Why Delhi’s Ban On Selling Meat During Hindu Festival Is Illegal & Violates India’s Constitution

AREEB UDDIN AHMED & RATNA SINGH
 
08 Apr 2022 12 min read  Share

A recent controversy over a ban by a local mayor on selling meat over nine days during a Hindu religious festival in India’s capital is illegal and violates the Constitution, our research found. Similar attempts made over the last decade in five other states have been struck down by the courts. The ban is, essentially, some argue, a majoritarian writ.

Representational Image (PC: Wikimedia Commons)

Lucknow: A declaration made by the mayor of South Delhi, Mukkesh Suryaan, on 4 April 2022, banning the sale of meat over nine days during the Navratri (or nine nights), a Hindu religious festival when less than 1/3rd are reported to be vegetarian as per the government's National Family Health Survey. 


“We will strictly close all meat shops,” said Suryaan, of India’s ruling Bharatiya Janata Party (BJP). “When meat is not sold, people will not eat it.”  


No official order was passed by the South Delhi Municipal Corporation, only a statement issued by the mayor, referring to “sentiments and feelings of the general public”. 


Delhi’s attempt to stop the sale of meat during a Hindu religious festival is not the first in India, which is 79% Hindu, according to the 2011 Census, the latest data available. Over the past 10 years, similar attempts have been made in varying forms in five states: Uttar Pradesh, Gujarat, Uttarakhand, Maharashtra and Madhya Pradesh


Our analysis found the mayor in Delhi had no power to promulgate such a ban, which denies fundamental rights to citizens; violates fundamental rights to freedom of trade and carry on business; infringes upon rights to equality, life & personal liberty ; goes against many Supreme Court and High Court judgements, and is, essentially, a majoritarian write without the backing of the law.


Justice Govind Mathur, former Chief Justice of Allahabad High Court, told Article 14 that the instructions issued by the South Delhi Municipal Corporation for closure of meat shops “reflects mischief (rather) than administrative exigency”.


The mayor’s letter doesn't disclose any “reasonable or rational cause” to close meat shops, said Justice Mathur. “On the contrary, [the letter] is highly unjust and arbitrary.”


Hygiene, Sentiment, ‘Appalling Sight’, But No Law 


The South Delhi mayor’s 4 April official notice closing meat shops was followed on 6 April by an “appeal” made by the East Delhi Municipal Corporation, also run by the BJP, to shutter meat shops, after which several shut down. Delhi is India’s largest urban agglomeration with 16 million approx people and is run by three  municipal corporations.


East Delhi mayor Shyam Sunder Aggarwal justified his appeal, declaring that “90% of people” did not eat meat during Navratri, a claim that was hotly contested (here and here). Suryaan, too, could not precisely explain why he was ordering a ban.


“Some meat shops dump waste in gutters or beside the road, which the stray dogs feed on,” said Suryaan’s statement. “It is not only unhygienic but also an appalling sight for passersby. Such events can be restricted if the meat shops are closed down during the period of Navratri festival in the area under the jurisdiction of South Delhi.”

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Suryaan’s statement said closing meat shops near temples was “also necessary to maintain the cleanliness in and around temples'”. 


“Keeping in view the sentiments & feelings of the general public necessary directions may be issued to the officers concerned to take necessary action for the closure of meat shops during the nine day period of the Navratri festival extending from 2 April 2022.”


But as Justice Mathur pointed out, those were not the sentiments of all Hindus, let alone those from others religions.


“The Mayor has referred to the non use of meat by Hindus observing fast during Navratri—the reason given is factually wrong,” said Justice Mathur, who pointed out how shaakt (devotees of the Mother Goddess or Shakti, who worship the goddesses Durga and Kali) people had always offered animals as sacrifice to the goddess Kali during Navratri, considering the meat prasad or holy offerings.


“In a big part of north India, meat is an accepted offering to the Devi (goddess Durga). It is well known that they have always offered animals as sacrifice to the divine Devi, and they consider this meat as Ma Kali’s prasad or devotional offering.”


“For those who can’t afford to sacrifice a whole goat, the meat of animals purchased from shops is offered,” said Justice Mathur. That was not possible after the “ban”. In any case, Suryaan had no power and no law under which he could issue such a directive.


Unjust & Arbitrary: Former Chief Justice


The power of the mayor comes from the The Delhi Municipal Corporation Act 1957, which mainly talks about the electoral process, duties and procedures. The mayor can regulate “health” and  “hygiene” but there is no statutory backing to this power, which means there is no law that he can invoke.


