Editorial by Inderjit Badhwar
Judges must often have to rush in where angels have feared to tread. Especially in dealing with matters of immense social, religious, ethnic, cultural sensitivity. When legislators and administrators, fearing a popular backlash, a violent repercussion or a political recoil back off from making tough decisions or enacting laws that will be politically unpopular, the courts have the obligation to step in to advance society’s movement towards achieving goals which the march of civilization has come to accept as self-evident, universal truths—kindness, fair play, equal rights, the right to liberty and the pursuit of happiness.
These ethical compulsions, our cultural evolution as a species—propelled by religious and spiritual doctrines, revelations, philosophical treatises, reasoned discourse, the voices of peripatetic preachers—mark what is often referred to as the Ascent of Man.
It is an obstacle course in which the impediments —religious sanction, superstition, bigotry, racial rage, violent conquest—are removed, sometimes by the terrible weapons of war, sometimes by non-violent, passive resistance, preachers, movements, the ballot, legislation, the courts. And we move on.
Last fortnight, India took a great step in moving on when Justices Rajiv Sharma and Sureshwar Thakur gaveled a new prohibition: The high court banned the sacrifice of animals in temples, saying they “cannot be permitted to be killed in a barbaric manner to appease Gods.”
The judges decreed: “No person throughout the state shall sacrifice any animal in any place of public religious worship, including all land and buildings near such places of religious worship which are ordinarily connected to religious purposes.”
This massive judicial blow to openly sanctioned and wantonly celebrated spectacles of public cruelty deserves far more than the casual mention it has so far received in the press. The decision—although specifically addressing spectacular public slaughter ceremonies and ritual killings during Hindu religious ceremonies in Himachal Pradesh—is actually a clarion call to the rest of India, where thousands and thousands of animals are subjected to brutish torture, cutting across religions and beliefs.
What is truly courageous and luminous about this nearly 200-page judgment is its unflinching upholding of human and humane values above every counter-argument based on freedom of religion and worship, the right to eat meat, religious personal laws,
ritualistic non-vegetarianism, ancient traditions, scriptural edicts, verses from religious texts and international cases. With the wisdom of A Daniel Come to Judgment, the judges take the arguments of their detractors head-on with scholarly research matching argument for argument, separating fact from fiction, myth and superstition from reality and common sense, and argue their case for moral core values that are essential spiritual beacons to guide a nation and a people into the radiance of knowledge.
Readers of this column would do well to read this judgment (High Court of Himachal Pradesh, CWP No. 9257 of 2011 along with CWP No.4499/2012 and CWP No.5076/2012) in full, not only because of the light it sheds on religion and religious practices, but also because it is a transformative experience. I will quote from it at length.
For starters, the petitioners (People for Animals, led by rights activist Sonali Purewal) relied heavily on the rarely invoked Fundamental Duties of the Constitution – Article 51-A (h) — exhorting citizens of India to “develop the scientific temper, humanism, and the spirit of inquiry and reform,” against Article 25 — the Right to Freedom of Religion and the “right to freely profess, practice and propagate religion.”
But does this “freedom” grant anyone, no matter what his religion, the right to practice licentious, profligate public cruelty? Do animals enjoy human rights? Maybe not in the technical sense of fundamental rights as enshrined in the constitution. But the constitution is a creature of the highest political, ethical and moral values which our founding fathers thought fit to enshrine in the guiding document for the Indian Republic. This ethical value system was articulated by none other than Mahatma Gandhi, who said: “The moral progress and strength of a nation can be judged by the care and compassion it shows towards its animals.”
The petitioners rubbished the wishy-washy stand of the state that animal sacrifice has been a continuous practice since time immemorial and is a deep-rooted cultural trait. There is no justification for its continuation, they said, “because it contravenes the very spirit of the constitution of India and the basic principles of a progressive and civilized society. The issue of vegetarians and non-vegetarians is irrelevant to the present context. The petitioner is not opposed to non-vegetarianism and meat-eating, but the ethos behind sacrificing animals before a deity is embedded in superstition and contravenes the constitutional spirit of a scientific temper.”
