THE DICHOTOMY OF ANIMAL SACRIFICE: RELIGIOUS OR INHUMANE?

I. Introduction

The practice of sacrificing animals for propitiation of deity is not a recent phenomenon but has been observed by various religions in our country since ancient times. However, with the growing understanding of Animal Rights in the present constitutional era, the question “whether the State can allow killing of animals in the name of religion” and “whether such practices can be protected under the fundamental right to Freedom of Religion” has gained prominence in the recent times.

II. Legislations Dealing With Animal Sacrifice

Under Entry 17 of the Concurrent List, of the Indian Constitution, the Parliament has enacted the Prevention of Cruelty to Animals Act, 1960 in order to prevent the infliction of unnecessary pain and suffering to animals. The Act does not prohibit killing per se but prohibits “killing of animal in an unnecessarily cruel manner”.[i] Moreover, section 28 of the Act provides immunity to killing of animals for religious purpose.[ii] In contrast, various state legislations prohibiting animal sacrifice has been enacted by different state legislatures such as Kerala Animals and Birds Sacrifices Prohibition Act, 1968, Jharkhand Bovine Animal Prohibition of Slaughter Act, 2005, etc, which negates the provisions of the former. Thus, the question which strikes one’s mind is: which will prevail? As per article 254, the central legislation will prevail, in case of inconsistency between the laws made by Parliament and laws made by the State legislatures. Thus, section 28 of the 1960 Act will prevail, which legalises killing of animals for religious purposes.

III. Does Section 28 Of The Prevention of Cruelty Act, 1960 Protect The Practice Of Animal Sacrifice?

The Kerala High Court, in a recent judgment, observed that, "No material on record substantiates which community under the Hindu or other religion requires killing an animal, for propitiating, if not personal consumption, in the manner required in the religion. The expression used in Section 28 of the Central legislation is killing and not sacrifice and, therefore, the said provision is intended to protect the manner of killing by a particular community, but not for any religious purpose,"[iii] This is in contrast to the observation of Tripura High Court which recognized killing under section 28 to be for religious purpose and observed that, “if an animal is killed in a manner required by the religion of any community, then such killing could not be construed to be an offence. It only exempts from culpability of the offence.”[iv]

Moreover, section 28 of the act provides that, “Nothing contained in this Act shall render it an offence to kill any animal in a manner required by the religion of any community.” The point to be noted here is that the 1960 Act only criminalizes the manner of killing of animals and does not criminalize killing per se and the phrase “in a manner required by religion of any community” provides freedom to kill the animal in manner required by the religion even if it be cruel. The section, being an exception to the Act, prescribes situations in which cruelty to animals can be justified. Thus, one can conclude that the 1960 Act nowhere bans animal sacrifice and instead allows animal sacrifice in any manner prescribed by their religion. But keeping in mind the fact that animals have right to life under Article 21[v] and in order to ensure the object of the Act, certain rules should be framed by the Central Government in order to ensure that the practice is carried out in a humane manner, just like the Prevention of Cruelty to Animals (Slaughter Houses) Rules, 2001.

IV. Is The Practice Of Sacrifice Of Animals An Essential Religious Practice Under Article 25 Of The Indian Constitution?

For the practice of animal sacrifice to be protected under the shield of articles of faith, it needs to get protection as “essential religious practice” under article 25 of the Indian Constitution. In order to differentiate between what constitutes matters of religion and what not, the “essential religious practice” doctrine was evolved by the Apex Court in the Shirur Mutt[vi] case. According to the Court, “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.”[vii] The phrase “essential religious practice” was defined as “those practices that are fundamental to follow a religious belief such that the nature of the religion will change without that practice.”[viii] The present article tries to determine the essentiality of animal sacrifice in Hinduism and Islamic context.

i) Hinduism

For a practice to be religious under Hinduism, it needs to have basis in the Hindu religious scriptures. For instance, in the verse 10.86.14 of Rig Veda, Indra says, “They cook for me 15 plus 20 oxen” and verse 8.43.11 provides that the ox and the barren cow are meals for Agni. Hence, these verses have been interpreted to mean that these animals can be offered in yajnas. However, certain sections of Hindu people following the path of ahimsa and non-violence forbids the practice of animal sacrifice. In such a situation, the Apex Court in Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan[ix] observed that “the application of the formula that the community decides which practice is an integral part of its religion (is difficult) because the community may speak with more than one voice and the formula would, therefore, break down,...the finding of the Court will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion.” The Chandogya Upanishad, which imbibes the principles of ahimsa and non-violence, provides in its concluding paragraph “Anyatra tirthebhyah”. It means the practice of ahimsa is subject to Vedic rites, thus, conferring Vedas with superior authority.

