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Judgments of Supreme Court of India and High Courts

Sri Subhas Bhattacharjee vs The State Of Tripura on 27 September, 2019

Page 1 of 72

HIGH COURT OF TRIPURA
_A_G_A_R_T_A_L_A_

Writ Petition(C)(PIL) No.2/2018

Sri Subhas Bhattacharjee, S/o Late Digendra Kumar
Bhattacharjee, resident of Flat No.1B7, Dreamz Exotica, VIP road,
P.O. – Kunjaban, PS – New Capital Complex, Kunjaban, Agartala,
Tripura West, Pin – 799006.
—- Petitioner(s).

Versus

1. The State of Tripura, to be represented by the Chief Secretary,
Government of Tripura, Civil Secretariat, P.O PS – NCC.,
Agartala, West Tripura.
2. The District Magistrate Collector, (Sabait Tripureswari
Temple), Udaipur, Gomati District Tripura, Pin – 799 120.
3. The Chairman, Advisory/Management Committee, Tripureswari
Temple, Gomati District, Udaipur, Tripura Pin – 799120.
4. Sub-Divisional Magistrate, (Member Secretary, Tripureswari
Temple), Gomati District, Udaipur, Tripura, Pin – 799120.
5. Union of India, to be represented by the Secretary, Ministry of
Environment Forest, Government of India, 3rd Floor, Prithivi
wing, Indira Parvayaran Bhawan, Jorbagh Road, New Delhi –
110 003.
—- Respondent(s).

_B_E_F_O_R_E_
HON’BLE THE CHIEF JUSTICE MR. SANJAY KAROL
HON’BLE MR. JUSTICE ARINDAM LODH
For the petitioner(s) : Mr. Subhas Bhattacharjee, Advocate.
For the respondent(s) : Mr. A K Bhowmik, Advocate General,
Mr. Debalay Bhattacharya, Govt. Adv.,
Mr. Karnajit Dey, Addl. Govt. Advocte.
Mr. Bidyut Majumder, CGC.
Date of hearing : 19th September, 2019.
Date of judgment : 27th September, 2019.
Whether fit for reporting :
Yes No
√ ×
Page 2 of 72

JUDGMENT

(Sanjay Karol, C.J.)

This Court is called upon to answer the following questions:

―Whether act of the State in offering an animal for
sacrifice in the Temples in Tripura, can be said to be
a secular activity and as to whether prohibiting the
same would infringe the Fundamental right, as
envisaged under Article 25(1) of the Constitution of
India?‖

―Whether the age long practice of 500 years of
sacrificing animals, after stoppage of practice of
human sacrifice, in Tripureswari Devi Temple,
Udaipur, Gomati District, Tripura can be construed as
an essential and integral part of religion, as protected
under Article 25(1) of the Constitution of India?‖

And as a corollary, ―Whether a religious practice
based on a ritual, custom, tenet, tradition, not being
an essential part of religion, can be allowed to
continue notwithstanding the provisions of the
Prevention of Cruelty to Animals Act, 1960
(hereinafter referred to as „the Prevention Act‟) and
Article 21(Part – III) Article 48, 48A and 51A(g)
(Part IVA) of the Constitution of India?‖

PETITIONER’S CONTENTION :

[2] The instant petition filed by a retired judicial officer, in

public interest, highlights the illegal practice of sacrifice of

innocent animals, on the basis of a superstition, before the

Goddess and other Gods Goddesses and in particular, at two

main temples i.e. Mata Tripureswari Devi Temple and Chatur Das

Devata Temple, situate within the State of Tripura.
Page 3 of 72

[3] It is specifically pleaded that at Mata Tripureswari Devi

Temple, under the patronage of district administration,

Government of Tripura, every day one goat is being sacrificed and

on special occasions ―substantial number of animals‖ are being

sacrificed as ―Bali‖(offering to the Goddess) by general public.

Such animals are buffalos, goats, pigeons etc. and orally argued

that at the Chatur Das Devata Temple, there are such offerings by

the State on particular days of the month.

[4] Mata Tripureswari is considered to be one of the

51(fifty one) „Shakti Peethas‟ and animal sacrifice is not an

essential and integral part of Hindu religion. Slaughtering of

animal in the name of ―Bali‖(sacrifice) is a practice in the nature

of social evil and against the Constitutional mandate and spirit.

Such practice has a traumatic affect both on the animal and the

viewer.

[5] The writ petitioner also highlights the events and the

circumstances which lead to the installation of the said idol and

construction of the temple way back in the 15th century, by the

then King Maharaja Dhanyamanikya Bahadur.

[6] In none of the recognized works dealing with the

installation of idol or practices required to be followed in worship

thereof, there is reference of any necessity of carrying out the

ritual of animal sacrifice. Such works being ‗Pithamaala Tantra’,

‗Maha Pitha Nirupan’ and ‗Shiva Charita’; ‗The Shakti Pitham’
Page 4 of 72

authored by Dr. Dinesh Chandra Sakar; ‗Rajmala and the History

of Tripura’ authored by Sri Kailash Chandra Singha; ‗Human

Sacrifices in Tripura’ authored by Rev. James Long, works of Sir

Jadunath Sarkar and ‗Gazinama’ authored by Sheik Manuhar.

[7] Being regarded as one of the holy shrines in Tripura,

this temple attracts lots of visitors of different faith belief for

worshiping the deity. On the occasion of Diwali, worship of the

Goddess is performed by way of slaughtering of huge number of

goats, pigeons, and some buffaloes. This inhuman and barbaric

act of slaughtering of animal, in the name of sacrifice, emerges

with an act of ―ulu-dhwani‖ (howl-like sound/applause-sound) and

extreme beating of ―dhaks‖(drums) and lightening of candles,

smokes of ‗dhups'(incense) which makes the entire environment

that of enhancement, superstitious sensitivity in the minds of

devotees, in particular people having faith in Hinduism, that the

Goddess was being satisfied with such sacrifice (slaughtering) of

animals that takes place within the lounge of (“Nat Mandir”) of

Tripureswari Mandir.

[8] It is further highlighted that such practice based on

superstition was being continued in different parts of India and

Nepal. Now at Gudhima Temple, Nepal, this practice of animal

sacrifice stands totally banned. Also, by a judicial order, the age

old tradition of animal sacrifice in the Temples in Himachal
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Pradesh stands prohibited. It must also be stopped in the State of

Tripura, more so by the State Government.

STATES RESPONSE AND CONTENTIONS :

[9] The state by filing an affidavit in reply has stated that

petition deserves to be dismissed at the threshold, owing to the

fact that the petitioner herein, without approaching the

Government of Tripura and without issuing any notice to the

temple authorities, has filed the instant writ petition under Article

226 of the Indian Constitution.

[10] Petitioner has got no locus and in any case, petition

filed with a mala fide intent, is nothing but an abuse of judicial

process.

[11] The terms and conditions of the Merger Agreement with

the Indian Dominion prescribed that the State Government would

worship Mata Tripureswari and other temples, in a traditional

system. Since such practice was followed prior to the

independence, from the regime of the Maharaja, that domestic

animal sacrifice during worship, being an integral part of the

worship and as such, is still continued and cannot be stopped.

[12] That since long Hinduism accepted such practice and

sentiments of the sect of large Hindu culture involves such

sacrifices of the goats, pigeons, buffaloes etc. before the Goddess.

Petitioner has failed to consider such public sentiment of long
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religious profess and practice. The practice of animal sacrifice, is

as per the ―long accepted procedure of Hindu rituals of the Tantrik

method of worship of the Dash Maha Vidya‖, i.e. ten forms of the

Goddess of the Hindus.

[13] Further it is accepted by the Hindu scriptures and

various cults under Hinduism, that ―Devi Tripura Sundari‖(Mata

Tripureswari) is one of the 51 shakti piths of Hindu mythology and

one of the form of ―Dash Maha Vidya’ known as ―shoroshi‖ form,

which has been worshipped as per the Tantrik worship method of

the Tantrik Cult. The ―Tantric cult‖ has various steps of the

worship, with the last one to present ―Ahuti‖ in the form of

sacrifices of the goat(s), pigeon(s), buffaloe(s) etc. before the

Goddess, which is an integral part of the worship as per the

accepted practices of the cult. Also sentiment of the sect of large

Hindu culture is involved on such sacrifices before the Goddess for

ages.

[14] That the petition is motivated inasmuch as petitioner

has confined the issue of animal sacrifice only with regard to

Hindu religion and not laid any challenge to the practice of animal

sacrifice carried out by the Muslim community during their festival

of „Bakri Eid‟ and that petition has been filed ―only to disturb the

Hindu sentiment and presumably by anti Hindu elements‖ with a

view to disturb public order and as such is politically motivated.
Page 7 of 72

[15] It is further averred that in India, some religious

practices are followed by animal sacrifices before the

God/Goddess/Allah/Super Powers, following their cult of

concerned religion, such as Hindus, Muslims and some Tribal sect

of India as per their customs.

[16] To support his submission, that animal sacrifice is an

integral and essential part of practice of tenets of the temples in

the State of Tripura, during the course of hearing, learned

Advocate General has placed on record 3(three) documents; (i)

the works of W.W. Hunter termed as ―A Statistical Account of

Bengal‖ [Volume-VI, 1876 publication] relating to Chittagong Hill

Tracts, Chittagong, Noakhali, Tipperah, Hill Tipperah; (ii) Imperial

Gazetteer of India [Volume-IV] again works of W.W. Hunter and

(iii) minutes of the meeting dated 18th June, 1982 in connection

with the management of the public places of worship in Tripura.

[17] We now proceed to consider such contentions :

PROVISIONS UNDER THE INDIAN CONSTITUTION :

[18] Right to freedom of religion is one of the fundamental

rights as envisaged in Part – III of the Constitution of India. The

import of Article 25(1) of the Constitution is wide enough to

ensure every individual to have belief, faith and worship in any

religion according to the dictates of one’s conscience. Inclusive of

this, it also extends to acts done in furtherance of one’s religious

practices such as rituals, ceremonies in performing their religion
Page 8 of 72

and their right to profess or propagate the same. However, such

right is not absolute or unfettered, and is reasonably restricted

subject to ―public order, morality and health‖ and other provision

of Part -III of the Constitution of India. Every human activity in

the name of religion was not intended to be protected under

Article 25 and Article 26 of the Constitution. Though every

individual is entitled to freely perform its religious practices, but

every religious practice cannot be safeguarded by Article 25 and

only those practices which are integral and essential part of the

religion are safeguarded. On this context, it stands pertinent in

ascertaining as to what amounts to an essential and integral part

of religion and whether sacrificing of animals in the temples can

be considered to fall within the realm thereof or not.

[19] Effectively we shall be dealing with the provisions

contained in Part III, Part IV and Part IVA of the Constitution of

India.