They added: “The rituals attached to animal sacrifice reflect only cruelty, superstition, fear and barbarism and have nothing to do with either religion or culture. Practices like Sati, female feticide, child marriage, untouchability, etc., were continuing since generations and were deeply ingrained in the social milieu, but have been almost eradicated with the education and reformation movements as well as judicial intervention.”
Referring to an affidavit filed by an eyewitness, Bhajanand Sharma, the court observed that the ritual is a “cruel and barbaric practice and is far from the spirit of worship and reverence as the deponent has seen many a time goats, sheep and rams suffering in agony and crying out in pain during the performance of a sacrifice. The animals are sacrificed in the presence of other animals. It fills them with fear and dread and becomes a very depressing and painful sight to watch. Many villagers of the area avoid going to the temple premises. At such times, it is full of blood and corpses of sacrificed animals that becomes a very pathetic sight to encounter.”
Other eyewitness descriptions from the case file: “Lying around in pain and suffering after receiving blows on their necks which usually does not kill them in first go. Sometimes, the animal tries to escape in a fatally wounded condition, which is very painful. Goats, sheep and rams are held by four people and then the head is attempted to be cut off by one other person, which is not always successful in the first attempt as there is no check on the sharpness of the weapon/equipment being used for the sacrifice, which may be blunt. At times, inexperienced people try and participate in the ritual killing and it is abominable to see that sometimes it may take up to 15 blows to kill the sacrificial animal that keeps struggling in a brutally injured and bleeding condition.”
The court order
“Accordingly, we allow the writ petition CWP No. 5076/2012 and issue the following mandatory directions, prohibiting/banninganimal/bird sacrifice in the temples and public places as under:“No person throughout the State of Himachal Pradesh shall sacrifice any animal or bird in any place of religious worship,adoration or precincts or any congregation or procession connected with religious worship, on any public street, way or place, whether a thoroughfare or not, to which the public are granted access to or over which they have a right to pass; No person shall officiate or offer to officiate at, or perform or offer to perform, or serve, assist orparticipate, or offer to serve, assist, or participate, in any sacrifice in any place of public religious worship or adoration or its precincts or in any congregation or procession, including all lands, buildings near such places which are ordinarily used for the purposes connected with religious or adoration, or in any congregation or procession
connected with any religious worship in a public street…
“No person shall knowingly allow any sacrifice to be performed at any place which is situated within any place of public religiousworship, or adoration, or is in his possession or under his control; The State Government is directed to publish and circulate pamphlets henceforth to create awareness among the people, to exhibit boards, placards in and around places of worship banning the sacrifice of animals and birds.
“The State Government is further directed to give due publicity about the prohibition and sacrifice in media, both audio and visual, electronic and in all the newspapers; and all the duty holders in the State of Himachal Pradesh are directed to punctually and faithfully comply with the judgment.
“It is made clear that the Deputy Commissioners and Superintendents of Police of all the Districts shall personally be responsible to prevent, prohibit animal/bird sacrifices throughout the State of Himachal Pradesh.
Live and let live.”
There was repeated testimony that animals are beaten up mercilessly and dragged up to mountain slopes to meet their death. The scenic beauty of the religious places is not maintained. According to the witnesses, it takes 25 minutes to kill a buffalo bull. At times, the buffalo runs amuck to save itself. The animals are mercilessly beaten up and chilies are thrown into their eyes.
The court noted the “insensitivity” of the state’s authorities to petitioners’ repeated requests to prevent animal sacrifice under Section 28 of the Prevention of Cruelty to Animals Act of 1960. It noted that “the larger beneficiaries of which are priests and the Mandir Committee, animal breeders and designated butchers.”