ii) Islam

For a practice to be religious under Islam, it needs to have basis in the Quran, the sacred text of Islam.[x] The verse 22:36 of the Quran provides for animal sacrifice in the following manner: “The animal offerings are among the rites decreed by God for your own good. You shall mention God’s name on them while they are standing in line. Once they are offered for sacrifice, you shall eat therefrom and feed the poor and the needy. This is why we subdued them for you, that you may show your appreciation.” Thus, it is evident that the Quran permits animal sacrifice and thus, it forms an “essential religious practice” under Islam.

However, one needs to keep the fact in mind that the right to religious freedom is subject to public order, morality, health and other provisions of Part III of the Constitution. Thus, for the practice to be constitutionally recognised, it needs to fulfil these criteria as well. The main problem with legislations prohibiting animal sacrifice is that since such legislations criminalizes animal sacrifices meant for appeasing the deity and excludes all such sacrifices carried out for other purposes, such as personal consumption, one can conclude that such legislations criminalizes the intent behind the animal sacrifice and not animal sacrifice per se. Hence, they are explicitly violative of the equality clause and highlight the intention of the legislature to criminalize the religious beliefs of people instead of ensuring protection of animals as a whole in all circumstances.

V. Conclusion

The frequent interference by the judiciary in religious matters in the recent times has led to questioning of the authority of the courts in determining and adjudicating on questions of religion, faiths and beliefs. In fact, this is the reason that Apex Court declined to interfere with religious practices of animal sacrifices, citing its inability to stop such centuries-old practices and observed that, “There are many communities in villages which feel that animal sacrifice ritual brings them rain. If they do not do it, then there might be no rain. That is why the legislature while framing Prevention of Cruelty to Animals Act, 1960 has provided for the exception (for animal sacrifices carried out for religious purposes).”[xi]

Thus, after an all-embracing analysis one can conclude that the practice of animal sacrifice forms an essential religious practice under Article 25 and the same is protected under section 28 of the 1960 Act. However, the need of the hour is that instead of providing such a blank immunity under section 28, the Central Government should frame certain rules in order to carry out the practice in a humane manner.

[Keywords]: Animal sacrifice, cruelty, immunity, essential religious practice, Vedas, Quran.

[Profile of the author]: Shubhangi Komal is a 5th year Law student in National University of Study and Research in Law, Ranchi and holds keen interest in constitutional, criminal, environmental, labour and human rights laws.

[FAQs]: 1. Name the first national animal welfare law

Ans. The Prevention of Cruelty to Animals Act, 1960

1. Name the Board established under the 1960 Act?

Ans. Animal Welfare Board of India

[i] The Prevention of Cruelty to Animals Act, §11 (1960).

[ii] Id., §28.

[iii] Kerala HC Upholds Law Prohibiting Animal Sacrifice in Temples, Business World (June 20, 2020), http://www.businessworld.in/article/Kerala-HC-upholds-law-prohibiting-animal-sacrifice-in-temples/20-06-2020-289426/

[iv] Subhas Bhattacharjee v. The State of Tripura & Ors.,

[v] Animal Welfare Board of India v. A Nagaraj and Ors., (2014) 7 SCC 547

[vi] The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt, (1954) SCR 1005.

[vii] Id.

[viii] Commissioner of Police v. Acharya Jagdishwaranda Avadhuta, 2004 (12) SCC 770.

[ix] Tilkayat Shri Govindlalji Maharajv. State of Rajasthan, (1964) 1 SCR 561.

[x] Mohammad Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945.

[xi] Dhananjay Mahapatra, Can’t interfere in animal sacrifice tradition: Supreme Court, The Times of India (Sep 28, 2015), https://timesofindia.indiatimes.com/india/Cant-interfere-in-animal-sacrifice-tradition-Supreme-Court/articleshow/49144192.cms