“Gujarat is
vegetarian,” said Gujarat chief minister Narendra Modi in an interview with
Wall Street Journal. In fact, more than 70 percent people (including Dalits,
Tribals, Muslims, OBC) are non-vegetarian. The Vaghris and Chharas who were
used by Modi in genocide, 2002 are pakka non-vegetarian and Vaghris are retail
sellers of fish. Young generation of Patels, Bania and Brahmins are semi-non-vegetarian.
They eat eggs and omelets.
In an interesting
legal battle Gujarat’s most prominent legal luminary senior advocate Girish
Patel raised concrete issues in a writ petition moved before Gujarat High
Court. In 1993 Gujarat government closed slaughter houses during Paryushan, a festival
of Jains. I was one of the petitioners in the petition which prayed for stay
against indiscriminate closure of slaughter houses. Gujarat High Court gave
stay order. Here is the complete text of the PIL.
Rajesh (Raju) Solanki
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD.
Special Civil Application No. of 1993.
Dist. Ahmedabad City
1.
Rajeshbhai Himatlal Solanki,
Secretary,
Secretary,
Jati Nirmulam Sanklan Samiti,
Vivek Bhuvan, Patni Sheri,
Gheekanta Road, Ahmedabad.
Vivek Bhuvan, Patni Sheri,
Gheekanta Road, Ahmedabad.
& Others ... Petitioners.
V/s.
1.
State of Gujarat,
(Notice through its Secretary,
Urban Development and Urban
Housing Department,
Sachivalaya, Gandhinagar.
Urban Development and Urban
Housing Department,
Sachivalaya, Gandhinagar.
2.
Ahmedabad Municipal Corporation,
through Municipal Commissioner,
Danapith, Ahmedabad.
through Municipal Commissioner,
Danapith, Ahmedabad.
3.
Municipal Corporation, Surat,
through Municipal Commissioner,
through Municipal Commissioner,
Muglisara, Surat. ... Respondents.
In the Matter of Articles
14. 19 (1) (g) and 21 of the
constitution of India.
constitution of India.
AND
In the matter of Art. 226 of
the constitution of India,
the constitution of India,
AND
In the matter of the Bombay
Provincial Municipal Corporation
Act.
Provincial Municipal Corporation
Act.
The Humble Petition of the Petitioners
above named.
above named.
MOST RESPECTFULLY SHEWETH:
1. The petitioners, in this petition, challenge the direction given by the
Government of Gujarat and decision of the respondent Nos. 2 end 3 to close down all municipal
slaughter-houses from 12.9.93 to 19.9.93 on account of the Jain festival 'Paryushan' on the ground that the said actions are
violative of the petitioners right to carry on trade or occupation under Art. 19 (1) (g) subject to reasonable restriction in the interest of general public and right
to life and personal liberty under Art. 21 of the constitution of India.
2. All the petitioners are citizens of India and are entitled to all the Fundamental Rights
guaranteed under the Constitution of India.
guaranteed under the Constitution of India.
3. The Petitioner
NO.1 represents a large number of persons belonging to Scheduled Castes and others who work for a
secular and liberal society from Varnashram and religious discrimination. The petitioner NO.2 is running a hotel which also
supplies non-vegetarian foods to the customers. The petitioner No.3 is
running a shop for the purpose of selling mutton. The petitioner NO.4 is a Dalit organization.
4. The petitioners state that the respondent No.2,
Ahmedabad Municipal Corporation and the respondent No.3, Surat Municipal Corporation
own run and manage slaughter- houses and employ their own staff for the said purpose.
The cattle are brought here by the various traders and businessmen and slaughtered
hero. Thereafter, the mutton is sold to the public. Chapter XIX of the Bombay Provincial
Municipal Corporation Act, 1949 (Herein after referred to as the 'Act')
provides for maintenance and regulation of market and slaughter houses.
Sec.63 of the Act provides for the obligatory
duties of the corporation. They include the construction or acquisition and
maintenance of public markets as slaughter-houses and the regulation of all
markets and slaughter-houses (Item 12) of Sec. 63(1).
Sec.466 provides that "The Commissioner may
make Standing Orders consistent with the provisions of this Act and the rules
and bye-laws in respect of the following matters.
(D)(b) Fixing the days and the hours on and
during which any market, laughter- house or stock-yard may be held or kept open
for use and prohibiting the owner of any private market from keeping it closed without
lawful excuse on such days or during such hours."
