In a recent observation of the Uttarakhand High Court, the bench of Chief Justice R S Chauhan and justice Alok Kumar said, “The issue is not minority versus majority. The issue is very simple. What are the fundamental rights of the citizens of India?”. In the present case, the petitioners were against a ban on slaughterhouses in Haridwar and cancelled no objection certificates issued to slaughterhouses.
The observation of High Court seemed to have moved ahead from the observations one of which was of the Chhattisgarh HC wherein the court prohibited sell of eggs in public places as it hurts the sentiments of vegetarian which suggest that supreme court pass laws as per the wishes of the majority. It is to be noticed that this role of the judiciary was never envisaged by the founding father considering the pluralistic society of India and therefore, it is imperative that the court while refuting issues driven by religious or majority vis-à-vis minority considerations, sends a clear message on fundamental liberties. Fundamental Rights, Provided in Part III, of the Indian Constitution have been part of the Indian Constitution. Indian courts must make every effort to protect their sanctity. The recent constitutionally mature observations by Uttarakhand High Court is a step towards it.
The observations seem in the right direction by observing that petition should not be politicized and must have “seminal constitutional issues”. This observation becomes imperative in the backdrop of its observation that “It’s very glaring data that in Uttarakhand 72.6% of the population is non-vegetarian. In totality, 70% of Indian population is non-vegetarian which busts the myth that the that the majority of the population is vegetarian,” This observation demonstrates the phrase “rule of law” which we use almost by rote, thus, in consonance with the living democratic philosophy and also that the judiciary as an institution is the most reliable bastion of democracy.
Though the present observation was to strike an amicable relationship among different communities, the present article delves into the interlinked topic that is right to choose one’s diet which was considered as one of the aspects of the right to privacy. In addition, since the petition was against the ban on slaughterhouses, the article talks about the constitutional debate to demonstrate that ban on slaughterhouses was always seen from the religious, view of majority should be given preference over the minority, and why minority should yield to view of majority along with court’s stance on a particular topic.
2 RIGHT TO CHOOSE ONE’S DIET?
The Bombay high court has seen it from the aspect of personal liberty in its beef ban verdict which was for the first time when the court deviated from its earlier stance of seeing it from the angle of right to livelihood. In this case, while striking down section 5 (d) of the Maharashtra Animal Preservation (Amendment) Act which prohibited a person from possessing the flesh of cattle slaughtered outside Maharashtra as Maharashtra banned such slaughter within the state, the court opined: “As far as the choice of eating food of the citizens is concerned, the citizens are required to be let alone especially when the food of their choice if not injurious to health. The state cannot make an intrusion into his home and prevent a citizen from possessing and eating food of his choice. This intrusion…is prohibited by the right to privacy which is part of personal liberty guaranteed by Article 21.”
Hence, the answer to the question of whether citizens have the right to drink and eat what they won’t have been answered in the affirmative when the personal liberty aspect was specifically raised by the petitioners where Justice Navaniti Prasad Singh viewed prohibition through the lens of personal liberty and thus deviated from the earlier case laws that have viewed prohibition through the right to livelihood for concluding that sale of alcohol was reasonable restrictions.
He stated: “Similarly, with expanding interpretation of the right to privacy, as contained in Article 21 of the Constitution, a citizen has a right to choose how he lives, so long as he is not a nuisance to the society. State cannot dictate what he will eat and what he will drink”. Interestingly, the court in Hinsa Virodhak Sangh Vs. Mirzapur Moti Kuresh Jamat also found one’s eating to be one’s one’s personal affair and held; “the right to decide as to what to eat and drink within the confines of once house, by an individual citizen, would come within the matter of right of privacy, within Article 21 of the Constitution”.
Indeed, it is a matter of rights and it should be treated in that way. It gets more significant when Supreme Court in its watershed judgment recognized individual privacy as a fundamental right. For this purpose, the court stated: “that the right to choose one’s diet is an aspect of one’s right to privacy which, in turn, is an aspect of one’s right to live life the way he wishes and thereby live a life of dignity”. This suggests that it forms part of Article 21 of the Indian Constitution. This sub silentio gave the right to an individual to eat as per its choice unless it involves cannibalism meaning what it wants to eat so long as what he ate did not violate any law.
There is already multifarious opinion regarding this present topic. However, any topic should also cover the concern of individual autonomy which is the aspect of the right to privacy recognized as a fundamental right under article 21. The Supreme Court in the Case of Gobind’ case also underscored that autonomy is, perhaps, the central concern of any system of limited government. Therefore, to give the right to choose one’s diet to an individual, the expression “personal liberty” in Article 21 should be understood in its widest amplitude which takes in its realm variety of rights that go to constitute the personal liberty of man.