“To my knowledge adequate law is in prevalence to close meat shops by maintaining necessary hygiene,” said Justice Mathur. “The corporation,  instead of closing shops, could have taken necessary steps for strict adherence to relevant rules.”


The Delhi Municipal Corporation Act regulates meat shops, and under it only the commissioner of the corporation, a bureaucrat, has the power to shut them down. 


Section 405 of the Act states that “municipal markets and slaughterhouses” managed by the municipal corporation, are controlled by the commissioner, who can shut them after issuing a public notice. 


Section 406 of the Act allows the commissioner to suspend the licence of “private markets” and “slaughterhouses” for a period she thinks fit, subject to the approval of a standing committee and after recording reasons in writing.


The Mayor can only offer “suggestions” to the commissioner and cannot take such decisions unanimously.


Indeed, a South Delhi Municipal Corporation official was quoted as saying in the Hindustan Times that for such an order could be implemented through the municipal commissioner, who could direct the veterinary department, which issues meat shop licences and regulates their operations.


“I have not come across any official directive to close meat shops,” said the official.


“The only reason for a semblance of a legal proceedings, is to give justification to vigilante mobs to forcibly shut down meat shops of weaker sections of the community,” said senior advocate Sanjay Hegde, a Supreme Court lawyer.


Apart from the illegality of the ban, Suryaan’s move also violates a raft of constitutional rights.


How The Meat-Sale Ban Violates Fundamental Rights


The unofficial meat ban—in the wake of which shops were indeed closed by owners unaware of the illegality of the directive or too apprehensive to contest it—violates three principles of the Constitution of India: equality; the freedom to trade; and the right to “decisional autonomy” and free choice.


Article 14 of the Constitution guarantees the right to equality to every citizen of India. It embodies the general principles of equality before the law and prohibits unreasonable classification between persons. The ban on the sale of meat certainly ensures such discrimination.


The two main principles on which Article 14 works are “reasonable classification” and “intelligible differentia”. This means the classification of persons/objects must be founded on intelligible differentia, which means that in the case of a law differentiating between two sets of people or objects, all such differentiation should be easily understood, “logical and lucid” and should not be “artificial or contrived”.


Bans on the sale of meat clearly fail this test. The only group mainly affected by such bans are small-scale meat vendors, whose livelihood depends on the daily sale of meat, which is freely available online or at restaurants.  


Article 19(1)(g) of the Constitution provides for the right to practise any profession or to carry on any occupation, trade or business to all citizens subject to Article 19 (6), which lists the nature of restrictions that can be imposed by the State upon the above right of the citizens.


“This right can be restricted under Article 19 (6) only by law and on such reasonable grounds which are found to be in the interest of the general public,” says the Constitution.


A “golden triangle” protects individuals from any encroachment upon their rights. The Supreme Court in the case of Maneka Gandhi vs Union of India 1978, held that a law depriving a person of “personal liberty” has not only to stand the test of Article 21 (decisional autonomy and free choice) but also Articles 14 and 19.


‘Majoritarian Writ Enforced Without Mandate Of Law’


Senior Advocate Vrinda Grover referred to the meat ban as a “majoritarian writ enforced without any mandate of the law”.


Grover said that the meat ban was “unconstitutional and illegal”, as it violated “distinct sets of fundamental rights”, the three we referred to previously. 


“The majoritarian writ or popular morality cannot substitute constitutional morality, and the ‘sensibilities’ of a section of the population cannot form the basis to decide what is in the interest of the general public,” said Grover.


A similar ban was imposed in Ghaziabad by the Ghaziabad municipal corporation, shutting all meat shops between April 2 to 10 in light of Chaitra Navratri.


However, on 3 April, mayor Asha Sharma of the BJP amended her order to say stores should follow Uttar Pradesh government directives: that meat shops be situated beyond a 50-m radius of religious places; no slaughter of animals should take place inside shops; and curtains/tinted glass should ensure that meat was not visible to the public.


The Constitution not only “disapproves of such bans, but casts a positive duty upon the State to ensure that if any person is harassed or intimidated by majoritarian forces”, then preventive action must be taken to secure the life and property of the person exercising these rights and ensuring “penal law against the perpetrators”.


“The culpable inaction of the police when majoritarian mobs attack businesses and people is an anathema to the Constitutional role assigned to the State and its agencies in such situations,” said Grover.