5. The petitioners state that in the State of Gujarat
and in the two cities of Ahmedabad and Surat, thousands of people are carrying
on the Thousands of people are also depending upon the various activities
connected with this. Lacs of people of various communities eat non-vegetarian
foods either at home or at hotels.
6. The petitioners state that the Corporation generally
keeps the slaughter-houses closed for some isolated days and the people cannot
have much objection if 'that power is exercised reasonably. For example, Municipal
Commissioner in Ahmedabad made a Standing Order in 1956 fixing 4 days as holidays
on which the municipal slaughter houses shall remain closed. By an amendment to
the Standing Order affected on 17.9.65, 3 more days were added, thus making a total list of 7 days in a year on which the municipal laughter-houses
were to be kept closed. So far as the closing of slaughter- houses on some
isolated days in a year is concerned nobody can have any objection.
However, recently some political parties and
groups took up a case of allegedly illegal slaughter-houses after the brutal
killing of Smt. Gitaben Shah, an active worker of Hinsa Nivaran Organization. If
the illegal slaughter-houses are going on, they should be stopped and the petitioners
cannot have any objection. However, the problem assumed opportunistic political
dimensions, wherein the various political parties, particularly the ruling
Congress party and the B.J.P. are vying with each other to secure popular support
by inciting people against slaughtering of animal even though such slaughtering
is illegal. The Jain community particularly is one of the powerful communities
in Gujarat. As a result of various pressures from some sections of the society,
the Government of Gujarat wrote a letter dated 4.9.93 to the Municipal
Commissioners of Ahmedabad, Surat, Rajkot, Bhavnagar and Jamnagar Municipal
Corporations directing them to close the slaughter-houses from 12.9.93 to 19.9.93
and on 30.9.93 on account of the Jain festival of Paryushan.A true copy of this letter dated 4.9.93 annexed
hereto and marked as Annex. 'A'.
7. The petitioners state that the Standing Committee
of the Ahmedabad Municipal Corporation passed a resolution on 3.9.93 to the effect that the municipal
slaughter-houses shall be closed from 12.9.93 to 19.9.93 subject to the approval
of Municipal Corporation. A true copy of this letter dated 3.9.93 is annexed
hereto and marked as Annex. '8'. Similarly, the Standing Committee of Surat
Municipal Corporation, the respondent NO.3 passed a resolution on 8.9.93 to the
effect that the slaughter-houses shall be closed from 12.9.93 to 19.9.93 and on
30.0.93. A true copy of the said Resolution dated 8.9.93 is annexed hereto and
marked as Annex. 'C'.
8. The petitioners state that as a result of these
resolutions, the municipal slaughter- houses in the city of Ahmedabad and Surat
will remain closed from 12.9.93 to 19.9.93 i.e. for 9 days at a stretch. The
result would be that for total 9 days, all municipal Slaughter-houses will remain
closed. The businesses of the people would be totally stopped for 9 days and
the hotels also would be deprived of the business and the people will not be
able to have non-vegetarian foods for continuous 9 days.
9. Being aggrieved by the said decisions of the
Ahmedabad and Surat Municipal Corporations; the petitioners challenge the same on the following amongst other
grounds.
10. The petitioners submit that the resolution of
the Ahmedabad Municipal Corporation at Annex. B and resolution of Surat Municipal
Corporation at Annex. C and the directions of the Government of Gujarat at Annex.
A are irrational, arbitrary, discriminatory and violative of Art. 14 of the
Constitution of India and impose unreasonable restrictions upon the rights of
the petitioners to carryon business under Art. 19(1)(g) and are also violative
of Art. 21 of the Constitution of India and are malafide and by way of colourable exercise of power and
are illegal, null and void.
