PETITIONER: STATE OF W.B. Vs. RESPONDENT: ASHUTOSH LAHIRI DATE OF JUDGMENT16/11/1994 BENCH: MAJMUDAR S.B. (J) BENCH: MAJMUDAR S.B. (J) KULDIP SINGH (J) HANSARIA B.L. (J) CITATION: 1995 AIR 464 1995 SCC (1) 189 JT 1994 (7) 697 1994 SCALE (4)979 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by
MAJMUDAR, J.- All these appeals by special leave arise out
of the judgment of the Division Bench of Calcutta High Court
in Civil Rule No. 709 (W) of 1971 decided on 20-8-1982. The
appellants in these appeals are the State of West Bengal and
the other contesting respondents who were before the High
Court. 27 respondents herein had filed the writ petition
before the Calcutta High Court, challenging the validity of
exemption of slaughter of scheduled animal, namely, cows,
from the operation of the West Bengal Animal Slaughter
Control Act, 1950 (hereinafter referred to as the ‘Act’) on
BakrI’d day. The writ petitioners had obtained leave under
Order 1, Rule 8 of the Code of Civil Procedure and joined
Respondents 7 to 21 representing the Muslim community. The
writ petitioners contended before the High Court that the
State of West Bengal Respondent 1 before the High Court had
wrongly invoked Section 12 of the Act when it exempted from
the operation of the Act, the slaughter of healthy cows on
the occasion of BakrI’d on the ground that such exemption
was required to be given for the religious purpose of Muslim
community. The Division Bench of the Calcutta High Court
after hearing the contesting parties took the view that such
slaughter of cows by members of Muslim community on BakrI’d
day was not a requirement of Muslim religion and, therefore,
such exemption was outside the scope of Section 12 of the
Act. Consequently, the impugned
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order was dehors the statute. In that view the Division
Bench allowed the petition and issued a mandamus to the
appellants, State of West Bengal Respondent 1 and its
delegate officers Respondents 2 to 16 in the writ petition
calling upon them to forbear from giving any exemption under
Section 12 of the Act in respect of slaughter of cows on the
occasion of BakrI’d day thereinafter. The writ petitioner’s
oral application for leave under Article 133 of the
Constitution was refused as according to the Division Bench
it had followed the Constitution Bench decision of this
Court in Mohd. Hanif Quareshi v. State of Bihar1, in coming
to the said conclusion.
2.As noted earlier the State of West Bengal as well as other
contesting respondents of Muslim community have preferred
these appeals by way of special leave to appeal from the
aforesaid judgment of the Division Bench of the Calcutta
High Court.
3.As all these appeals involve common questions of facts and
law, learned counsel for contesting parties addressed common
arguments in all these appeals. Consequently, we are
disposing of these appeals by this common judgment.
4.Learned counsel for the appellants in these appeals
vehemently contended that the view of the High Court is
erroneous and does not correctly interpret Section 12 of the
Act. It must be held that such exemption can be granted for
fulfilling any religious purpose and such purpose may not be
an obligatory purpose. That even if it is open to a Muslim
to offer sacrifice of a goat or a camel or a cow and when
such a sacrifice should be of a healthy animal then it was
perfectly open to the State to grant exemption from the
operation of the Act so far as slaughtering of a healthy cow
on BakrI’d day was concerned. It was also contended that
the High Court had misread the judgment in Quareshi case1
as this case had interpreted Article 25 of the Constitution
of India and in that light it was held that slaughter of
cows could not be considered to be a part of essential
religious requirement. So far as Section 12 of the Act is
concerned it does not talk of an essential religious purpose
but talks of any religious purpose which may include even an
optional purpose. Mr Tarkunde, learned Senior Counsel,
appearing for one of the appellants vehemently contended
that for operation of Section 12 it is not necessary that
the religious purpose must be a mandatory purpose but would
cover even an optional purpose as contemplated by the Muslim
religion, like slaughter of healthy cow on BakrI’d. Hence
such a purpose would be covered by the sweep of Section 12
of the Act.
