शनिवार, 30 अगस्त 2008


Is it human - Is it legal?
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. awbikk@gmail.com : http://www.theverdictindia.com/opinion.asp

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