11. The petitioners further submit that the decisions
of the two Municipal Corporations to keep the slaughter-houses closed for completely
9 consecutive days completely prohibiting the businesses of the people who are
engaged in this business for 9 consecutive days. By doing so, they impose
exclusively unreasonable restrictions on their right to carry on trade, occupation
etc., under Art. 19(1) (g) of the Constitution of India and such restrictions
are not in the interest of the general public at all. The petitioners submit
that it is only a small section of the people who demands the closure of the
slaughter-houses for 9 consecutive days. On the other hand, the vast majority
of the people do eat non-vegetarian food and the decisions of the Corporations
deprive them of their freedom to eat non-vegetarian food. Moreover, the Jain community
or any other community is entitled to practice and profess their own religion
including 'Ahimsa', but that cannot justify the infliction of their philosophy
or their religion upon the entire community. Even though the philosophy of non-
violence is a laudable philosophy, it is highly controversial in relation to
the question of slaughter of animals and the eating of non- vegetarian foods
are concerned. It is, therefore, submitted that the said resolutions of the Corporations
totally prohibit the carrying on the profession of the people including the
petitioner Nos. 2 and 3 for consecutive 9 days inflicting a heavy loss upon
them. The said restrictions are really prohibition and are not reasonable and
they are certainly not in the interest of general public. The petitioners, therefore,
submit that the resolutions at Annex. 'B' & 'C' and order or the Government at Annex. 'A'
are violative of the Fundamental Right of the petitioner Nos. 2 and 3 and other
similarly situated to carryon trade, occupation etc., under Art. 19(1)(g) of
the Constitution of India and are not saved by the exception of Art. 19(6) of
the Constitution of India.
12. The petitioners further submit that lacs of
people in Gujarat and the petitioners themselves are non-vegetarian. Substantial
numbers of them depend upon mutton for their protien and for nutrition. Large number
of them is habituated to eat non-vegetarian food every day. To eat any foods a
person likes is a part of his personal liberty and unless it is prohibited on
constitutionally permissible grounds, this opportunity cannot be taken away. The
petitioners submit that the resolutions of the two Corporations deprive
thousands of people of their daily non-vegetarian food and deny the exercise of
personal freedom with respect to food to the large number of them without any
fair, just and reasonable procedure and, therefore, are violative of Art. 21 of
the Constitution of India. Moreover, right to life includes right to eat any food
one likes which according to him supports and maintains him. The State has no
right to deprive the people of any such food which is nutritious for the people
and which people consider to be a nutritious. On this ground also, the
resolutions of the two Corporations are violative of Art. 21 of the Constitution of India.
13. The petitioners further submit that the Supreme
Court of India in Municipal Corporation of Ahmedabad vIs. Jan Mohmad
(AIR 1986, S.C. p. 1025) has upheld the validity of the Standing Orders of the
Commissioner of Ahmedabad Municipal Corporation declaring certain days as holidays
for the slaughter-houses. However, the said case is completely different from
the present case because in the said case, some 7 isolated days were declared
as holidays and the Supreme Court recognized to be reasonable restrictions. One
of the main grounds for holding them as reasonable is that declaring of
holidays gives facility to the municipal staff working in the municipal
slaughter-house. In regard to some 4 days, the Court considered that these days
are not only days of festival, but also as days for abstinence from meat and, therefore,
the Supreme Court did not consider those days as ill-chosen holidays. In the
present case, the respondent Corporations have exceeded their powers and
declared 9 consecutive days for closing the slaughter-houses. There is a qualitative difference between
choosing some days as holidays and closing slaughter-houses for 9 consecutive
days. In regard to former, the petitioners cannot have any objection and the people
also do respect the feelings of others, but in the later case, the so-called
restrictions exceed the limits of reasonableness and impose a total prohibition
of slaughter-houses for 9 consecutive days. Such closure cannot be justified as
reasonable restrictions. The petitioners, therefore, submit that the ratio of
the decision of the Supreme Court in the above case is not applicable to the
present which is completely different from that case.
14. The petitioners further submit that under the
Bombay Provincial Municipal Corporation Act, under Sec. 466, it is the Commissioner who makes Standing
Orders for various matters enumerated therein including the matter relating to
slaughter-house. According to the documents available to the petitioners, it is
the Standing Committee of the Municipal Corporation in both the cases which has
passed the resolutions closing the slaughter-houses for 9 days. It is submitted
that these resolutions are ultra vires the Standing Committee and, therefore, are
illegal, null and void because it is the only Municipal Commissioner who can
make Standing Orders regarding the same and not the Standing Committee.
15. The petitioners further submit that the resolutions
by the Standing Committee of the Corporations are exclusively politically
motivated and directed against the particular community alone which is wrongly
identified with the slaughtering of animals and eating non- vegetarian food. The resolutions are
the result of an unreasonable intolerance on the part of the people who control
the Corporations towards the other ways of life followed by different sections
of the society. These resolutions are passed not in the interest of general
public, but for appeasing the particular community only and a particular
ideology. It should be noted here that the country is facing the threat of
extreme religious fundamentalism and particularly of the majority community.
