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Honorable Indian Legislature and Judiciary did their job by enacting
prohibition on slaughter, restriction on transportation and even in upholding
and directing the Government to stop this heinous, most cruel crime. But
scenario is totally different. We all have to wake up, create public movement
and compel the Government machinery to implement the law of land in letter and
spirit and tell them otherwise to face contempt, argues, DR S K MITTAL

Hargij nahi pahunchte Allaha ke pas kurbanio ke gost aur unke khun,

Albata pahunchta hai alllah ke pas tumhara Takana aur prahejgari (Kuran
Soor-e-haz)

EVERY
YEAR Id ul Julha commonly known as Bakari Id is celebrated in whole world. A
festival of joy converts into big killing spree hurting strong feelings of
animal lovers. At least few of us, who witnessed this heinous act, may know how
inhumane it is. I personally, could not find any word to describe it! Under
Provisions of Prevention of Cruelty to Animals Act, 1960 it is illegal even to
exhibit the performance of animals in films where no killing takes place but on
Bakari Id day This can be seen every where in the country. Millions of
speechless animals irrespective of Camel, cow, goat are brutally slaughtered in
name of religion heartening the sentiments of animal lovers and depriving milk
to children.

All religions propagate compassion to speechless animals. Fundamental Duties
Article 51-A of our Constitution decided that It shall be the duty of every
citizen of India (G) to protect and improve the natural environment including
forests, lakes, rivers/wildlife and to have compassion for living creatures and
directed under Directive Principle of State Article 48 that ‘the state shall
endeavor to organise agriculture and animal husbandry on modern and scientific
lines and in particular take steps in preserving and improving the breeds and
prohibiting the slaughter of cows, calves and other milking animals. Though
Article 25 provides freedom of conscience and free profession, practice and
propagation of religion (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, practice and propagate religion)
but clarifies that Nothing in this article shall affect the operation of any
existing law or prevent the State from making any law.

Different
religions were propagating and parasitizing their traditional rituals like
early marriage, immolation of widow with deceased husband (Sati Pratha)
sacrifice on different festivals. But, different Acts were enacted to prohibit
these rituals in public interest. Sharda Act prohibited early marriage and
there is absolute ban on even glorifying Sati as an old tradition of road side
sacrifice and in temples are curbed under different Acts and Rules. All these
Acts and Rules are applicable irrespective of cast and creed. Some are here as under:

Indian
Penal Code 429 puts rigorous punishment on mischief by killing, poisoning,
maiming or rendering useless any elephant, camel, horse, mule, buffalo, bull,
cow, or ox, what so ever may be the value thereof , or any animal of the value
of fifty Rupees or upwards, shall be punished with imprisonment or with fine or
both

Prevention
of Cruelty Act of 1960 was enacted to prevent cruelty to animals and its Rules
regulate transportation of animals, slaughterhouses, establishment of Societies
for Providing Compassion to Animals (SPCA) etc. Under the provisions of
Constitution of India states enacted suitable Act and rules prohibiting
slaughter of animals. Like Maharashtra
government enacted the Maharashtra Animal Preservation Act, 1976 (9 of 1977),
West Bengal Animal Slaughter Control Act, 1950 (22of 1950) , Karnataka
Prevention of Cow Slaughter & Preservation of Cattle Act, 1964. etc.

On
the eve of Bakari Id we find ourselves helpless and watch the gross violation
of Union & State Acts & Rules. Preparation starts many month in advance
and we find “king of desert” Camel near the sea towns like Chennai , Mumbai
Kolkatta and Mangalore. Herds of good healthy cow and other animals can be seen
most cruelly transported from one corner of country to other corner without
respecting legal provisions and sentiments of animal lovers. Apart from gross
violation of law of the land, as a matter of fact it attracts contempt of
Honorable Supreme Court decision by Hon’ble Justice J Majumdar, Justice Kuldeep
Singh and Justice B.L. Hansaria in Civil Appeal No. 6790, etc of 1983 Wst
Bengal State V/s. Ashutosh Lahiri & Others, (civil Appellate Jurisdiction)
AIR 1995 S.C. 464

As
mentioned above, under Directive to State Principle 48, States enacted law to
prohibit Slaughter & West Bengal Animal slaughter Control Act, was enacted
in 1950 & under the provisions of its Section 12 State Government exempted
the slaughter of healthy cows on the occasion of Bakri Idd. The order was
challenged in Calcutta High Court and The Division Bench of Calcutta High Court
issued a mandamus to the applicants calling upon them to forbear from giving
any exemption under Sec. 12 of the Act in respect of slaughter of cows on the
occasion of Bakari Id day therein after. West Bengal Government preferred
appeal for its order restoration (permission for slaughter on Bakari Idd),
which was rejected.

The
Honorable Court decided the issue after discussing different issues like
religious obligation, democracy, old tradition etc and held that there is no
religious obligation. In reference Honorable Court observed the Constitution
Bench decision of this Court in Mohd. Hanif Quareshicase1 at (SCR) page 650of the
report speaking through Das, C.J Hamilton's translation of Hedaya, Book XLIII
at page 592 that it is the duty of every free Mussalman arrived at the age of
maturity, to offer a sacrifice on the I'd Kurban, 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
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.Itis, therefore, obviously not an
essential religious purpose but an optional one.Therefore, held that before the
State can exercise the exemption power under Section 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 sub serving 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 bypass the thrust of the main provisions of the Act.

For
lifting the ban it should be shown that it is essential or necessary for a
Muslim to sacrifice a healthy cow on Bakr I'd 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'd day. But that is not the position. If any optional
religious purpose enabling the Muslim to sacrifice a healthy cow on BakrI'd is
made the subject-matter of an exemption under Section 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 Section 12.

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 Babur 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 Ahmad Shah, it
is said, prohibited cow slaughter.

In
the light of this historical background it was held that total ban on cow
slaughter did not offend Article 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'd day, it cannot be
a valid ground for exemption by the State under Sec. 12 which would in turn
enable slaughtering of such cows on Bakr I'd.

In
this connection it is also necessary to consider Quareshi case1 which was
heavily relied upon by the High Court.

The
total ban on slaughter of cows even on BakrI'd day as imposed by Bihar
Legislature under Bihar Preservation and Improvementof Animals Act, 1955 was
attacked as violation of the 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,
practise and propagate religion, as slaughter of cows on BakrI'd was not an
essential religious practice for Muslims, total ban on cow's slaughter on all
days including BakrI'd day would not be violative of Article 25(1).

Dr S K Mittal, B.Com (Hons) LLM, is
President, Karnataka Goshala Mahasangh, Akhil Karnataka Gauraksha Sangh, Vice Chairman:
SPCA, Mysore and Member: Animal Welfare Board of India2006-07, Member: Kerala
State, Animal Welfare Board(AWB) His
vision is: ‘Helping hands are more holier than speaking lips.


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