[20] Insofar as Part III(Fundamental rights), the relevant

Articles would be 21, 25 and 26.

[21] Insofar as Part IV (Directive Principles of State Policy),

the relevant Articles would be 48 and 48A.

[22] Insofar as Part IVA (Fundamental Duties), the relevant

Articles would be 51A, (g), (h) and (i).

Page 9 of 72

[23] For correct reading, better appreciation and

understanding, as also for the purpose of ready reference, we

deem it appropriate to reproduce the same :-

Part – III (Fundamental Rights).

―21. Protection of life and personal liberty – No
person shall be deprived of his life or personal liberty
except according to procedure established by law.‖

―25. Freedom of conscience and free profession,
practice and propagation of religion –

(1) Subject to public order, morality and health
and to the other provisions of this Part, all
persons are equally entitled to freedom of
conscience and the right freely to profess,
practise and propagate religion.

(2) Nothing in this article shall affect the
operation of any existing law or prevent the
State from making any law

(a) regulating or restricting any
economic, financial, political or other
secular activity which may be associated
with religious practice;

(b) providing for social welfare and
reform or the throwing open of Hindu
religious institutions of a public character
to all classes and sections of Hindus

[Explanation I : The wearing and carrying
of kirpans shall be deemed to be included
in the profession of the Sikh religion.

Explanation II : In sub clause (b) of
clause reference to Hindus shall be
construed as including a reference to
persons professing the Sikh, Jaina or
Buddhist religion, and the reference to
Page 10 of 72

Hindu religious institutions shall be
construed accordingly.]‖
(Emphasis supplied).

―26. Freedom to manage religious affairs –

Subject to public order, morality and health, every
religious denomination or any section thereof shall
have the right

(a) to establish and maintain institutions
for religious and charitable purposes;

(b) to manage its own affairs in matters
of religion;

(c) to own and acquire movable and
immovable property; and

(d) to administer such property in
accordance with law.‖

Part – IV(Directive Principles of State Policy).

―48. Organisation of agriculture and animal
husbandry – The State shall endeavour to organise
agriculture and animal husbandry on modern and
scientific lines and shall, in particular, take steps for
preserving and improving the breeds, and prohibiting
the slaughter, of cows and calves and other milch and
drought cattle.‖
(Emphasis supplied).

―48A. Protection and improvement of
environment and safeguarding of forests and
wild life – The State shall endeavour to protect and
improve the environment and to safeguard the forests
and wild life of the country.‖
(Emphasis supplied).

Page 11 of 72

Part IV-A(Fundamental Duties).

―51A. It shall be the duty of every citizen of India;

…………..

(g) to protect and improve the natural
environment including forests, lakes, rivers and
wild life, and to have compassion for living
creatures;

(h) to develop the scientific temper, humanism
and the spirit of inquiry and reform;

(i) to safeguard public property and to abjure
violence.‖
(Emphasis supplied).

[24] The understanding of careful reading of Article 25

reveals that all persons are equally entitled to freedom of

conscience and have a right to freely profess, practise and

propagate religion, but then, this is subjected to certain rigours

and that being ―public order‖, ―morality‖, ―health‖ and ―other

provisions of Part III of the Constitution‖. Thus, to our reading,

though the right is exclusive in nature but is subjected to certain

restrictions within the Constitutional framework.

[25] Insofar as Article 26 is concerned, again the freedom

of every religious denomination or any section thereof, more

specifically to manage its own affairs in matter of religion are

subjected to public order, morality and health.

[26] In terms of Article 48, it is obligatory on the part of

the State, for the expression used is ―shall‖, to make an

endeavour of organizing agriculture and animal husbandry on the
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modern and scientific lines and take steps for preserving and

improving breeds and prohibiting the slaughter of cows and calves

and other milch and drought cattle. A restrictive meaning cannot

be given to the words ‗agriculture’ and ‗animal husbandry’. It is

not restricted only to oxen which are traditionally used for

agriculture. It would, in fact, include all types of animals put to

use for such purpose depending upon several factors such as

religion; practices followed and terrain, etc.. Agriculture and

animal husbandry are wider concepts having different

connotations e.g. father of the Nation ―Mahatma Gandhi‖ laid

emphasis on drinking goats milk for he found it to be extremely

nourishing.

[27] The term ―wildlife‖ has not been defined under the

Constitution (48A) but perhaps, would include ―any living being‖

necessary to form a chain of living organism.

[28] The Constitution calls upon every citizen of India to

exhibit compassion for all living creatures and develop a temper of

humanism towards all wildlife.

[29] An overall view of bare reading of the provisions would

thus exhibit that the framers of the Constitution had desired to

inter alia, develop a spirit of compassion and humanism, abjure

violence and also exhibit the same towards all living beings.
Page 13 of 72

[30] Conscious of the fact that all fundamental duties may

not be enforceable, but then, as we consider, are to be promoted

for achieving fulfillment of the constitutional goals. For then only,

excellence in all spheres of individual and collective activity would

result into the nation, constantly rising to higher levels of

endeavour and achievement.

COURTS INTERPRETATION OF ARTCILE 21 VIS-A-VIS LIFE
OF ANIMALS :

[31] Right to life, as has been held by the Apex Court in

Animal Welfare Board of India Vs. A Nagaraja and Ors.,

(2014)7 SCC 547 (2 Judge Bench) (hereinafter referred to as

„Jallikattu‟)[as affirmed in Chief Secretary to the

Government, Chennai, Tamil Nadu and Ors Vs. Animal

Welfare Board and Anr.,(2017) 2 SCC 144 (2 Judge)], now

stands extended to all living beings, thus the expression ―person‖

has to be read contextually. Hence, insofar as the life of an animal

with which we are concerned, cannot be deprived, save and

except, in accordance with the procedure established by law. What

is that procedure established by law, now stands succinctly

explained by the Constitution Bench (7 Judges) in MsR. Maneka

Gandhi Vs. Union of India another, (1978) 1 SCC 248

which means due process of law.

Page 14 of 72

COURTS INTERPRETATION OF ARTICLE 25 26 – RIGHT TO
FREEDOM OF RELIGION:

[32] In Para – 18 (supra) we have already referred to the

ambit and scope of the protected right under Article 25. It has to

be an essential and integral part or practice of any religion.

[33] The question of essential integral practices of religion

cropped up, perhaps for the first time, before the Constitution

Bench (7 Judges) in The Commissioner, Hindu Religious

Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar

of Sri Shirur Mutt, AIR 1954 SC 282 wherein the Court held

that religion is certainly a matter of faith with individuals or

communities, not necessarily theistic and that ―A religion

undoubtedly has its basis in a system of beliefs or doctrines which

are regarded by those who profess that religion as conducive to

their spiritual well being, but it would not be correct to say that

religion is nothing else, but a doctrine or belief. A religion may not

only lay down a code of ethical rules for its followers to accept, it

might prescribe rituals and observances, ceremonies and modes of

worship which are regarded as integral parts of religion, and these

forms and observances might extend even to matters of food and

dress. What article 25(2)(a) contemplates is not regulation by the

State of religious practices as such, the freedom of which is

guaranteed by the Constitution except when they run counter to

public order, health and morality, but regulation of activities which
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are economic, commercial or political in their character though

they are associated with religious practices.‖

[Also in Ratilal Panchand Gandhi and Ors., Vs.

State of Bombay and ors., AIR 1954 SC 388 (5 Judges)].

[34] The principle stood expanded by yet another

Constitution Bench(5 Judges) in Sardar Syedna Taher

Saifuddin Saheb Vs. State of Bombay, AIR 1962 SC 853

adding that the right guaranteed by Article 25 is an individual right

as distinguished from the right of an organised body like a

religious denomination or any section thereof dealt with by Article

26. Hence, every member of the community has the right, so long

as he does not in any way interfere with the corresponding rights

of others, to profess, practise and propagate his religion, and

everyone is guaranteed his freedom of conscience. A person is left

completely free to worship God according to the dictates of his

conscience, and that his right to worship as he is pleased, is

unfettered so long as it does not come into conflict with any

restraints, imposed by the State in the interest of public order,

etc. A person is not liable to answer for the verity of his religious

views, and he cannot be questioned as to his religious beliefs, by

the State or by any other person. His right to practise his religion

must also be subject to the criminal laws of the country, validly

passed with reference to actions which the Legislature has

declared to be of a penal character. Laws made by a competent

legislature in the interest of public order and the like, restricting
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religious practices, would come within the regulating power of the

State. The Court exemplified “that there may be religious practices

of sacrifice of human beings, or sacrifice of animals in a way

deleterious to the well being of the community at large. It is open

to the State to intervene, by legislation, to restrict or to regulate

to the extent of completely stopping such deleterious practices.‖ It

stood explained that it was on such humanitarian grounds, and for

the purpose of social reform, that so called religious practices like

immolating a widow at the pyre of her deceased husband, or of

dedicating a virgin girl of tender years to a god to function as a

devadasi, or of ostracising a person from all social contacts and

religious communion on account of his having eaten forbidden

food or taboo, were stopped by a legislation. Eventually, the twin

principles, underlying the provisions of Articles 25 and 26 of the

Constitution of India were explained, in the opinion authored by

Das Gupta, J in the following manner:

―The content of Arts.25 and 26 of the Constitution
came up for consideration before this Court in
the Commissioner, Hindu Religious Endowments
Madras v. Sri Lakshmindra Thirtha Swamiar of Sri
Shirur Matt (1); Mahant Jagannath Ramanuj Das v.
The State of Orissa (2); Sri Venkatamana Devaru v.
The State of Mysore (3); Durgah Committee, Ajmer
v. Syed Hussain Ali (4) and several other cases and
the main principles underlying these provisions have
by these decisions been placed beyond controversy.
The first is that the protection of these articles is not
limited to matters of doctrine or belief they extend
also to acts done in pursuance of religion and
Page 17 of 72

therefore contain a guarantee for rituals and
observances, ceremonies and modes of worship
which are integral parts of religion. The second is
that what constitutes an essential part of a religious
or religious practice has to be decided by the courts
with reference to the doctrine of a particular religion
and include practices which are regarded by the
community as a part of its religion.‖
(Emphasis supplied).

[35] The said principle stands reiterated by another

Constitution Bench(5 Judges) in Seshammal others etc. etc.

Vs. State of Tamil Nadu, (1972) 2 SCC 11.

