Srinagar: The high court on Wednesday issued a notice to the state government on a petition seeking directions to strike down a law banning slaughter of bovine animals and sale of beef in the state.
Admitting the petition filed by a retired Kashmir university professor Afzal Qadri, a division bench of Justices Mohammad Yaqoob Mir and Bansi Lal Bhat directed the state government to reply to the petition within a week.
However, the court made it clear that the petition will not be a hurdle if the state government or the legislature contemplates to scrap or amend the law.
“We respect secularism in our country,” the bench observed when advocate Faisal Qadri, representing the petitioner, referred to a judgment by Supreme Court in support of his arguments.
The 65-year-old professor, a resident of Habak Naseem Bagh Srinagar, pleaded that the sections 298-A to 298-D of the Ranbir Penal Code, which criminalises the slaughter of bovine animals, shall be declared as ultra vires (beyond the scope or in excess of legal power or authority) to the constitution of India as well as to the constitution of Jammu and Kashmir, and accordingly removed from the RPC.
Qadri has submitted that the provisions directly interfere with personal liberty, allows an intrusion into religious as well as private lives of people.
According to 298-A, whosoever voluntarily slaughters cow or any bovine animal, whether domesticated or wild, shall be punished with imprisonment which may extend to 10 years, and shall also be liable to a fine.
As per 298-B, whoever keeps in possession flesh of any slaughtered animal—ox, bull, cow or calf— shall be punished with imprisonment which may extend to one year and shall also be liable to fine which may extend to Rs 500.
The 298-C provides that whoever voluntarily slaughters or kills buffalo, he or she shall be punished with fine which may extend to five times the price of the animal killed or slaughtered as determined by the Court.
The 298-D states that whoever sells or has in his possession any untanned hide or their flesh or brings into or has in his possession the carcass shall be punished with imprisonment of one month or with fine which may extend to Rs 200 or with both.
“The penal provisions of any Code are adopted in a civilized Society to reduce the crimes by unlawful elements and its purpose of adopting such Penal Code is to criminalize all such acts and punish the persons who are found guilty of the same. The purpose and object of any criminal law cannot be achieved by criminalizing any act of the petitioner which has been bestowed upon him by the religion which he professes,” Qadri says.
He said the intention of any person eating beef is never to hurt the sentiments of any particular community.
“The only object and motive behind consumption of the meat of the bovines is to have a right of choice while performing his religious obligations,” he said and emphasized that the provisions, are “arbitrary, unreasonable, and unconstitutional.”
Referring to the Article 25 of the constitution, he said freedom of religion and right to profess it is granted to all the persons including the Citizens of J&K by Indian and Jammu and Kashmir constitutions.
Referring to Islamic Jurisprudence, Qadri said that the practice of animal sacrifice was compulsory on all Muslims.
The contentions raised by Qadri in support of his demand include that the provisions came into force during the time of autocracy in the state (1932) of Jammu and Kashmir.
“With the passage of time, the State of J&K has emerged out of the autocratic rule of the then Maharaja and is now being governed by democratic values and principles as provided under the Constitution of Jammu and Kashmir and the Constitution of India,” he said.
He said that every person has right to chose of what to eat and what not to eat in his private life within the four corners of his residence. “No enactment or provision can be allowed to intrude upon such a right unless and until exercise of such right in a private capacity would be detrimental to the society.”
He said that the Islam makes it obligatory upon him to perform sacrifice of the animals and gives him a choice to sacrifice any such animal according to his financial capacity.
“No legislation or provision can be allowed to intervene with anybody’s freedom to believe in, or to seek to persuade others to believe in, the merits of corporal punishment whether on religious or on secular grounds.”
He said that the provisions have no nexus with the Article 48 of the Constitution of India and therefore, cannot be a basis to criminalize an act of a citizen which otherwise is provided to him by the divine law in the nature of his religious practices and rituals.
The petitioner was represented besides Faisal Qadri by advocates Altaf Ahmad and Shah Faisal.