3 JUDICIAL DEVELOPMENTS
In the case of Abdul Hakim Qureshi v. State of Bihar, the Supreme Court rejected the contention of the petitioner invoking the fundamental right to freedom of religion (under Article 25) of Muslims, regarding the constitutionality of cow slaughter ban laws in Bihar. The Supreme Court of India seems to have virtually allowed a total ban on cow slaughter. However, the court in the case of Mohd. Hanif Qureshi v. State of Bihar (1959) held that “A total ban [on cattle slaughter] was not permissible if, under economic conditions, keeping useless bull or bullock be a burden on the society and therefore not in the public interest.” Thus, the court made the distinction between “useful” and “useless” cattle. This has been stated in other cases also namely Hashmatullah v State of Madhya Pradesh & Ors, State of West Bengal v Ashutosh Lahiri.
However, this position did not last long as the court in the Supreme Court in State of Gujarat vs Mirzapur Moti Kureshi Kassab, gave unrestricted power to legislate to state that any enactment banning cow slaughter would be declared valid on economic grounds while upholding the validity of legislation banning cow slaughter in all its dimensions. The same but slightly different position was opted by the court in State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat where the Supreme Court ruled that “it was evident from the combined reading of Articles 48 and 51- A(g) of the [Indian] Constitution that citizens must show compassion to the animal kingdom. The animals have their own fundamental rights. Article 48 specifically lays down that the state shall endeavour to prohibit the slaughter of cows and calves, other milch and draught cattle”.
4 CONSTITUTIONAL DEBATES
At this juncture, it is pertinent to discuss the intention of the founding fathers. It should be noticed that the present topic was debated extensively. Interestingly, it failed to find its place in the one prepared by the drafting committee of the Constituent Assembly or in the draft constitution of B.N. Rau. Members were falling out about how the prohibition of cow slaughter was to be included in the Indian constitution. The disparate views on the question of whether cow slaughter should be part of fundamental rights or to be included in Directive Principles of State Policy was answered in the favour of later.
The speech of leaders who were in support of the prohibition of cow slaughter cloaks their intention by calling it matters of great economic consideration. All the same, their intention invariably was to promote their religious sentiment but could not suggest it due to the social fabric of the constitution. Seth Govind Das supported by the likes of Thakur Das Bhargava, Ram Sahai, Raghu Vira, Shibban Lal Saksena, etc supported the idea of the prohibition of cow slaughter.
While promoting this idea, they even requested to equate it with the prohibition of untouchability by framing it as a “civilisational [problem] from the time of Lord Krishna”, and invoking the “sentiments of thirty crores of the population”. This convoluted reasoning might have not relied on the fact that fundamental rights apply to human beings, not animals.
It is worth noticing that the occurrence of phrases like “sentiments of thirty crores of the population” shows the efforts of imposing majoritarian views which did not become successful. Ultimately, members agreed on the compromised model and as a result, it was placed under Article 48 which falls under the Directive Principle of State Policy which is non-justiciable in nature.
Nonetheless, some members of the Constituent Assembly found such inclusion as “back door” tactics and questioned the Drafting Committee why it is “ashamed of providing for [the prohibition of cow slaughter] frankly and boldly in so many plain words”. To conclude, though the Constituent Assembly might have wanted to, by including Article 48, provide Goldilocks solution which only caused gridlock.
There must remain tolerance and respect for all communities and sects which was also the wisdom of our founding fathers who wanted to frame the Constitution secular in character. This provides that despite tremendous diversity it is because of the Constitution of India which gives equal respect to all communities, ethnic groups, etc. Indian democracy would not deny any citizens or for that matter any particular community the right to live according to their visions of a good life. Therefore, the court instead of taking sides should always promote pluralism and coexistence for serving the democracy in its true sense.
Whether a person wants to be vegetarian or not should be his choice if it does not violate the principles of justice, equity, and good conscience. It has been aptly described; “so far as the state is concerned, it imposes upon the state the obligation to refrain from sitting in judgment over whether one group’s beliefs, values or social practices are offending the sentiments of another community, except where such dispute threatens public order”. This is also necessary for the protection of the edifice of a democratic order because if one would not honor and respect other peoples’ rights as much as one values one’s own then the very foundation of democracy would crumble down.
Though this observation does not mean much in already settled law with the recognition of privacy as a fundamental right, it becomes a matter of an individual’s choice of food. The observation is significant when the court in State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat itself seemed to give it the color of majority vis-à-vis minority; “The interest of a citizen or section of a community, howsoever important, is secondary to the interest of the country or community as a whole”. While supporting the idea of individualism, Justice Chandrachud in K Puttaswamy v Union of India said the right to liberty cannot be subjected to the test of popular acceptance. Thus, the guarantee of constitutional rights should solely does not rest on what is favorable to the majority.