[36] That courts are duty bound to ascertain as to what

practice is essential and integral part of the religion stands

emphatically held by the Constitution Bench(5 Judges) in Tilkayat

Shri Govindlalji Maharaj Vs. State of Rajasthan, (1964) 1

SCR 561: AIR 1963 SC 1638, in the following terms:

―58. In deciding the question as to whether a
given religious practice is an integral part of the
religion or not, the test always would be whether
it is regarded as such by the community following
the religion or not. This formula may in some
cases present difficulties in its operation. Take the
case of a practice in relation to food or dress. If in
a given proceeding, one section of the community
claims that while performing certain rites while
dress is an integral part of the religion itself,
whereas another section contends that yellow
dress and not the white dress is the essential part
of the religion, how is the Court going to decide
the question? Similar disputes may arise in regard
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to food. In cases where conflicting evidence is
produced in respect of rival contentions as to
competing religious practices the Court may not
be able to resolve the dispute by a blind
application of the formula that the community
decides which practice is an integral part of its
religion, because the community may speak with
more than one voice and the formula would,
therefore, break down. This question will always
have to be decided by the Court and in doing so,
the Court may have to enquire whether the
practice in question is religious in character and if
it is, whether it can be regarded as an integral or
essential part of the religion, and the finding of
the Court on such an issue will always depend
upon the evidence adduced before it as to the
conscience of the community and the tenets of its
religion. It is in the light of this possible
complication which may arise in some cases that
this Court struck a note of caution in the case of
the Durgah Committee, Ajmer v. Syed Hussain
Ali, and observed that in order that the practices
in question should be treated as a part of religion
they ‘must be -regarded by the said religion as its
essential and integral part ; otherwise even
purely secular practices which are not an
essential or an integral part of religion are apt to
be clothed with a religious form and may make a
claim for being treated as religious practices
within the meaning of Art.26.

(Emphasis supplied).

[37] Still further, as to what would constitute an essential

integral part or practice of the religion stands succinctly explained

in Commissioner of Police others Vs. Acharya
Page 19 of 72

Jagadishwarananda Avadhuta another, (2004) 12 SCC

770 (3 Judge Bench) in the following terms:

―9. The protection guaranteed under Articles 25 and
26 of the Constitution is not confined to matters of
doctrine or belief but extends to acts done in
pursuance of religion and, therefore, contains a
guarantee for rituals, observances, ceremonies and
modes of worship which are essential or integral part
of religion. What constitutes an integral or essential
part of religion has to be determined with reference
to its doctrines, practices, tenets, historical
background etc. of the given religion. (See generally
the Constitution bench decisions in The
Commissioner vs. L.T. Swamiar of Srirur Mutt 1954
SCR 1005, SSTS Saheb vs. State of Bombay 1962
(Supp) 2 SCR 496, and Seshammal vs. State of
Tamilnadu (1972) 2 SCC 11, regarding those aspects
that are to be looked into so as to determine whether
a part or practice is essential or not). What is meant
by „an essential part or practices of a religion‟ is now
the matter for elucidation. Essential part of a religion
means the core beliefs upon which a religion is
founded. Essential practice means those practices
that are fundamental to follow a religious belief. It is
upon the cornerstone of essential parts or practices
the superstructure of religion is built. Without which,
a religion will be no religion. Test to determine
whether a part or practice is essential to the religion
is – to find out whether the nature of religion will be
changed without that part or practice. If the taking
away of that part or practice could result in a
fundamental change in the character of that religion
or in its belief, then such part could be treated as an
essential or integral part. There cannot be additions
or subtractions to such part because it is the very
essence of that religion and alterations will change its
Page 20 of 72

fundamental character. It is such permanent
essential parts which are protected by the
Constitution. Nobody can say that an essential part
or practice of one‟s religion has changed from a
particular date or by an event. Such alterable parts
or practices are definitely not the “core” of religion
whereupon the belief is based and religion is founded
upon. They could only be treated as mere
embellishments to the non-essential (sic essential)
part or practices.‖
(Emphasis supplied).

We notice that the very same paragraph stands

reproduced and reiterated subsequently by another Constitution

Bench (5 Judges) in Shayara Bano Vs. Union of India

others, (2017) 9 SCC 1.

[38] What is the difference between a religious practice and

essential and integral part of practice of a religion, stands

considered by the Constitution Bench (5 Judges) of the Apex Court

in Dr. M. Ismail Faruqui others Vs. Union of India

others, (1994) 6 SCC 360 as under:

―78. While offer of prayer or worship is a
religious practice, its offering at every location
where such prayers can be offered would not be
an essential or integral part of such religious
practice unless the place has a particular
significance for that religion so as to form an
essential or integral part thereof. Places of
worship of any religion having particular
significance for that religion, to make it an
essential or integral part of the religion, stand on
Page 21 of 72

a different footing and have to be treated
differently and more reverentially.‖

[39] The Constitution Bench (5 Judges) of the Apex Court

in Durgah Committee, Ajmer another Vs. Syed Hussain Ali

others, AIR 1961 SC 1402 cautioned that even practices

though religious may have sprung from merely superstitious

beliefs and may in that sense be extraneous and unessential

accretions to religion itself.

[40] In N. Adithayan Vs. Travancore Devaswom

Board others, (2002) 8 SCC 106 (2 Judge Bench) while

holding that a non-Brahmin could be appointed as a priest in a

particular temple and appointment of only Brahmins as pujari

cannot be said to be an essential part of religion; that the vision of

the founding fathers of Constitution to liberate the society from

blind and ritualistic adherence to mere traditional superstitious

beliefs sans reason or rational basis finds expression in the form of

Article 17; the legal position that protection under Article 25 and

26 extend a guarantee for rituals and observances, ceremonies

and modes of worship which are integral part of religion and as to

what really constitutes an essential part of religion or religious

practice has to be decided by the Courts and that “any custom or

usage irrespective of even any proof of their existence in pre

constitutional days cannot be countenanced as a source of law to

claim any rights when it is found to violate human rights, dignity,

social equality and the specific mandate of the Constitution and
Page 22 of 72

law made by Parliament. No usage which is found to be pernicious

and considered to be in derogation of the law of the land or

opposed to public policy or social decency can be accepted or

upheld by Courts in the country.‖

(Emphasis supplied).

[41] In A. S. Narayana Deekshitulu Vs. State of A.P.

others, (1996) 9 SCC 548 (2 Judge Bench) the Court

emphasized the need of co-existence and tolerance, the very spirit

of ancient thought in the scriptures of taking care of and look

upon all living beings as friends, ―for in all of them there resides

one soul. All are but a part of that universal soul.‖ It took note of

the reforms brought in by the society, changing old values,

crumbling old social orders. With the change of the social order,

religion itself has undergone several changes, by responding to

the social system, in introducing corresponding changes both in

the religion and the religious institutions. The issue as to whether

right of the priest (Archaka) is hereditary or not stood answered in

the negative by holding that though performance of the ritual

ceremony is an integral part of the religion but the person who

performs the same or associates himself with the performance of

such ceremony, is not.

[42] On the issue in hand, we stand immensely benefited by

the most recent decision rendered by the Constitution Bench (5

Judges-4:1) in Indian Young Lawyers Association others

Vs. State of Kerala others, (2018) 13 SCALE 75 (5 Judge)
Page 23 of 72

(hereinafter referred to as ‘Sabarimala’) with profit we extract

the relevant portion of the separate opinion(s) rendered by the

Hon’ble Members of the Bench. For determining what is an

essential part of practice of one’s religion, Hon’ble Dipak Mishra,

CJI, as he then was, opined that :

―Nobody can say that essential part or practice of
one’s religion has changed from a particular date
or by an event. Such alterable parts or practices
are definitely not the ‘core’ of religion where the
belief is based and religion is founded upon. It
could only be treated as mere embellishments to
the non-essential part or practices. This view of
ours is further substantiated by the fact that
where a practice changes with the efflux of time,
such a practice cannot, in view of the law laid
down in Commissioner of Police and Ors.(supra),
be regarded as a core upon which a religion is
formed. There has to be unhindered continuity in
a practice for it to attain the status of essential
practice.‖
(Emphasis supplied).

[43] And constitutionally what would ―morality‖ mean

stands explained, by him, that :

―The term ‘morality’ occurring in Article 25(1) of
the Constitution cannot be viewed with a narrow
lens so as to confine the sphere of definition of
morality to what an individual, a Section or
religious sect may perceive the term to mean.

Since the Constitution has been adopted and
given by the people of this country to themselves,
the term public morality in Article 25 has to be
Page 24 of 72

appositely understood as being synonymous with
constitutional morality.‖

[44] After discussion, Hon’ble R F Nariman, J in Para 21 of

his opinion, inter alia, culled out, the following propositions:

―21. A conspectus of these judgments,
therefore, leads to the following propositions:

21.1. Article 25 recognises a fundamental
right in favour of – all persons which has
reference to natural persons.

21.2. This fundamental right equally
entitles all such persons to the said
fundamental right. Every member of a
religious community has a right to
practice the religion so long as he does
not, in any way, interfere with the
corresponding right of his co-religionists
to do the same.

21.3. The content of the fundamental
right is the fleshing out of what is stated
in the Preamble to the Constitution as
“liberty of thought, belief, faith and
worship”. Thus, all persons are entitled to
freedom of conscience and the right to
freely profess, practice, and propagate
religion.

21.4. The right to profess, practice, and
propagate religion will include all acts
done in furtherance of thought, belief,
faith, and worship.

21.5. The content of the right concerns
itself with the word “religion” – Religion in
this Article would mean matters of faith
with individuals or communities, based on
a system of beliefs or doctrines which
conduce to spiritual well-being. The
aforesaid does not have to be theistic but
can include persons who are agnostics
and atheists.

Page 25 of 72

21.6. It is only the essential part of
religion, as distinguished from secular
activities, that is the subject matter of
the fundamental right. Superstitious
beliefs which are extraneous,
unnecessary accretions to religion cannot
be considered as essential parts of
religion. Matters that are essential to
religious faith and/or belief are to be
judged on evidence before a court of law
by what the community professing the
religion itself has to say as to the
essentiality of such belief. One test that
has been evolved would be to remove the
particular belief stated to be an essential
belief from the religion-would the religion
remain the same or would it be altered?

Equally, if different groups of a religious
community speak with different voices on
the essentiality aspect presented before
the Court, the Court is then to decide as
to whether such matter is or is not
essential. Religious activities may also be
mixed up with secular activities, in which
case the dominant nature of the activity
test is to be applied. The Court should
take a common-sense view and be
actuated by considerations of practical
necessity.

21.7. The exceptions to this individual
right are public order, morality, and
health. “Public order” is to be
distinguished from “law and order”.

“Public disorder” must affect the public at
large as opposed to certain individuals. A
disturbance of public order must cause a
general disturbance of public tranquility.
The term “morality” is difficult to define.
For the present, suffice it to say that it
refers to that which is considered
abhorrent to civilized society, given the
mores of the time, by reason of harm
caused by way, inter alia, of exploitation
or degradation. “Health” would include
noise pollution and the control of disease.
Page 26 of 72

21.8. Another exception to the
fundamental right conferred by Article
25(1) is the rights that are conferred on
others by the other provisions of Part
III.‖
(Emphasis supplied).