5.On the other hand learned counsel for the original writ
petitioners, respondents in these appeals, contended that
the Act is meant for controlling the slaughter of animals
including the cows and buffaloes and this is with the object
of increasing the supply of milk and avoiding the wastage of
animal power necessary for improvement of agriculture.
Under Section 4 of the Act only animals fit for slaughtering
can be slaughtered. For that a certificate is
1 AIR 1958 SC 731 : 1959 SCR 629
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required to be issued by the authorities concerned. But so
far as healthy animals like cows are concerned there is a
complete ban on slaughtering them. Section 12 seeks to lift
the ban in connection with such animals only on the
fulfilment of the condition precedent, namely, such lifting
of the ban being necessary for any religious, medicinal or
research purpose. As this is an exception to the general
protection against slaughtering of healthy animals as
envisaged by the Act, such exemption or exception should be
strictly construed and cannot be lightly granted or lightly
resorted to for any optional religious purpose which may not
be absolutely necessary. In this connection it was
submitted by learned counsel for the respondents that as per
the appellants, in order to earn religious merit a Muslim
can offer sacrifice of a goat or alternatively of a healthy
cow if 7 Muslims together decided to do so and spend for it
or even a camel can be sacrificed by them on BakrI’d.
Therefore, it is not essential for Muslims to earn religious
merit by insisting on sacrificing only healthy cows on
BakrI’d. Consequently, the State will not have any
Jurisdiction or power to invoke Section 12 for fulfilling
such optional religious practice of Muslim community. It
was further contended that the Constitution Bench judgment
in Quareshi case1 has clearly ruled that slaughter of cow on
BakrI’d day cannot be considered to be a part of essential
religious practice and that is the reason why protection of
Article 25 is not available for enabling slaughtering of
cows on BakrI’d day. If that is so, on that very basis the
State’s action under Section 12 of the Act has to be judged
otherwise what is held to be non-essential religious
requirement by the Constitution Bench of this Court, would
be treated as essential religious requirement for the
purpose of Section 12 of the Act. That would run counter to
the very ratio of the decision of the Constitution Bench of
this Court. Therefore, according to the learned counsel for
the respondent writ petitioners, the Division Bench of the
High Court was perfectly justified in following the decision
of the Constitution Bench of this Court in Quareshi case1.
6.We have given our anxious consideration to the rival
contentions. In our view the decision rendered by the
Division Bench of Calcutta High Court under appeal is
unexceptionable and calls for no interference. We must keep
in view the scheme of the Act for deciding the question in
controversy.
7.As the preamble of the Act shows it was enacted to control
the slaughter of certain animals as it was expedient to do
so with a view to increase the supply of milk and to avoid
the wastage of animal power necessary for improvement of
agriculture. Section 2 lays down that the Act applies to
animals specified in the schedule. The schedule to the Act
covers bulls, bullocks, cows, calves, male and female
buffaloes, buffalo calves and castrated buffaloes. Section
4 of the Act deals with prohibition of slaughtering of
animals without certificate from authorities concerned.
Section 4(1) provides that notwithstanding anything in any
other law for the time being in force or in any usage to the
contrary, no person shall slaughter any animal unless he has
obtained in respect thereof a certificate under subsection
(2) or sub-section (3) that the animal is fit for slaughter.
As per sub-
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section (2) a certificate is required to be issued by the
authorities concerned that the animal is over 14 years of
age and is unfit for work or breeding or that the animal has
become permanently incapacitated from work or breeding due
to age, injury, deformity or any incurable disease. Sub-
section (3) deals with a case where there is a difference of
opinion between the authorities concerned from which
initially a certificate is to be obtained. As per Section 5
even if there is a certificate enabling a person to get the
animal concerned slaughtered he cannot slaughter it in any
place other than the place prescribed in that behalf. As
per Section 7 whoever contravenes the provision of the Act
shall be punishable with imprisonment for a term which may
extend to six months or with fine which may extend to one
thousand rupees or with both. Section 8 makes the offences
cognizable under the Act. Section 9 prescribes punishment
for abetment of offences or even attempts to commit any such
offence under the Act.
