Tuesday, September 15, 2015

SHALAKA PATIL - Be Afraid, Very Afraid of the Government’s Dietary Curfews

On a clear indication from the Bombay High Court that it was not too pleased with the idea of a meat ban, the Brihanmumabi Municipal Council suo motu agreed to withdraw its notification which had banned meat slaughter in Mumbai in public slaughter houses on September 13 and 18. This is recorded in the Bombay High Court’s order of September 11. The ban by way of the state government’s notification for September 17 has also been lifted by way of the High Court’s order on Monday in a writ petition filed by the Bombay Mutton Dealers Association against the state of Maharashtra, the BMC and others.

Thanks to the court, on Sunday I could enjoy chicken curry, from fresh chicken we purchased from our neighbourhood butcher earlier that day. This is how pervasive the impact of a law that impinges on fundamental freedoms can be. In a series of cryptic words typed up on a sheet of paper with the force of a “municipal corporation notification”, all of a sudden my lunch menu was imposed upon and I had no say in the matter. Which is why the insidious ban over meat slaughter imposed in Mumbai by way of two municipal notifications and a third of the state government should have us afraid, very afraid.

For a law to withstand constitutional scrutiny, it has to have a rational basis, it ought not to unreasonably discriminate against a particular class of people and it ought not to violate any fundamental rights. These government notifications fail to meet these constitutional tests on all counts and above all, if upheld will place an intractable burden over what we have thus far taken for granted and held dear – our every day dietary freedoms. But all of this is stating the obvious. A government imposed dietary curfew hinged (ostensibly) to the notion of respecting the religious sentiments of a particular religious community, is extremely problematic.

On the face of it, the justification of the municipal and the state government seems innocuous; the ban is imposed for a limited period of time, and out of respect for the religious sentiment of non-violence during a time that the Jain community observes Paryushan. Some may argue it does not harm anyone per se and, given its restricted timeline, it ought not to interfere with the livelihood of slaughter houses – thereby placing a constitutionally permissible reasonable restriction [Article 19 (6) of the Indian Constitution] on freedom of trade [Article 19 (1) (g)]. But the very justifications that attempt to uphold this law are its unravelling. It is not the business of the state or municipality to pass legislation (delegated or otherwise) on the basis of a religious agenda (or some would say ‘sentiment’) regardless of whether the agenda is on the basis of a minority community’s religious beliefs.

Discrimination is hard-coded
No mention is made of the fact that this agenda of vegetarianism falls well in line with the majority’s Hindu religious beliefs. No mention is made of the fact that a majority of those that run slaughter houses in Mumbai are from one particular community – another religious minority, the livelihood of which is directly impacted by such hasty, one-dimensional decision making. One shudders to think what would have been the case had Christians or Muslims requested that the entire city/state be asked to observe just 2 days of fasting during the holy period of Lent or Ramzan.

In not admitting to these inherent discriminations, the dishonesty of the law becomes apparent. Such laws have the absolute opposite effect of what they set out to achieve. Instead of harmony, they create a sense of disenfranchisement, resentment and feelings of being cheated by the elected powers that be. One is reminded of early justifications of the whites to segregation with the agenda of “separate but equal” – meaning thereby that blacks and whites would be treated equally but would have to attend different schools, given their “inherent” racial differences. On the face of it, such justifications are couched in the language of rationality but their real purpose is always to discriminate against a minority in subtle ways.

In a different context, the present meat ban – by ostensibly respecting the sentiments of one community and denying the rights of another – does just that. In doing so, the government is stopping short of saying – we are blind to the fact that the livelihood of a class of people is impacted unreasonably, we are blind to the fact that we are choosing to respect one particular community to the exclusion of all others, we are blind to the fact that we are interfering with thee private right of (perhaps) a majority of citizens to choose what they eat, and that the basis of our law has no rational relation to the goal of tolerance that it seeks.

During the Bombay High Court hearing, the court had even suggested a practical approach and a middle path by stating that the logic of paryushan was that while conducting their religious processions on the given days (when the ban was to be imposed), the Jain community did not want to see butcher shops and dead animals since their religion is based on non-violence. The court had then suggested that perhaps instead of a blanket ban, meat shops on the particular roads where the processions were being conducted could be shut for a limited time. While this seems like a balanced approach, in summarily passing its notifications the government and BMC had never given these options a thought.

Slippery legal terrain
What is perhaps more surprising is that this law is not new. The BMC relied upon two of its own notifications of 1964 and 1994 to formulate its later notification of 2014. There is a similar state government notification of 2004. The BMC has the power to regulate the operation and maintenance of municipal run slaughter houses on the basis of the Mumbai Municipal Corporation Act 1888. Section 406 gives the commissioner the power (with the approval of the standing committee) to make regulations or bylaws for (among other things) fixing days and hours during which any market or slaughter house may be kept open for use. It appears that till date no such regulations have been brought into force. The power to pass notifications in the absence of formulating regulations therefore appears suspect. In any event, as explained above, the notification can act as a restriction to a fundamental freedom of trade only if the authorities can justify that it is reasonable – which in the present case appears impossible.

Ironically, the Supreme Court, in a 2008 decision (Hinsa Virodhak Sangh v. Mirzapur Jamat & Ors.) – pertaining to a notification passed by the Ahmedabad Municipal Corporation banning the culling of meat during 9 days of the Jain paryushan period – upheld the notification. The Gujarat High Court had held the notification unconstitutional and in doing so had relied upon a previous 1970 decision of the Supreme Court in Mohd Faruk v. State of Madhya Pradesh. In the Mohd Faruk decision, the Supreme Court had declared as unconstitutional a notification of the Madhya Pradesh Municipal Corporation banning the slaughter of bulls and bullocks, as impinging upon the right to livelihood. In the Hinsa Virodhak decision of 2008, a division bench of Justices Sema and Katju inter alia relied on a particular paragraph of a 2005 Supreme Court 7-judge bench decision in State of Gujarat v. Mirzapur Jamat and Ors (which makes a reference to the Mohd Faruk decision) on the dictionary meaning of ‘compassion’ to interpret that this decision impliedly overruled the ratio of the Mohd Faruk decision. The Hinsa Virodhak decision also relies upon historical references to Akbar and his abstinence and tolerance for all religions to justify the ban while stating (1) a ban for a short duration could be treated as a reasonable restriction to Article 19(1) (g) and (2) as a pluralistic society India ought to respect the sentiment of various communities.

In emphasising the multicultural diversity of India, the judgment has this curious passage:
“It must be remembered that India is a multi-cultural pluralistic society with tremendous diversity. There are a large number of religions, castes, languages, ethnic groups, cultures, etc. in our country. Somebody is tall, somebody is short, somebody is fair, somebody is brown, somebody is dark in complexion, someone has Caucasian features, someone has Mongoloid features, someone has Negroid features, etc. We may compare our country with China which is larger in population and size than India. China has 1.3 billion people while our population is 1.1 billion. Also, China has more than twice our land area. However, there is broad homogeneity in China. All Chinese have Mongoloid features; they have a common written script (Mandarin Chinese) and 96% of them belong to one ethnic group called the Han Chinese.”

As the saying goes, the Supreme Court is not final because it is right, it is right because it is final.

A decision such as the present meat ban opens up a Pandora’s box. Some are demanding a similar ban for 9 days during Navratri. The state can draw lines in any way it wishes. When a precedent of this nature is allowed to be set, before we know it, more and more of those freedoms that we do not even give a second thought to will be under threat. And this has a very real impact on India as a democracy. That is why it is imperative that we set the record straight right now – before a minor inconvenience turns into invasive lifestyle choices made by the state on behalf of the people.