[45] Hon’ble D Y Chandrachud, J, has held ―morality‖ for

the purposes of Article 25 and 26 to mean ―that which is governed

by a fundamental constitutional principles‖ (Para-11); he clearly

opined that “conversation with the Constitution must be

restructured to evolve both with the broadening of the content of

liberty and dignity and the role of the Court as an enforcer of

constitutional doctrine” (Para-17) and that it must be proved that

“Practice is essential to religion and inextricably connected with its

fundamental character.”

[46] On the issue of ―constitutional morality‖ he opined

that the right of freedom of religion ―is not a stand alone right‖. It

is an integral element of the entire chapter of fundamental rights

and constitutional Articles which recognize fundamental rights and

have to be understood ―as a seamless web‖. Together they build

the edifice of constitutional liberty and fundamental human

freedoms in Part – III are not disjunctive or isolated. They exist

together. It is only in cohesion that they bring a realistic sense to

the life of the individual as the focus of human freedoms. Further

held that :

―The discourse of freedom in the Constitution
cannot be denuded of its context by construing an
Article in Part III detached from the part within
Page 27 of 72

which it is situated. Even the right of a religious
denomination to manage its own affairs in
matters of religion cannot be exercised in
isolation from Part III of the Constitution. The
primacy of the individual, is the thread that runs
through the guarantee of rights. In being located
in Part III of the Constitution, the exercise of
denominational rights cannot override and render
meaningless constitutional protections which are
informed by the overarching values of a liberal
Constitution. The Constitution seeks to achieve a
transformed society based on equality and justice
to those who are victims of traditional belief
systems founded in graded inequality.‖

[47] Here only we may also take note of the view

expressed by Hon’ble Ms. Indu Malhotra, J, which though on the

main issue is a minority view, but not dissented or differed by the

majority in holding that “It is the duty of this Court to strike, and

balance and ensure that fundamental right of one person not

existence to harmony to the fundamental right of one co-exist in

harmony with the exercise of Fundamental Rights of others.”

[48] Dissentingly, on the issue of meeting the test of

essentiality, Her Ladyship observed as under:

―13.6. Reference is required to be made to the
doctrines and tenets of a religion, its historical
background, and the scriptural texts to ascertain
the ‘essentiality’ of religious practices. The
‘essential practices test’ in its application would
have to be determined by the tenets of the
religion itself. The practises and beliefs which are
considered to be integral by the religious
Page 28 of 72

community are to be regarded as “essential”, and
afforded protection Under Article 25. The only
way to determine the essential practices test
would be with reference to the practices followed
since time immemorial, which may have been
scripted in the religious texts of this temple. If
any practice in a particular temple can be traced
to antiquity, and is integral to the temple, it must
be taken to be an essential religious practice of
that temple.‖

CONCEPT AND MEANING OF –

(i) MORALITY – CONSTITUTIONAL MORALITY :

[49] Apart from what stands held in Sabarimala, opinion

of Hon’ble Mishra,J Nariman,J and Chandrachud,J

reproduced(supra) the expression ―constitutional morality‖ stands

explained by the Constitution Bench (5 Judges) of the Apex Court

in State (NCT of Delhi) Vs. Union of India another, (2018)

8 SCC 501 in the following terms:

―294. Constitutional morality does not mean
only allegiance to the substantive provisions and
principles of the Constitution. It signifies a
constitutional culture which each individual in a
democracy must imbibe ………‖

―………..One of the essential features of
constitutional morality, thus, is the ability and
commitment to arrive at decisions on important
issues consensually. It requires that ―despite all
differences we are part of a common deliberative
enterprise. It envisages partnership and
coordination between various institutions created
by the Constitution …………‖
Page 29 of 72

Which stood reiterated by yet another Constitution

Bench(5 Judges) in Navtej Singh Johar others Vs. Union of

India others, (2018) 10 SCC 1 in the following terms:

―130. In Government of NCT of Delhi v. Union
of India and others52, one of us (Dipak Misra,
CJI) observed:-

“Constitutional morality, appositely
understood, means the morality that has
inherent elements in the constitutional
norms and the conscience of the
Constitution. Any act to garner
justification must possess the
potentiality to be in harmony with the
constitutional impulse. We may give an
example. When one is expressing an
idea of generosity, he may not be
meeting the standard of justness. There
may be an element of condescension.
But when one shows justness in action,
there is no feeling of any grant or
generosity. That will come within the
normative value. That is the test of
constitutional justness which falls within
the sweep of constitutional morality. It
advocates the principle of constitutional
justness without subjective exposition of
generosity.”

131. The duty of the constitutional courts is
to adjudge the validity of law on well-established
principles, namely, legislative competence or
violations of fundamental rights or of any other
constitutional provisions. At the same time, it is
expected from the courts as the final arbiter of
the Constitution to uphold the cherished
principles of the Constitution and not to be
remotely guided by majoritarian view or popular
perception. The Court has to be guided by the
conception of constitutional morality and not by
the societal morality.

Page 30 of 72

133. In this regard, we have to telescopically
analyse social morality vis-à-vis constitutional
morality. It needs no special emphasis to state
that whenever the constitutional courts come
across a situation of transgression or dereliction
in the sphere of fundamental rights, which are
also the basic human rights of a section,
howsoever small part of the society, then it is for
the constitutional courts to ensure, with the aid of
judicial engagement and creativity, that
constitutional morality prevails over social
morality.‖
(Emphasis supplied).

(ii) PUBLIC ORDER :

[50] We have already noticed what stands observed in

Sabarimala (supra) but are embolden to extract the opinion of the

Court explaining the difference between the law order and public

order stands explained in Gulab Mehra Vs. State of U.P.

others, (1987) 4 SCC 302 (2 Judge Bench) to mean:

―Thus from these observations it is evident that
an act whether amounts to a breach of law and
order or a breach of public order solely depends
on its extent and reach to the society. If the act is
restricted to particular individuals or a group of
individuals it breaches the law and order problem
but if the effect and reach and potentiality of the
act is so deep as to affect the community at large
and or the even tempo of the community that it
becomes a breach of the public order ………..

Also public tranquility is part of public order.‖
Page 31 of 72

It’s a reiteration of the Constitution Bench (5 Judges)

in The Superintendent, Central Prison, Fatehgarh another

Vs. Dr. Ram Manohar Lohia, AIR 1960 SC 633 and in O.K.

Ghosh another Vs. E.X. Joseph, AIR 1963 SC 812 (5

Judges). As also Constitution Bench (7 Judges) in Madhu Limaye

Vs. Sub-Divisional Magistrate, Monghyr others, 1970 (3)

SCC 746.

(iii) HEALTH :

[51] In C.E.S.C. Limited others Vs. Subhash Chandra

Bose others, (1992) 1 SCC 441 (3 Judge Bench) it stands

held that ―the term health implies more than an absence of sickness.‖

[Para 32] and in reference to a workmen, the expression ―health‖

stands reiterated in Kirloskar Brothers Ltd. Vs. Employees’

State Insurance Corpn., (1996) 2 SCC 682 (3 Judge Bench) to

mean ―a state of complete physical, mental and social well being

and right to health, therefore, is a fundamental and human right

of the workmen‖ and what Nariman,J held in Sabarimala would

also includes noise pollution and control of disease.

CONCEPT OF HINDUISM :

[52] Who are Hindus and what are the broad features of

Hindu religion stands explained by the Constitution Bench (5

Judge) in Shastri Yagnapurushdasji others Vs. Muldas

Bhundardas Vaishya another, AIR 1966 SC 1119, which

principles subsequently elaborated in Adi Saiva Sivachariyargal
Page 32 of 72

Nala Sangam others Vs. Government of Tamil Nadu

another, (2016) 2 SCC 725 (2 Judge Bench) and what the

Hon’ble Supreme Court itself observed that ―passages from the

report are truly worthy of reproduction both for the purpose of

recapitulation and illumination”, even though lengthy, prudently to

follow the same and extract as under :

―30. ………………

29. When we think of the Hindu religion,
we find it difficult, if not impossible, to
define Hindu religion or even adequately
describe it. Unlike other religions in the
world, the Hindu religion does not claim
any one prophet; it does not worship any
one God; it does not subscribe to any one
dogma; it does not believe in any one
philosophic concept; it does not follow any
one set of religious rites or performances;
in fact, it does not appear to satisfy the
narrow traditional features of any religion
or creed. It may broadly be described as a
way of life and nothing more.

30. The Hindu thinkers reckoned with
the striking fact that the men and women
dwelling in India belonged to different
communities, worshipped different gods,
and practiced different rites (Kurma
Purana).(Ibid p.12.)

31. …..It presents for our
investigation a complex congeries of
creeds and doctrines which in its gradual
accumulation may be compared to the
gathering together of the mighty volume
of the Ganges, swollen by a continual
Page 33 of 72

influx of tributary rivers and rivulets,
spreading itself over an ever-increasing
area of country and finally resolving itself
into an intricate Delta of tortuous steams
and jungly marshes …….. The Hindu
religion is a reflection of the composite
character of the Hindus, who are not one
people but many. It is based on the idea of
universal receptivity. It has ever aimed at
accommodating itself to circumstances,
and has carried on the process of
adaptation through more than three
thousand years. It has first borne with and
then, so to speak, swallowed, digested,
and assimilated something from all
creeds.” (“Religious Thought Life in
India” by Monier Williams, P.57.)

32. …. The history of Indian thought
emphatically brings out the fact that the
development of Hindu religion has always
been inspired by an endless quest of the
mind for truth based on the consciousness
that truth has many facets. Truth is one,
but wise men describe if differently. The
Indian mind has, consistently through the
ages, been exercised over the problem of
the nature of godhead the problem that
faces the spirit at the end of life, and the
interrelation between the individual and
the universal soul. “If we can abstract
from the variety of opinion”, says Dr.
Radhakrishnan, “and observe the general
spirit of Indian thought, we shall find that
it has a disposition to interpret life and
nature in the way of monistic idealism,
though this tendency is so plastic, living
and manifold that it takes many forms and
Page 34 of 72

expresses itself in even mutually hostile
teachings”.(Ibid, p.32.)

33. ….Though philosophic concepts and
principles evolved by different Hindu
thinkers and philosophers varied in many
ways and even appeared to conflict with
each other in some particulars, they all
had reverence for the past and accepted
the Vedas as the sole foundation of the
Hindu philosophy. Naturally enough, it was
realised by Hindu religion from the very
beginning of its career that truth was
many-sided and different views contained
different aspects of truth which no one
could fully express.

