purpose may not be correct.Unsurprisingly, the central statute does not prohibit the killing of animals, per se. It merely regulates the manner of killing of animals to mitigate cruelty in the process. Hence, Section 28, through the words “in a manner required by the religion”, excludes even that limited intervention of the central statute if the killing is for religious purpose. Moreover, even assuming that a religion merely prescribers a ‘manner of killing’ to be followed while killing for a non-religious purpose, adherence to that ‘manner of killing’ is as much for propitiating gods as in a case where killing itself is prescribed by the religion. As such even following a ‘manner of killing’ for propitiating gods is prohibited for Hindus by the impugned statute.
It is pertinent to note that the Tripura High Court in its judgment prohibiting animal sacrifice in temples in the state, which is referred to by the Bench, had taken a view that the central statute only exempts “sacrifice” that is essential to a religion and hence protected under Article 25. Curiously, after holding that the object of the impugned statute is not the same as that of the central statute viz. to prevent cruelty towards animals, Bench elaborates on the provisions in the Constitution requiring compassion towards animals in support of the impugned statute.
Essential Religious Practices Doctrine
It is not the interpretation of the central statute (which is not an implausible view) that makes the judgment strange. The petitioners had specifically contended that the sacrifice of animals and birds is an essential religious practice, which is protected under Article 25 of the Constitution of India. It was pleaded that “sacrifice is an essential part of tantric practice” and that the impugned statute is “cutting the root of Hindu religious practice as per Hindu texts”. The petitioners had also filed an application to produce extracts from “tantric texts” more than “seven centuries old” that prescribe such practices. The Bench neither permitted the production of those documents nor considered the arguments of the petitioners on the essentiality of the practice. Two applications for intervention by persons claiming to be interested in the outcome of the case had been filed. The interveners also pleaded that sacrifice is an essential practice that can be traced to religious texts. The Bench did not allow the applications for intervention or consider their arguments. Ultimately, the Bench held that “no materials are forthcoming to establish that sacrificing animals and birds are essentials of the religion to drive home the case that Act, 1968 is interfering with Articles 25 and 26 of the Constitution”. It was so held even before the state government had the occasion to deny essentiality of the practices involving sacrifice, by filing pleadings.
Violation of Article 14
The primary ground of the petitioners was that the impugned statute discriminates against Hindu religious practices while similar practices are prevalent in other religions also. The petitioners had contended that every ‘halal’ sacrifice is a sacrifice to the almighty. The persons who sought intervention, four of whom claimed to be ‘Thanthris’ in various temples and the fifth a retired civil servant who is the President of ‘Shakta Collective’, “an ardent worshipper of Thanthric path”,contended that, “not far away from the High Court Buildings in the well-known Edappally church every year in connection with a festival large number of birds are sacrificed in the church premises, cooked there and eaten as part of the religious practices”. Another person who sought to intervene produced photographs claiming to be of a ritual involving bird sacrifice at Kadamattom Church. Importantly, it is learned that the counsel for the petitioners advanced lengthy oral arguments on the point of discrimination and violation of Article 14 of the Constitution.
The arguments on violation of Article 14 of the Constitution was not gone into by the Bench by stating that, “Though grounds have been raised that other religions permit sacrifices and that there is discrimination, violating Article 14 of the Constitution of India, Mr.P.Sathisan, learned counsel for the petitioners, contended that he is not pressing the ground.”
Same Modus, Different Result
In January this year, the same Bench of Chief Justice S. Manikumar and Justice ShajiP. Chaly dismissed a Public Interest Litigation filed by a registered organisation of modern medical practitioners seeking prohibition of the practice of administering holy sacrament commemorating the last supper of Jesus Christ by distributing bread and wine in Christian churches (read judgment here). The petitioner in that case alleged that the priests serve wine from a single chalice using the same spoon into the mouth of every communicant and thatpieces of bread are also served into the mouth of the communicant by the priests with their own hand without cleaning the spoon or the hand after each serving. The petitioner contended that the activity is violative of the provisions of the ‘Food Safety and Standards Act, 2006’ and that the authorities are duty-bound to take action against the churches.
The Bench adopted the same modus of disposing of the case at the stage of admission without issuing notice to respondents. The Bench dismissed the matter while holding that though holy sacrament is ‘food’ as defined under the Food Safety and Standards Act, 2006, “Taking into account the provisions of the Act, 2006, we are of the considered opinion that the Food Safety Authority is not vested with any powers to interfere with the distribution or administering of holy sacrament in the churches”.
The Bench found that the petitioner had not pointed out any instance of someone being infected with any communicable decease from that practice. The Bench held that “it is not for the court of law to interfere with the centuries old practice, faith, custom and belief followed by the Christian communities and to issue any direction as is sought for by the petitioner”. After elaborating in detail about the significance of the said practice and referring to judgments that parties did not rely upon, the Bench concluded thus:-
“16. Thinking in that manner, receiving holy sacrament by a believer is nothing but an expression of his/her faith in the said practice followed for centuries. So also, the belief of a citizen in a particular practice followed by a religious denomination is also an expression of freedom to think and accept the faith he/she believes to be true and is entitled as of right to conserve the said faith.”
“18. So much so, the practice of receiving the holy sacrament by members of the religious denomination in a manner followed in the community is the personal liberty of the members and well protected under Article 21 of the Constitution. Such a religious practice is an essential and integral part of it.
19. Therefore, in our considered opinion, the receipt of the holy sacrament by the Christians is a matter of absolute faith and belief of the Christians, and unless and until it is established that the act of administration of holy sacrament has interfered with the public order, morality and health, interference under Article 226 is next to impossibility. However, if at all any changes are to be made in the practice, beliefs and faith, it is to be done by the Church authorities themselves and it is not possible for the writ court under Article 226 of the Constitution of India to issue any directions to the State and its authorities to take action in the matter of administration of holy sacrament by the priests in the churches.” (emphasis supplied)
Thus the Bench concluded at the stage of admission, without any material adduced by any party in that regards, that the practice in question is an essential religious practice.It appears that the Bench took notice of facts which were not pleaded by the petitioner, as if it is taking judicial notice of such facts, to hold that the practice in question is an essential religious practice. The petitioner in the cases did not prefer an appeal against the judgement before the Supreme Court. Thus there is a stark difference in the way the question of essentiality of the practice was dealt with by the same Bench in both the cases.
Interference of Apex Court Necessary
The judgment of the High Court of Kerala upholding constitutionality of the Kerala Animals and Birds Sacrifices Prohibition Act, 1968 is legally flawed on various counts. The Court has not considered whether the practice is an essential practice, in the manner requiredto be done. The Court has not addressed the issue of discrimination. The Court has refused to hear affected persons who approached the Court seeking a hearing in the Public Interest Litigation. The Court has held that a petitioner who argues repugnancy under Article 254(2) of the Constitution has to produce materials, at the stage of admission, to establish that the state statute has not received presidential assent. The Court has failed to probe what was the mischief that the state sought to remedy through the statute since neither killing an animal nor propitiating a deity is treated as a mischief, though killing for propitiating a deity, inside Hindu temple premisesisprohibited.
Harming animals or birdsin the name of religion is an abhorrent practice that should not be permitted in a civilised society. But communal discrimination by the state even in the matter of prohibiting such practices is even more abhorrent. It is learned that a petition has already been filed before the Supreme Court challenging the judgment of the High Court. It is now for the Supreme Court to set things right.
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