One can understand the actions against illegal slaughter-houses. One can also understand the
implementation of Art. 48 which incorporate one of the Directive Principles of the State Policy, but one cannot condone and justify the extreme intolerance
towards the ideologies, beliefs, practice and ways of life of different
communities and sections of the society. It would mean nothing but imposition 0,1 one's way of life and one's way of
thinking. That is why the Supreme Court of India observed in A.I.R. 1970, S.C. p. 93 as under;-
''The sentiments of a section of the people may
be hurt by permitting slaughter of bulls and bullocks in premises maintained by
a local authority, but a prohibition imposed on the exercise of a Fundamental
Right to carryon an occupation, trade or business will not be regarded as
reasonable if it is imposed not in the interest of the general public, but
merely to respect the susceptibilities and sentiments of a section of the
people whose way of life, belief or thought is not the same as that of the claimant."
16. The petitioners further submit that Sec. 466
confers power upon the Commissioner to make Standing Orders for various matters
enumerated therein. One such power is in relation to "fixing the days and
hours on and during which any market, slaughter-house or stock-yard may be held
or kept open for use." The petitioners submit that the Commissioner while
exercising this power must act within the limits of the Constitution and the
Act. However, if the said section and the clause are not capable of this
interpretation, the petitioners submit that Clause 0(8) of Sec. 467 confers
unbridled and, unrestricted power upon the Municipal. Commissioner without any
guidelines and, therefore, is by way of excessive delegation and violative of
Art. 14 of the Constitition of India. In so far as it also permits the
Municipal Corporation to totally prohibit the slaughering of animals and closing
slaughter-houses for a number of days, it is violative also of Art. 19(1)(g) of the Constitution
of India. The petitioners, further submit that in so far as the said Clause
permits the Municipal Corporation to close down slaughter-house for any number
of days and deprive the people of their right to life and personal liberty in
respect of food, it is unfair, unreasonable and unjust and, therefore,
violative
of Art. 21 of the Constitution of India.
of Art. 21 of the Constitution of India.
17. The petitioners further submit that the Government
by issuing an order dated 4.9.93 directing all the Corporation to close
slaughter- houses from 12.9.93 to 19.9.93 has acted illegally and without
authority of law and violated the Fundamental Rights of the petitioners and others
under Articles 19(1 )(g) and 21 of the constitution of India. The said order of
the Government is absolutely illegal and ultra-vires.
The respondent Corporations have been pressurized
by the said Govt. Order in exercise of their power and have abdicated their
functions under the Act.
18. The petitioners, having no other alternative
efficacious and adequate remedy at law, approach Your Lordships under Art. 226
of the Constitution of India and pray that Your Lordships may be pleased to
issue a writ of certiorari, mandamus or any other appropriate writ, direction
or order –
A. Declaring clause D (b) of Sec.466 of the Act
as ultra vires the Constitution, being violative of Articles 14, 19(1 )(g) and
21 of the Constitution of India;
B. Declaring
the resolutions of the Corporations at Annex. 'B' & 'C' and the order of
the
Government
at Annex. 'A' as irrational, arbitrary, discriminatory and unauthorized and
violative of
Articles 14, 19(1 )(g) and 21 of the Constitution of India, illegal, null and
void;
C. Restraining
the respondents from acting upon the said resolutions and from taking any
action in
pursuance thereof;
D. Directing
the respondents to pay compensation to the petitioners and others similarly situated for
violation of Fundamental Rights under Arts(s) 19(1 )(g) and 21 of the Constitution
of India &
E. Making any other appropriate order.
19. The petitioners state and submit that they
have a very good prime facie case, their fundamental right is violated, the
decisions are ex-facie unconstitutional, the balance of convenience is in their
favour and if the interim relief is granted, no irreparable damage will be done
to the respondents and if interim relief is not granted, the petitioners will
suffer an irreparable damage.
20. The petitioners therefore, prays that during
the pendency and till the final disposal of this petition, Your Lordships may
be pleased to grant interim relief -
1. Directing the respondents to suspend the
resolutions at Annex. 'B' & 'C';
2. Restraining the respondents from
enforcing the said resolutions at Annex. 'B' & 'C' and from
taking any
action in pursuance thereto; and
3. Granting any other appropriate relief.
21. The petitioners have not filed any other
petition either in the Hon'ble Supreme Court or in this Court or in any other
Court in respect of the subject matter of this petition.
22. The petitioners crave leave to amend the Memo
of Petition as and when necessary to do so.
Ahmedabad,
(Girish Patel)
/9/94.
Advocate for the Petitioners.
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