*** *** ***

36. Do the Hindus worship at their
temples the same set or number of gods?

That is another question which can be
asked in this connection; and the answer
to this question again has to be in the
negative. Indeed, there are certain
sections of the Hindu community which do
not believe in the worship of idols; and as
regards those sections of the Hindu
community which believe in the worship of
idols their idols differ from community to
community and it cannot be said that one
definite idol or a definite number of idols
are worshipped by all the Hindu in general.
In the Hindu Pantheon the first goods that
were worshipped in Vedic times were
mainly Indra, Varuna, Vayu and Agni.

Later, Brahma, Vishnu and Mahesh came
to be worshipped. In course of time, Rama
and Krishna secured a place of pride in the
Page 35 of 72

Hindu Pantheon, and gradually as different
philosophic concepts held sway in different
sects and in different sections of the Hindu
community, a large number of gods were
added, with the result that today, the
Hindu Pantheon presents the spectacle of
a very large number of gods who are
worshipped by different sections of the
Hindus.

37. The development of Hindu religion
and philosophy shows that from time to
time saints and religious reformers
attempted to remove from the Hindu
thought and practices elements of

corruption and superstition and that led to
the formation of different sects. Buddha
stated Buddhism; Mahavir founded
Jainism; Basava became the founder of
Lingayat religion, Dnyaneshwar and
Tukaram initiated the Varakari cult; Guru
Nanak inspired Sikhism; Dayananda
founded Arya Samaj, and Chaitanya began
Bhakti cult; and as a result of the
teachings of Ramakrishna and
Vivekananda, Hindu religion flowered into
its most attractive, progressive and
dynamic form. If we study the teachings of
these saints and religious reformers, we
would notice an amount of divergence in
their respective views; but underneath
that divergence, there is a kind of subtle
indescribable unity which keeps them
within the sweep of the broad and
progressive Hindu religion.

           ***              ***            ***
Page 36 of 72

40. Tilak faced this complex and

difficult problem of defining or at least
describing adequately Hindu religion and
he evolved a working formula which may
be regarded as fairly adequate and
satisfactory. Said Tilak : "Acceptance of
the Vedas with reverence; recognition of
the fact that the means or ways to
salvation are diverse and realisation of the
truth that the number of gods to be
worshipped is large, that indeed is the
distinguishing feature of Hindu religion.
This definition brings out succinctly the
broad distinctive features of Hindu religion.
It is somewhat remarkable that this broad
sweep of Hindu religion has been
eloquently described by Toynbee. Says
Toynbee : "When we pass from the plane
of social practice to the plane of
intellectual outlook, Hinduism too comes
out well by comparison with the religions
an ideologies of the South-West Asian
group. In contrast to these Hinduism has
the same outlook as the pre- Christian and
pre-Muslim religions and philosophies of
the Western half of the old world. Like
them, Hinduism takes it for granted that
there is more than one valid approach to
truth and to salvation and that these
different approaches are not only
compatible with each other, but are
complementary".

34. The fact that reference to Hindus in the
Constitution includes persons professing the
Sikh, Jain and Buddhist religions and the
statutory enactments like Hindu Marriage
Act, Hindu Succession Act etc. also embraces
Page 37 of 72

Sikhs, Jains and Buddhists within the ambit of
the said enactments is another significant fact
that was highlighted and needs to be specially
taken note of.

35. What is sought to be emphasized is that
all the above would show the wide expanse of
beliefs, thoughts and forms of worship that
Hinduism encompasses without any divergence
or friction within itself or amongst its adherents.
It is in the backdrop of the above response to
the question posed earlier ―what is Hinduism‖?
that we have to proceed further in the matter.

36. Image worship is a predominant feature
of Hindu religion. The origins of image worship is
interesting and a learned discourse on the
subject is available in a century old judgment of
the Madras High Court in Gopala Mooppanar and
Others Vs. Subramania Iyer and other. In the
said report the learned Judge (Sadasiva Aiyar,
J.) on the basis of accepted texts and a study
thereof had found that in the ―first stage‖ of
existence of mankind God was worshiped as
immanent in the heart of everything and worship
consisted solely in service to ones fellow
creatures. In the second age, the spirit of
universal brotherhood has lost its initial efficacy
and notions of inferiority and superiority
amongst men surfaced leading to a situation
where the inferior man was asked to worship the
superior man who was considered as a
manifestation of God. Disputes arose about the
relative superiority and inferiority which was
resolved by the wise sages by introducing image
worship to enable all men to worship God
without squabbles about their relative
superiorities. With passage of time there
Page 38 of 72

emerged Rules regulating worship in temples
which came to be laid down in the treatises
known as Agamas and the Thantras. Specifically
in Gopala Moopanar (supra), it was noticed that
the Agamas prescribed rules as regards ―what
caused pollution to a temple and as regards the
ceremonies for removing pollution when
caused.‖

37. In the said judgment it is further
mentioned that, ―There are, it is well known
Thanthries in Malabar who are specialists in
these matters of pollution. As the temple priests
have got the special saivite initiation or
dheeksha which entitles them to touch the inner
most image, and as the touch of the persons
who have got no such initiation, even though
they be Brahmins, was supposed to pollute the
image, even Brahmins other than the temple
priest were in many temples not allowed to go
into the garbhagraham.‖

The Agamas also contain other prescriptions
including who is entitled to worship from which
portion of the temple.

―In one of the Agamas it is said (as freely
translated) thus : ―Saivite Brahmin priests
are entitled to worship in the anthrala
portion. Brahmins learned in the Vedas are
entitled to worship in the arthamantapa,
other Brahmins in the front Mantapa,
Kings and Vaisyas in the dwaramantapa,
initiated Sudras in the Bahir Mantapa‖ and
so on.‖

The legal effect of the above prescriptions
need not detain us and it is the portion
underlined which is of particular importance as
the discussions that follow would reveal.‖
Page 39 of 72

ACTS WHICH DO NOT FORM AN ESSENTIAL PART OR
PRACTICE OF A RELIGION :

[53] In Mohd. Hanif Quareshi others Vs. State of

Bihar, AIR 1958 SC 731, the Constitution Bench (5 Judges) held

that ―the sacrifice of a cow on the occasion of Bakr-id day is not

an obligatory overt act for a Muslim to exhibit his religious belief

and idea and consequently, there was no violation of the Muslim

religious practice under Article 25 of the Indian constitution.‖

[Also State of W.B. others Vs. Ashutosh Lahiri

others, (1995) 1 SCC 189 (3 Judges) and Constitution Bench (7

Judges) in State of Gujarat Vs. Mirzapur Moti Kureshi Kassab

Jamat others, (2005) 8 SCC 534.]

[54] In N. Adithayan(supra) the Apex Court held that a

non-Brahmin could be appointed as a priest in a particular temple

and appointment of only Brahmins as pujari cannot be said to be

an essential part of religion.

[Also in Riju Prasad Sarma others Vs. State of

Assam others, (2015) 9 SCC 461(2 Judge Bench) and in

Javed others Vs. State of Haryana others, (2003) 8 SCC

369 (3 Judge Bench).]

[55] In Shayara Bano (supra), prevention of ―triple talaq‖

was held illegal being contrary to the constitutional ethos. It

violates the fundamental right of a Muslim woman as it irrevocably
Page 40 of 72

ends marriage. ―Triple Talaq‖ also not being a basic and integral

part of Islam - religion practiced by Muslims.

[56] In Sabarimala(supra) it was observed that religion

is a way of life intrinsically linked to the dignity of an individual

and patriarchal practices based on exclusion of one gender in

favour of another could not be allowed to infringe upon the

fundamental freedom to practice and profess one's religion.

Ayyappana are Hindus and the practice of excluding women

cannot be held to be an essential religious practice. Accordingly,

Rule 3(b) of the Kerala Hindu Places of Public Worship

(Authorization of Entry) Rules of 1965 was struck down as

unconstitutional and ultra vires to sections 3, 4 of the Parent Act.

BINDING EFFECT AND ENFORCEABILITY OF PART IV IVA
OF THE CONSTITUTION OF INDIA :

[57] Insofar as Part IV of the Constitution is concerned, the

Constitution Bench(5 Judges) in Mohd. Hanif Quareshi (supra),

held that no doubt, directive principles are not enforceable by any

Court of law, but nevertheless they are fundamental in the

governance of the country and it is the duty of the State to give

effect to them. A harmonious interpretation has to be placed upon

the Constitution and so interpreted, to mean, that the State

should certainly implement the directive principles in such a

manner, that the laws, do not take away or abridge the
Page 41 of 72

fundamental rights, for otherwise the protecting provisions of

Chapter III will be ―a mere rope of sand‖.

[58] However, subsequently in Akhil Bharat Goseva

Sangh Vs. State of A.P. others, (2006) 4 SCC 162 (2 Judge

Bench) in construing Part - III and Part - IV it held that "both

directive principles and fundamental duties must be kept in mind

while assessing the reasonableness of legal restrictions placed

upon fundamental rights". The background being the use of cattle.

It was observed that cattle formed the backbone of Indian

agriculture; they remain useful throughout their life whether milch

or drought; and that total prohibition of cow and cow progeny

slaughter may be justified.

[59] The Constitution Bench (5 Judges) of the Apex Court in

Minerva Mills Ltd. and Ors. Vs. Union of India and Ors., AIR

1980 SC 1789 held as under :

―..........When the State makes a law for giving
effect to a Directive Principle, it is carrying out a
constitutional obligation under Article 37 and if it
were to be said that the State cannot make such a
law because it comes into conflict with a
Fundamental Right, it can only be on the basis that
Fundamental Rights stand on a higher pedestal
and have precedence over Directive Principles. But,
as we have pointed out above, it is not correct to
say that under our constitutional scheme,
Fundamental Rights are superior to Directive
Principles or that Directive Principles must yield to
Fundamental Rights. Both are in fact equally
Page 42 of 72

fundamental and the courts have therefore in
recent times tried to harmonise them by importing
the Directive Principles in the construction of the
Fundamental Rights...........‖

[60] In Mirzapur(supra) it was observed that changing

factual conditions and State policy have to be considered and

given weightage by the courts while deciding constitutional validity

of legislative enactments. A restriction placed on any fundamental

right, aimed at securing directive principles will be held as

reasonable and hence intra vires, subject to two limitations: first,

that it does not run in clear conflict with the fundamental right,

and secondly, that it has been enacted within the legislative

competence of the enacting legislature under Part XI Chapter I of

the Constitution.

STATUTE PREVENTING CRUELTY TO ANIMAL :

[61] Noticeably prevention of cruelty to animals is listed in

the 7th Schedule [Concurrent List (List 3)] of the Constitution of

India and by virtue of Article 246, the Central Government has

enacted the Prevention of Cruelty to Animals Act, 1960

(hereinafter referred to as „the Prevention Act‟). The object of this

Act, inter alia, is to prevent infliction of unnecessary pain and

suffering on animals.