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 Section 4 of the Act. In other words there is
total ban against slaughtering of healthy cows and other
animals mentioned in the schedule under Section 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 Section 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 Section 4(1) is
concerned, if that ban is to be lifted even for a day, it
has 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 case1 at (SCR) page 650 of the report
speaking through Das, C.J. referred to the observations in
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 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’d, 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
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covered by the term “any religious purpose” as employed by
Section 12 and should not be an essential religious purpose.
We cannot accept this view for the simple reason that
Section 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’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. 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 Paper Ltd.2 and Novopan India Ltd. v. C.C.E. &
Customs3. 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. We must,
therefore, hold 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
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 bypass 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 validly granted
under Section 12. 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 Improvement of Animals Act, 1955 was
attacked as violative 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). As we have
noted earlier the Constitution Bench speaking through Das
C.J., held that it was optional for the Muslims to sacrifice
a cow on behalf of seven persons on BakrI’d 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
2 (1990) 4 SCC 256: 1990 SCC (Tax) 422: JT (1991) 1 SC 151
3 1994 Supp (3) SCC 606: JT (1994) 6 SC 80
196
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.
9.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 Section 12
which would in turn enable slaughtering of such cows on
BakrI’d. The contention of learned counsel for the
appellants that Article 25(1) of the Constitution deals with
essential religious practices while Section 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, Section 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 Section 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 Section 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 Section 12 for such a religious purpose. We,
therefore, entirely concur with the view of the High Court
that 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.
10.We may also mention one submission of Mr Tarkunde that
India is a secular democratic country and, therefore, the
State has to respect the wishes of minority. In the appeals
at hand we are concerned with the short question whether in
the light of clear wording of Section 12, the State can
exempt from the operation of the Act slaughtering of healthy
cows on BakrI’d. For deciding this, ours being a secular
country would not be relevant. Mr Tarkunde next submitted
that as per Gujarat Rules slaughtering of cows on BakrI’d is
considered a bona fide religious purpose. Even this aspect
is not relevant for deciding the parameters of Section 12 of
the West Bengal Act, even if that be the position in Gujarat
presently, which is not so according to the learned counsel
for the respondents.
11.We may also deal with the effort made by the learned
counsel for the appellants to distinguish Quareshi case1 on
the ground that for interpreting
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the term ‘religious’ under Articles 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 Rajasthan4 and Durgah Committee v. Syed Hussain
Ali5. These decisions are of no avail to the appellants as
therein while dealing with the question of validity of
certain enactments, scope of Articles 25 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 case1, which we have noted in detail. The effort
made by teamed counsel for the appellants to get any and
every religious practice covered by Section 12 also is of no
avail for the simple reason 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
bypass the main thrust of Section 4. For such an exercise
non-essential religious practices cannot be made the basis.
Reliance placed on the decision of this Court in Hazarat
Pirmahomed Shah Saheb Roza Committee v. C.LT6 also is of no
assistance as the same refers to Section 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’d is for
a religious purpose, so long as it is not shown to be an
essential religious purpose as discussed by us earlier,
Section 12 of the Act cannot be pressed in service for
buttressing such a non-essential religious purpose.
12.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
4 (1964) 1 SCR 561 AIR 1963 SC 1638
5 (1962) 1 SCR 383 AIR 1961 SC 1402
6 (1967) 63 ITR 490 (SC)
198
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.
13.In the result, we confirm the decision of the High Court
and dismiss these appeals. Interim reliefs granted earlier
during the pendency of the appeals shall stand vacated. In
the facts and circumstances of the case, there will be no
order as to costs.
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