Nand Lal, a former practitioner of animal sacrifice, said in an affidavit that the sacrifice practiced is so horrific and cruel that most of the people do not even dare to watch, what to speak of accepting the flesh of the sacrificed animal as prasad. The court noted that “the rope is fastened behind the legs of the goat or sheep as well as to its horns, after which the animal’s body is cruelly stretched way beyond its normal limit and is tied up both at the front as well as at the back. After a person gives blows with a weapon to the animal, (Nand Lal) was horrified to say that many times, because of an inexperienced person giving the blow or because of the bluntness of the weapon, it takes as many as 15-20 blows to kill the sheep or goats in which the animal cries away in pain and the whole premises is covered with blood. Many times, the person sacrificing the animal also drinks the blood, which is a horrific sight and sends shivers down one’s spine about the kind of barbarism that is being practiced under the garb of religion. Animal sacrifice is not a form of worship but is in essence, a social evil that is based on superstition and violence against the helpless that goes against the spirit of Hinduism which preaches the spirit of Ahimsa”.
The Himachal court opined that Articles 25 and 26 of the constitution of India protect religious beliefs, opinions and practices but not superstitions. “A religion has to be seen as a whole and thereafter, it can be seen whether a particular practice is core/central to the religion. It can be a hybrid also. In the instant case, offerings in the temples can be made by offering flowers, fruits, coconut, etc. Accor-ding to us, there are compelling reasons and grounds to prohibit this practice. A democratic polity is requ-ired to be preferred to a system in which each one’s conscience is a law unto itself. The State has also the obligation under constitutional mandate to promote the health, safety and general welfare of the citizens and animals.
“The stand of the State Government in the reply is that this practice is prevalent from time immemorial and the people have a deep-rooted faith and belief in animal sacrifice. The Court has directed the State Government to propose a regulation to arrest this evil. The State Government instead of filing an affidavit giving therein measures required to curb this practice has chosen to file the reply (citing the Vedas, and Upanishadas and Puranas)… Society has advanced. We are in a modern era. The rituals, which may be prevalent in the early period of civilization have lost their relevance and the old rituals are required to be substituted by new rituals which are based on reasoning and scientific temper. Superstitions have no faith in the modern era of reasoning.
“These practices have outlived and have no place in the 21st century. The animal sacrifice of any species, may be a goat or sheep or a buffalo, cannot be, in our considered view, treated as integral/central the-me and essential part of religion. It may be religion’s practice but definitely not an essential and integral part of religion. Hindu Religion, in no manner, would be affected if the animal sacrifice is taken out from it.
“We have to progress… The essentials of any religion are eternal. The non-essentials are relevant for some time. The animal/bird sacrifice cannot be treated as eternal. We should experience religion. We have to stand up against the social evils, with which the society at times is beset with. Social reforms are required to be made… The new Mantra is salvation of the people, by the people. Hindus have to fulfill the Vedantic ideas but by substituting old rituals by new rituals based on reasoning.
“The animals have basic rights and we have to recognize and protect them. The animals and birds bre-athe like us. They are also a creation of God. They have also a right to live in harmony with human beings and nature. No deity and Devta would ever ask for the blood.
“All Devtas and deities are kind-hearted and bless the humanity to prosper and live in harmony with each other. The practice of animal/bird sacrifice is abhorrent and dastardly. The welfare of animals and birds is a part of moral development of humanity. Animals/birds also require suitable environment, diet and protection from pain, sufferings, injury and disease. It is man’s special responsibility towards the animals and birds being fellow creatures. We must respect the animals. They should be protected from the danger of unnecessary stress and strains.”
The creation and the created
In the case of AS Narayana Deekshitulu vs. State of AP and others, reported in (1996) 9 SCC 548, the judges held that the only integral or essential part of the religion is (constitutionally) protected. Non-integral or non-essential part of religion, being secular in character, can be regulated by legislation. The essential or integral part of religion to be ascertained from the doctrine of that religion itself according to its tenets, historical background and change in evolved process.