[62] The prevention Act has been enacted with an object of

safeguarding the welfare of the animals and to cure certain

mischief and age old practices, so as to bring into effect certain
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reforms, based on eco centric principles, recognizing the intrinsic

value and worth of animals.

[63] Section 2(a) defines the animal to mean any ―living

creature other than a human being‖ and Section 3 confers duty on

every person, having care or charge of animal to take all

reasonable measures of ensuring well being of such animal and

prevent infliction thereupon, of unnecessary pain or suffering. It

reads as under :

             ―3.   Duties     of      persons        having       charge    of
animals - Duties of persons having charge of

animals.--It shall be the duty of every person
having the care or charge of any animal to take
all reasonable measures to ensure the well-being
of such animal and to prevent the infliction upon
such animal of unnecessary pain or suffering.‖

[64] Chapter II provides for the establishment of Animal

Welfare Board and the functions of the Board, inter alia, being:

―9(b) to advise the Central Government on the
making of rules under this Act with a view to
preventing unnecessary pain or suffering to
animals generally, and more particularly when
they are being transported from one place to
another or when they are used as performing
animals or when they are kept in captivity or
confinement;

......... .......... .........

(d) to take all such steps as the Board may think
fit for 11 [ameliorating of animals] by
encouraging, or providing for, the construction of
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sheds, water-troughs and the like and by
providing for veterinary assistance to animals;

            (e) to   advise    the    Government              or     any    local
authority or other person in the design of
slaughter-houses or in the maintenance of

slaughter-houses or in connection with slaughter
of animals so that unnecessary pain or suffering,
whether physical or mental, is eliminated in the
pre-slaughter stages as far as possible, as
animals are killed, wherever necessary, in as
humane a manner as possible;

(f) to take all such steps as the Board may think
fit to ensure that unwanted animals are destroyed
by local authorities, whenever it is necessary to
do so, either instantaneously or after being
rendered insensible to pain of suffering;

......... .......... .........

(h) to co-operate with, and co-ordinate the work
of, associations or bodies established for the
purpose of preventing unnecessary pain or
suffering to animals or for the protection of
animals and birds.‖

(Emphasis supplied).

[65] It is thus seen that it is the duty of the Board to

advise the Government on the making of rules with a view to

prevent unnecessary pain or suffering, whether physical or

mental, to the animals generally; encourage construction of

sheds, water-toughs etc. by providing for veterinary assistance to

animals; advise the Government or any local authority or other

person in designing slaughter houses and maintaining the same in
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connection with the slaughter of animals. What is important that

unnecessary pain or suffering, whether physical or mental, is to be

eliminated in the pre-slaughter stage, to the extent possible and

that animals are killed, wherever necessary, in a humane manner.

Emphasis is laid to prevent infliction of any sort of pain, suffering

or trauma on any animal, prior to it being slaughtered or killed.

[66] By virtue of Section 11, any person who tortures, treats

or subjects the animal to unnecessary pain or suffering or

mutilates or kills the animal, in any unnecessary manner, is liable

to be tried and punished in accordance with law.

[67] However, Section 28 contained in Chapter VI,

reproduced hereinafter carves out an exception :

―28. Saving as respects manner of killing
prescribed by religion - Nothing contained in this
Act shall render it an offence to kill any animal in
a manner required by the religion of any
community.‖

(Emphasis supplied).

[68] Its language is simple and unambiguously clear. It

does not exempt applicability of any one of the provisions of the

Act. All that is prescribed is 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 the

culpability of an offence. But that would not mean that provisions

contained in Chapter I, II and III of the Prevention Act became
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ineffective, inoperative or made redundant, when it comes to

killing of an animal for a religious purpose, unless such religion

requires such killing in a particular manner, the provision of

Section 3 would stare in the face of the State.

[69] Which religion or community mandates infliction of

unnecessary pain or suffering on an animal? Which religion

prescribes that physical or mental pain or suffering should not be

eliminated in the pre-slaughter stage? Which religion would want

its followers not to treat animal with compassion, care or a

humane approach? And above all, which religion would allow itself

to be shackled to dogma, superstition and unfounded beliefs so as

not to reform and be in tune with the changing times in pursuit of

Constitutional goals and morality.

It is a matter of record that the State, pursuant to

directions issued by the Supreme Court, has constituted Boards

and Committees at different levels. All this is to pursue the object

and implement the provisions of the Prevention Act.

[70] Significantly, under the rule making power (Section

38), the Central Government has notified the Prevention of Cruelty

to Animals (Slaughter House) Rules, 2001 and by virtue thereof,

slaughter houses are required to be constructed and maintained.

Reference of the said rules is only to highlight the requirement of

slaughtering the animals in isolation and not in the site of or

visibility of another animal which is evident from Rule 6. Also only
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such of those animals are to be slaughtered which are found fit

and certified by a veterinary doctor. As per Rule 7, there has to be

proper drainage system and the body parts or the blood of animal,

are required to be treated and not allowed to flow openly so as to

mix with common drains.

FINDINGS :

[71] In the aforesaid backdrop we proceed to consider as

to whether an Act of loud screaming of animals, severing of heads

by sharp cutting ―daos‖ (Ram Dao); flowing of live blood in the

precincts of the temple also all along the drain; handing over the

severed head of slaughtered animal to the priest for chanting

mantras, etc. in the name of sacrifice, perhaps causing serious

panic, touching human conscience and shocking the mind of

certain devotees visiting the temple, is an essential part of religion

or not.

[72] However prior thereto, certain other contentions

need to be dealt with.

[73] Plea with regard to the locus is highly inappropriate

and misplaced. If a retired Judicial Officer, well conversant with

law, having an unblemished career record, would not have a locus,

inviting attention of this Court to the alleged illegality perpetuated

right by and under the nose of the State, then who else would

have.

Page 48 of 72

[74] Similarly, plea of the petition being motivated for

having pursued the agenda of a minority community, to say the

least is preposterous. The State cannot be allowed to take such a

stand, more so, in the absence of any material, substantiating the

same. The issue of animal sacrifice by the minority community

(Muslims) on the occasion of Bakr Id, already stands settled in

Mohd. Hanif Quareshi, Ashutosh Lahiri and Mirzapur(supra)

hence, such plea needs to be repelled at the threshold.

[75] It is a matter of fact and undisputed at that, that

ritual of animal sacrifice of the offerings of the State and by the

devotees is being carried out in the temples managed by the State

in Tripura. Hence, onus to continue with such practice, in the

context of constitutional provisions would rest not upon the

petitioner but the alleged perpetuator of an illegality against an

animal and in violation of the settled principles of law.

[76] The State defends such pernicious and deleterious

action on two grounds; first - ―necessity and authorization in

terms of and by the document of merger‖ and the second - ―the

established long accepted procedure of Hindu rituals of the Tantrik

method of worship of the Dash Maha Vidya‖.

[77] In the advancement of the first plea, we notice the

State not to have placed on record any agreement of merger.

However, it is the petitioner who placed an agreement dated 9th
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September, 1949 entered into between the Governor General of

India and His Highness the Maharaja of Tripura. Noticeably, the

said agreement does not refer to performance of any practice,

custom, tradition, tenets, ceremony or a ritual of animal sacrifice,

within the State of Tripura, much less in the temples highlighted

by the petitioner.

[78] Here only we refer to another document placed by

the State, i.e. the minutes of the meeting dated 18 th June, 1982 in

connection with the management of public places of worship in

Tripura. Even in the said document, we find no reference of ritual,

custom, tradition, tenets or practice of animal sacrifice in the

State of Tripura.

[79] In any event, we are of the considered view that in

the light of N. Adithayan (supra), any custom or usage

irrespective of any proof of their existence in the pre-constitutional

days cannot be construed to be a source of law to claim any right

when it is found to be violative of human rights which, in our

considered view, would also include the right of animal to live with

dignity. Further, no usage found to be pernicious and considered

to be in derogation of law or opposed to public policy or social

decency can be accepted or upheld by the courts under the Indian

Constitution.

[80] Any customs, usages and traditions contrary to the

constitutional spirit, cannot be a source of law. Equally, its
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sanctification has to be as per law. Doctrine, belief or tradition

which is extraneous, redundant accretions to religion, holds no

place to be adhered to in the name of religion, more so in the light

of Article 13 of the Constitution of India which reads as under :

―13. Laws inconsistent with or in derogation
of the fundamental rights -

(1) All laws in force in the territory of India
immediately before the commencement of this
Constitution, in so far as they are inconsistent
with the provisions of this Part, shall, to the
extent of such inconsistency, be void.

(2) The State shall not make any law which takes
away or abridges the rights conferred by this Part
and any law made in contravention of this clause
shall, to the extent of the contravention, be void.

(3) In this article, unless the context otherwise
requires -

(a) ―law‖ includes any Ordinance, order, bye-

                        law,     rule,       regulation,     notification,
custom or usages having in the territory
of India the force of law;

(b) ―laws in force‖ includes laws passed or
made by a Legislature or other
competent authority in the territory of
India before the commencement of this
Constitution and not previously
repealed, notwithstanding that any such
law or any part thereof may not be then
in operation either at all or in particular
areas.

[(4) Nothing in this article shall apply to any
amendment of this Constitution made under
Article 368].‖
Page 51 of 72

And here we may only remind the State what

message Sri Rabindra Nath Tagore conveyed to the then Raja and

this citizenry through his famous work - ―Bishorjan‖.

[81] Insofar as second plea of performance of a ritual

under the Tantrik method of worship is concerned, we find, except

for a bald assertion, the State not to have placed any material on

record. However, we shall deal with this part of the ground a little

later.

[82] Here only we may state that this stage, we are

neither impressed nor inclined to accept the State's plea of

referring the matter for its consideration afresh, after inviting

objections or obtaining material from the general public. Notice in

the petition was issued on 11th April, 2018 and admitted for

hearing on 19th September, 2018. Post admission the matter was

taken up on several occasions and commencing from 8th August,

2019, heard on several times. Having afforded adequate

opportunity, State did file its response through the affidavit of the

Under Secretary to the Government of Tripura, Revenue

Department and as has been observed by R.F. Nariman, J in

Sabarimala (supra), which passage we reproduce hereinafter,

that would suffice the purpose of adjudication of the issues with

which we are concerned:

―31. A fervent plea was made by some of the
counsels for the Respondents that the Court
should not decide this case without any evidence
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being led on both sides. Evidence is very much
there, in the form of the writ petition and the
affidavits that have been filed in the writ
petition, both by the Petitioners as well as by the
Board, and by the Thanthri's affidavit referred to
supra. It must not be forgotten that a writ
petition filed under either Article 32 or Article
226 is itself not merely a pleading, but also
evidence in the form of affidavits that are sworn.