The Ban Discriminates Between Rich And Poor


The meat-sale ban focuses on a class of citizens, the majority of them traders, businessmen and shopkeepers from marginalised or economically disadvantaged communities.


The notice does not talk about supermarkets, restaurants and online stores where meat, as we said, is available easily. 


If the meat-sale ban is taken to court, the mayor or the municipal corporation will have to prove that such restrictions are “reasonable” and should pass the “doctrine of proportionality”.


In K S Puttaswamy vs Union of India (2017), the Supreme Court held that any restriction placed on a fundamental right must conform to a doctrine of proportionality. This requires that State action must have a legislative mandate; must show that the objective of its law is founded on a “legitimate governmental aim” and must be “proportionate”, meaning such State action must be “necessary”. Such action must have no alternative and less intrusive measures available to achieve the same objective.


If such a ban must still be imposed, then it should apply to everyone selling meat.


There are not only meat shops but many vendors who sell cooked non-vegetarian food within south Delhi. Such a ban would also hinder their basic right to do business. Under section 12 of The Street Vendors (Protection of livelihood and Regulation of street vending) Act, 2014, every street vendor has the right to business in accordance with the terms and conditions mentioned in the certificate of vending.


In December 2021, the Gujarat High Court agreed with a plea filed by 20 street vendors of Ahmedabad who had been prohibited from selling non-vegetarian food on the streets.


“Suddenly because someone in power thinks that this is what they want to do?,” the court asked the Ahmedabad Municipal Corporation. “Tomorrow you will decide what I should eat outside my house? Tomorrow they will tell me that I should not consume sugarcane juice because it might cause diabetes or that coffee is bad for my health."


Courts Have Agreed & Disagreed With Bans


There have been other instances where the Indian judiciary has intervened and discussed Constitutional and legal  issues on bans against the sale of consumption of meat. 


The stand of the judiciary is still not uniform, although in the majority of cases courts have been harsh on such bans.  Here are some instances:


In, Shaikh Zahid Mukhtar vs the State Of Maharashtra 2016, the Bombay High Court struck down certain amendments to the Maharashtra Animal Preservation Act 1976, banning beef slaughter. In doing so, the court made some strong remarks about the “State deciding for the citizens”. The court said that the State could control what a citizen does at home, “which is his own castle, provided he is not doing something which is contrary to law”.


“The State cannot make an intrusion into his home and prevent a citizen from possessing and eating food of his choice,” said the court.


In Hinsa Virodhak Sangh vs Mirzapur Moti Kuresh Jamat 2008, the Supreme Court of India upheld a nine-day ban of slaughter houses during the Jain Paryushan festival. In doing so, Justice M Katju said that “in a multicultural country like India, citizens should not be over sensitive and overly touchy about a short restriction when it is being done out of respect for the sentiments of a particular section of society”.


In 2015, the same judge, while criticising a spate of lynchings over allegations of cow slaughter said: "Cow is just an animal and an animal cannot be anyone's mother. If I like to eat beef, then what's the harm in it  (sic); I too eat and will even continue to eat further.”

On the same issue, other judges of the Supreme Court in 2015 said a meat ban “could not be forced down the throat of anyone”.


“A spirit of tolerance has to be inculcated,” said a bench of Justices T S Thakur and Kurian Joseph, refusing to interfere with an order of the Bombay High court staying a ban announced by the Maharashtra government on the sale of meat in Mumbai for four days during Prayushan.


In July 2021, the Uttarakhand High Court, while hearing two petitions against the ban on slaughterhouses in Haridwar, said: “The problem is not a minority versus a majority. The subject is very simple. What are the fundamental rights of the citizens of India?"


Questioning the constitutionality of a ban on slaughterhouses, the High Court said that a civilisation was judged by the way it treated its minorities. “Tomorrow, you will say nobody should eat meat,” the high court said. “The question is whether a citizen has the right to decide his own diet or whether that will be decided by the state.”


In Mohd. Faruk vs State of Madhya Pradesh and others 1969, the Supreme Court held a municipality's ban on slaughter of bulls to be illegal, observing that a prohibition imposed on the exercise of a fundamental right to carry on an occupation, trade or business would not be regarded as “reasonable”, if it was imposed not in the interest of the general public.


(Areeb Uddin Ahmed is an advocate practising at the Allahabad High Court.  Ratna Singh is an advocate and legal journalist in Uttar Pradesh.)