While performance of religious service is an integral part of religion, priest or archaka performing such service is not so. The judges have further held that religion is not merely an opinion, doctrine or belief. It has outward expression in acts as well. It is not every aspect of religion that has been safeguarded by Articles 25 and 26, nor has the constitution provided that every religious activity cannot be interfered with. Every religion must believe in a conscience and ethical and moral precepts.
“From that perspective, this Court is concerned with the concept of Hindu religion and dharma… Very often, one can discern and sense political and economic motives for maintaining status quo in relation to religious forms masquerading as religious faith and rituals bereft of substantial religious experience. As such, philosophers do not regard this as religion at all. They do not hesitate to say that this is politics or economics masquerading as religion. A very careful distinction, therefore, is required to be drawn between real and unreal religion at any stage in the development and preservation of religion as protected by the constitution.
Within religion, there is an interpretation of reality and unreality, which is a completely different experience. It is the process in which the ideal is made rule. Thus, perfection of religious experience can take place only when free autonomy is afforded to an individual and worship of the infinite is made simpler, direct communion, the cornerstone of human system. Religion is personal to the individual. Greater the law bringing an individual closer to this freedom, the higher is its laudable and idealistic purpose.
Therefore, in order that religion becomes mature internally with the human personality it is essential that mature self must be combined with conscious knowledge. Religious symbols can be contra-distinguished from the
scientific symbols and both are as old as man himself. Through scientific symbols there can be repetition of dogmatism and conviction of ignorance.
It thus follows that to one who is devoted to the pursuit of knowledge, the observance of rituals is of no use since the observance of rituals and the devotion of knowledge cannot co-exist. There is considerable incompatibility between knowledge and rituals inasmuch as their natures are entirely antithetical. It is only he who regards himself as the agent of action that can perform the rituals; but the nature of knowledge is altogether different and it dispels all such ideas. All the wrong ideas beginning with the identification of Self with the physical body etc., are eradicated by knowledge, while they are reinforced by action. Ignorance of Atman is at the root of action, but the knowledge of Atman destroys both. How is it possible for one to perform the prescribed rituals while engaged in the pursuit of knowledge inasmuch as they are incompatible! It is as much impossible as the co-existence of light and darkness. One cannot keep one’s eyes open and closed at the same time. It is equally impossible to combine
knowledge and rituals. Can one who is looking westward look eastward?
“Religion, therefore, be construed in the context of Articles 25 and 26 in its strict and etymological sense. Every religion must believe in a conscience and ethical and moral precepts…. There is nothing which a man can do, whether in the way of wearing clothes or food or drink, which is not considered a religious activity. Every mundane or human activity was not
intended to be protected by the constitution under the guise of religion.
The approach to construe the protection of religion or matters of religion or religious practices guaranteed by Articles 25 and 26 must be viewed with pragmatism since by the very nature of things, it would be extremely difficult, if not impossible, to define the expression religion of matters or religion or religious belief or practice. The religious freedom guaranteed by Articles 25 and 26, therefore, is intended to be a guide to a community-life and ordain every religion to act according to its cultural and social demands to establish an egalitarian social order. Articles 25 and 26, therefore, strike a balance between the rigidity of right to religious belief and faith and their intrinsic restrictions in matters of religion, religious beliefs and religious practices and guaranteed freedom of conscience to commune with his Cosmos, Creator and realize his spiritual self.”
Animal bill of rights
The United Kingdom Farm Animal Welfare Council (FAWC) has expanded five freedoms for animals as under:
Freedom from hunger and thirst—by ready access to fresh water and a diet designed to maintain full health and vigour.
Freedom from discomfort—by the provision of an appropriate
environment including shelter and a comfortable resting area.
Freedom from pain, injury or disease—by prevention or through rapid diagnosis and treatment.
Freedom to express normal behaviour—by the provision of sufficient space, proper facilities and company of the animal’s own kind.
Freedom from fear and distress—by the assurance of conditions that avoid mental suffering.