[See Bharat Singh and Ors. v. State of Haryana
and Ors., MANU/SC/0047/1988 : 1988 Supp (2)
SCR 1050 at 1059].‖

[83] No separate notice to general public is required to be

issued for the simple reason that the affairs of management of the

temples are in the hands of the State.

[84] In Jallikattu(supra) while discussing the concept of

humanism and speciesism, the Court observed that every species

has a right to life and security, subject to the law of the land,

which includes depriving its life, out of human necessity. Article

21 of the Constitution, while safeguarding the rights of humans,

protects ―life‖ which expression has been given an expanded

definition of any disturbance from the basic environment which

includes all forms of life, including animal life. The Court

categorically held that "so far as animals are concerned, in our

view, "life" means something more than mere survival or

existence or instrumental value for human-beings, but to lead a

life with some intrinsic worth, honour and dignity........" and that

―Animals' well-being and welfare have been statutorily recognised
Page 53 of 72

and right to live in a healthy and clean atmosphere and right to

get protection from human beings against inflicting unnecessary

pain or suffering is a right guaranteed to the animals

under Sections 3 and 11 of the Prevention Act read with Article

51A(g) of the Constitution. And most importantly ―Right to dignity

and fair treatment is, therefore, not confined to human beings

alone, but to animals as well‖.

[85] The word ―life‖ in Article 21 of the Indian Constitution is

wide enough to include every living organism be it humans,

animals, insects or bird. Deprivation of life has to be as per

procedure established by law. Thus it is pertinent in this regard

that sacrificing of animal and taking away of their life also has to

be in accordance with due process of law. Sacrifice of animal in

the manner and nature with which we are concerned, in the garb

of religion, of which we are of the opinion, is nowhere allowed by

law. Only such practices can avail protection under Article 25(1)

which amounts to an essential and integral part of religion. In

Jallikatu (supra) it stands observed that animals also have life

which also has to be protected under the purview of the said

Article.

[86] The Hon'ble Supreme Court has time and again

reminded that, the provisions in Part IV and Part IVA are to be

given due importance in achieving the constitutional goals. In

Mirzapur (supra), that by enacting Article 51A(g) and giving it a
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status of a fundamental duty, one of the objects sought to be

achieved by the parliament is to ensure that the spirit and

message of Articles 48 and 48A are honored as fundamental duty

of every citizen. Article 51A(g) therefore enjoins that it was a

fundamental duty of every citizen ―to have compassion for living

creatures‖, i.e. concerns for suffering, sympathy, kindliness etc.,

to be read along with the provisions of the Prevention Act.

[87] Apart from rights which are fundamental in nature,

Part IVA of the Indian Constitution casts duty upon every citizen

under Art 51A(g) with a moral obligation to protect and improve

the natural environment including forests, lakes, rivers, and

wildlife, and to have compassion for living creatures. Human owe

a duty to exhibit love and compassion towards animals, with an

empathy and understanding of the sufferings of animals who are

speechless and voiceless. This definitely are signs of a civilized

society. Animals also breathe as humans and are sometimes said

to have the same soul as humans. In our considered view,

sacrifice of an animal, based on superstition or not being an

essential part of practice of religion in a temple is absolutely an

antithesis to compassion.

[88] Article 51A(h) urges every citizen to develop scientific

temper, humanism and spirit of enquiry and reform. Every

individual is duty bound to adopt a rational and logical thinking

and not to be carried away by superfluous religious dogmas. The
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framers of the constitution had the desire to achieve

transformation of society. Duty is casted upon every individual to

participate in bringing social transformation, yielding in

compassion and humanism. Progressive society cannot be

achieved when one is confined to religious dogmas. Also one has

to adopt measures to inculcate scientific temper in a society

ridden with superstitions.

[89] Article 51A(i) further mandates humanism to abjure

violence, which sense of duty would only be against human, but in

ones considered view against every living creature on this earth. A

child witnessing continuous violence towards animals may fail to

inculcate moral values of showing an act of love, kindness and

compassion towards animals. Sacrifice of animals in temples is not

pleasing to the eyes and this inhuman religious practice in the

name of religion has a definite impact on the psyche of a child.

[90] In Hanif Quareshi, Akhil Bharat Goseva Sangh

and Mirzapur(supra) as we have noticed, the Court has observed

that both directive principles and fundamental duties must be kept

in mind while assessing the reasonableness of legal restrictions

placed upon fundamental rights.

[91] We repeat, which religion or community mandates

infliction of unnecessary pain or suffering on an animal? Which

religion prescribes that physical or mental pain or suffering should

not be eliminated in the pre-slaughter stage? Which religion would
Page 56 of 72

want its followers not to treat animal with compassion, care or a

humane approach? And above all, which religion would allow itself

to be shackled to dogma, superstition and unfounded beliefs so as

not to reform and be in tune with the changing times in pursuit of

Constitutional morality.

[92] In considering whether religious practice followed for

more than 500 years forms an essential part of religion, this Court

refers to the document ―Statistical Account of The Hill Tipperah

(Tripura) And Statistical Account of The District of Tipperah (For

belief History) produced by the state before this court. We do not

find textual evidence in it stating that sacrifice of animal is

obligatory in performing puja at the Mata Tripureswari temple. The

text only states that ―in the month of Agrahayan when the winter

paddy is being cut and gathered, a festival is held in honour of the

new wine from the species of paddy called manui, the fermented

product of which is the Hills man favourite drink. During the

celebration of the festival, new rice is eaten and also offered up to

the deities, goats, fowls, and pigs are killed for the entertainment

of guests, and wine is drunk to excess‖.

Further the document mentions that during ker pujas

―pigs and goats‖ are sacrificed in large numbers. However, it does

not state as to whether the sacrifices are made in the temple

and/or as a part of essential practice.

Page 57 of 72

[93] From the text it is evident that sacrifices of humans

were prevalent, but effectually prohibited about 200 years ago. It

is said that the number of victims of human sacrifice till 1407 was

1000 (thousand) per year. It only signifies changing times of the

society towards social reforms by valuing life of humans. Every

religion now condemns human sacrifice and is no longer followed

as a part of rituals. Thus it is only logical that when human

sacrifice could be stopped then nothing can impede a ban on

sacrifice of animals as part of religious practice, for life of both

humans and animals are legally required to be valued and

protected.

[94] Another document ―The imperial Gazetter of India‖

states that the Tipperahs, Jamatiyas, Nowatias and Riangs are all

of the same religion. Their divinities are the gods of fire and

water, of the forest and the earth; and ―sacrifices form an

important part of their religion--buffaloes, pigs, goats, and fowls

being the animals ordinarily used for the purpose. At the present

day, they are showing some symptoms of a tendency to conform

in many respects to the religious observances of the Hindus,

especially with regard to caste. They are superstitious and timid,

but capable of committing great cruelties when their passions are

roused. The Political Agent, writing in 1873 of the Tipperahs, thus

describes the result of their contact with the Bengalis:-‗The people

were very simple, truthful, and honest, until corrupted by the evil

influences arising from closer intercourse with the inhabitants of
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the plains, and also by bad government. ... Every advantage was

taken of their ignorance and credulity, till at length they perceived

this themselves, and they now no longer hesitate to meet decit

with its own weapons.‖

[95] Importance cannot be construed to be an essentiality,

meeting the twin test; being core; inextricably connected with its

fundamental character. Aside the documents as aforementioned

and placed by the state none of the recognized works dealing

with the installation of idol or practices required to be followed in

worship thereof, as argued by the petitioner, has quoted the

reference of any essentiality of carrying out of the ritual of animal

sacrifice. Such works being ‗Pithamala Tantra', ‗Maha Pitha

Nirupan' and ‗Shiva Charita'; The ‗Shakti Pitham' authored by r.

Dinesh Chandra Aakar; ‗Rajmala and the History of Tripura'

authored by Sri Kailash Chandra Singha; ‗Human Sacrifices in

Tripura' authored by Rev. James Long, works of Sir Jadunath

Sarkar and ‗Gazinama' authored by Sheik Manuhar.

[96] Significantly, temple of Devi Tripureswari is one

amongst the 51 shakti pithas. It is believed that the temple was

set up owing to the fact that the right limb of sati fell into the

place where the Mata Tripureswari temple was established.

Practice of sacrificing animal in most other Shakti pithas is not

seen or carried out.

Page 59 of 72

[97] The Mata Tripureswari Temple does not have any

connection with the then Maharajas of Tripura but was founded on

the lineage and linkage of Sati. Thus it will not be wrong in

coming to an unambiguous conclusion that though the sacrifice of

animal in temple was traditionally carried out since 500 years but

there is no scriptural or textual evidence establishing the fact that

the sacrifices of animals in worshipping the deity were prevalent

since time immemorial forming an essential and integral part of

the religion in worshipping the deity and antiquity has no basis for

determination of essential practice.

[98] Applying the principles culled out in Swamiar of

Shirur Mutt, Sardar Syedna Taher, Tilkayet, Acharya

Jagadishwarananda and Durgah Committee as examined and

explained in Sabarimala (supra) (by Hon'ble Dipak Mishra, CJI,

as he then was, Hon'ble R.F. Nariman, J and Hon'ble D.Y.

Chandrachud, J), it cannot be said that the practice of animal

sacrifice is essential to the core of the tenets rituals, ceremonies,

ceremonies, beliefs observances or the practice of religion within

the temple of Mata Tripureswari or other temples managed by the

State within the State of Tripura. Can it be said that if ‗ahuti' of

animal is not offered to Goddess Tripureswari or other Gods or

Goddesses, the religion itself would stand altered. Certainly, the

answer cannot be in the affirmative for the idol is worshiped by

the people belonging to all faiths, beliefs and religion including

Hindus. Testing the argument of sacrifice being core to the
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worship of the said deity/idol, can it be said that after stoppage of

human sacrifice, almost 200 years ago, the deity, temple or the

place, stood defiled having lost its relevance, significance or

importance? or the people having suffered any consequential

wrath as stoppage of such observance? Most certainly not. In fact,

with each passing day, since then its glory, popularity and

influence has ever increased, more so, for it is perceived to be the

place where one of the body parts of Goddess Sati fell. If the sub-

stratum of the ritual of animal sacrifice is taken away, the

ceremony of performance of puja cannot be said to have been

defiled or the right to practice and profess religion, obstructed,

hindered or diminished in any manner.

[99] In the instant case, sacrifice of animal in temples is not

done out of necessity but merely on the unsighted conviction and

credence that such activity would please the deity, who in return

would bestow them with blessings and wellbeing.

[100] Had it been such, that the sacrifice of animal in temple

is mandatory in nature, which remain inseparable from the

tradition and religion being so deeply rooted to the people then

there would have been no occasion of offering prasads with fruits

and sweets to the deity, asides animals by way of sacrifice. Not

every devotee goes on to worship the deity in these temples by

sacrificing animals. Evidently this particular practice by tradition is

merely optional and cannot be figured as an essential and integral
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part of religion. For sacrificing innocent, helpless and voiceless

animals does not conquer constitutional morality. Perhaps, such

practices can only be said to be rooted in fallacy.

[101] The ban on sacrifice of animal in Temples of Mata

Tripureswari Devi Temple, Chaturdash Devata temple or any other

temple either managed by the State or otherwise does not infringe

the fundamental right as enshrined in Part III under Art 25(1) of

the constitution for the reason that such practice is contrary to

constitutional morality and health and this activity carried in the

name of religion is not intended to be protected.

[102] It is only those practices which are fundamental and

removing of which, will change the very foundation of the religion

which is protected under the umbrella of Art 25 (1) of the

Constitution. This practice of sacrifice of animal fails to succeed

the doctrine of ―essential test‖. Hence, Courts are duty bound to

remove such rudimentary practice which holds no value in today's

society to bring in positive reforms for betterment. Disengaging

sacrifice of animal in temple, from the way of worshipping the

Godess will bring no change in the religion.

[103] Devotees are not only restricted to the locals, It also

attracts huge visitors both from within and outside the State

either for the purpose of pilgrimage or tourism. Not every visitor

to this temple believes in such sacrifice of animal in the temple. To

them violence to an open eye would only be abhorrent.
Page 62 of 72

[104] Hinduism includes Buddhist, Sikhs, Jainism and not

every religion of Hinduism considers sacrifice of an animal to be

an integral and essential part of the religion. Buddhist and jains do

not believe in killings as they believe in preaching ―Ahimsa‖- non

violence towards all living beings. Hence it stands contrary to the

view taken by the State where it says that sacrifice of animal is

part and parcel of the religion of Hinduism which involves tantric

method of worship, as, not every sect or follower of religion of

Hinduism follows sacrifice of animals in worshipping the deity.

[105] Major section of the community may believe in

carrying out such practice in the name of religion but

simultaneously, rights of co-religionists must be protected so as

ensure that it does not hurt their sentiments. Rights of all have to

be construed and harmonised as stands explained in Sabarimala

and Tilkayat (supra). Here majoritarian view confined to the

people of the region cannot be allowed to prevail upon the

principle of constitutional morality--an act not sanctified by law,

itself being based on a belief, abhorrent and violent in the

changing times of a civilized society.

[106] It is expected from the courts as the final arbiter of

the Constitution to uphold the cherished principles of the

Constitution and not to be remotely guided by majoritarian view or

popular perception. The Court has to be guided by the conception
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of constitutional morality and not by the societal morality [Navtej

Singh (supra)].

[107] In fact the State should have intervened by bringing in

a legislation to stop "sacrifice of animals in a way deleterious to

the community at large" as stood observed by the Apex Court in

Sardar Syedna (supra).

[108] The State is empowered to regulate secular activities

associated with religious practices. However, State is not entitled

to as such, regulate or indulge in religious practices. What the

state can regulate under Article 25(2)(a) are the activities which

really of an economic , commercial, political or secular in character

though these may be associated with religious practices. [Ratilal

Panachand (supra)]

[109] A question would however arise whether the activity

sought to be regulated is ‗religious' or ‗secular'. This distinction is

important for what is religious cannot be regulated. This again

raises the question whether the activity sought to be regulated is

regarded as an essential and integral part of the religion in

question. If so, it is religious in nature.

[110] In Sardar Syedna(supra) and Tilkayat (supra), the

Hon'ble Apex Court held that the administration of the property by

a religious denomination is placed on a different footing from the

right to manage its own affairs in the matter of religion. The latter
Page 64 of 72

is a fundamental right which no legislature can take away, where

as the former can be regulated by law.

[111] In our considered view, and also taking note of the

constitutional mandate and sanctity, the role of Govt. in regular

activities of Tripureswari temple as other temples is limited, and

aiding the temple with funds to sacrifice one goat each day from

the Govt. money does not fall within the ambit of a secular activity

as provided under Article 25(2)(a) in the Indian Constitution.

[112] State's interference to ban such practices will not in

any way bring any fundamental change to the religion. And it is

the duty of the state to bring changes by eradicating all ill

practices to bring reforms in the society. Instead of participating in

such practices, State should enact a law banning slaughter of

animals in temples as it runs against public order, morality and

health.

[113] Also discontinuing of assistance of state in

slaughtering of one goat in the temple on everyday basis does not

in manner amounts to breach of any agreement of merger.

[114] Unless it being essential, sacrifice of an animal for

religion cannot be considered to be a moral act. All religions call

for compassion and no religion requires killing. Sacrifice of animal

in the temple with which we are concerned, is seriously morally

wrong, for it is an act of illegally taking away of life. Animals are
Page 65 of 72

also made of flesh and blood; they also breathe as humans; and

when hurt suffer pain which would be no less than what humans

suffer. Violence by way of sacrifice of an animal, open to public

gore has a traumatic effect on a viewer, more so innocent and

sensitive minds of grooming children, who in any event are

required to be sensitized.

[115] Religious freedom is subject to health. One cannot

deny the fact that sacrifice of animal in temple does affect mental

and physical health of an individual. It is the duty of a State to

provide legal safeguards to protect individuals' life and to maintain

good health of the community. The blood of the animals are

allowed to flow in the open drains as a result causing foul smells.

Also it gets contaminated in the open drain, resulting into increase

of diseases thus adversely affecting the health of the public at

large, more so the residents of the area. Places of worship are

considered as most sacred, holiest and cleanliest where people

can peacefully connect to its creator. With blood of animals

sprinkled around on the ground and the severed heads of the

animals stocked infront of the deity, the view remains

frighteningly dirty, leaving an impression of deficiency of holiness

and peacefulness.

[116] In State of Karnataka and anr. V. Dr Praveen

Bhai Thogadia (2004) 4 SCC 684 Court observed that the core

of religion is based upon spiritual values, which the Vedas,
Page 66 of 72

Upanishad and Puranas were said to reveal the mankind seem to

be -―Love others, serve others, help ever, hurt never‖ and ―Sarvae

Jana Sukhino Bhavantoo‖. Rig Veda also states ―Behave with

others as you would with yourself. Look upon all the living beings

as your friends, for in all of them there resides one soul. All are

but a part of that universal soul. A person who believes that all

are his soulmates and loves them all alike never feels lonely.

Divine qualities of such a person such as forgiveness, compassion

and service, will make him lovable in the eyes of his associates.

He will experience intense joy throughout his life‖.

[117] Section 28 does not in any way allow sacrifice of

animal in temple. The word ―as required by the religion‖ poses a

question as to when will the religion require to inflict such pain on

the animal? Can it be said that such manner of killing can be

exempted under sec. 28 of PCA Act only when such killing is an

integral and essential part of the religion. Most certainly yes, for

the Prevention Act does not define religion, which in our view

certainly has to be understood in reference to Article 25. Religious

practice based on a tradition cannot have an overriding effect of

the Prevention Act so enacted. With an object of safeguarding the

welfare of the animal and to cure some mischief and old age

practices, so as to bring into effect some type of reform, based on

eco centric principles, recognizing the intrinsic value and worth of

animals. The prevention of cruelty Act is a welfare legislation

which overshadows or overrides the so called traditions.
Page 67 of 72

[118] Mahatma Gandhi once rightly said ―the greatness of a

nation is judged by the way it treats its animal‖. Co-existence and

tolerance, the very spirit of ancient thought in the scriptures of

taking care of and look upon all living beings as friends, "for in all

of them there resides one soul. All are but a part of that universal

soul" as what we are reminded of as held in A.S. Narayana

Deekshitulu (supra).

[119] The animals have basic rights and we have to

recognise and protect them. The animal and bird breath like us.

They are also creation of God. They have also a right to live in

harmony with human beings and the nature. Animal sacrifice is

one of the most diabolical form of cruelty inflicted on animal can

be no rationalization behind sacrificing animals in full public view

and several time it has been seen that untrained and unskilled

butchers give blows to animals. Many a times the animal is not

even killed in one blow, thereby leaving the animal smock and in

extreme pain and suffering.

[120] Bodies constituted pursuant to Gauri Maulekhi

(supra), have failed to fulfil its role, obligation and constitutional

mandate of promoting health, safety and general welfare of the

animals.

In view of the aforesaid discussion, we answer the

questions.

Page 68 of 72

[121] ―Whether act of the State in offering an animal

for sacrifice in the Temples in Tripura, can be said to be a

secular activity and as to whether prohibiting the same

would infringe the fundamental right, as envisaged under

Article 25(1) of the Constitution of India?‖

In our considered view, the State by an enactment

can only regulate or restrict any economic, financial, political or

secular activity which may be associated with a religious practice.

The role of the Government in regular activities of the temple is

limited to such religious activities which are secular in nature. Act

of the State of offering one goat every day, for a sacrifice in the

Mata Tripureswari temple and other temples on certain occasions,

lacks the essence of economic, commercial, political or secular

character and hence, the action of the State in offering such an

animal for sacrifice is neither permissible under the Indian

Constitution nor any statute.

The right of offering an animal for sacrifice is not an

integral and essential part of the religion, protected under Article

25(1) of the Constitution. As such, no right of the freedom of

professing any religion by the State can be said to have been

violated. State has no religion other than constitutionalism and the

expression ‗person' under Article 25 has to be in reference to

natural person (Sabarimala). Withdrawal of such practice would

not tantamount to any change, fundamental in character of the

religion.

Page 69 of 72

[122] "Whether the age long practice of 500 years of

sacrificing animals, after stoppage of practice of human

sacrifice, in Tripureswari Devi Temple, Udaipur, Gomati

District, Tripura can be construed as an essential and

integral part of religion, as protected under Article 25(1) of

Constitution of India?

The age long practice of a sacrifice of animal, either

by the State or by an individual, cannot be said to be an essential

part of the religion and as such, is not protected under Article

25(1) for it being against the principle/doctrine of morality and

health, as also provisions of the Prevention of Cruelty to Animal

Act, 1960.

Right to freedom of religion is subject to the rigours of

public order, morality, health and the other provisions of Part-III.

Sacrifice of an animal in a temple, not being an essential part of

religion, is also violative of Article 21 of the Constitution of India.

[123] "Whether a religious practice based on a ritual,

custom, tenet, tradition, not being an essential part of

religion, can be allowed to continue notwithstanding the

provisions of the Prevention of Cruelty to Animals Act, 1960

and Article 21(Part - III) Article 48, 48A and 51A(g)

(Part IVA) of the Constitution of India?"

In our view, Constitutional values are to be embraced

and not to be superseded by personal beliefs. Religious practice,
Page 70 of 72

not being an integral and essential part of religion cannot override

the provisions, specifically Section 3 of Prevention of Cruelty to

Animal Act and other provisions of Part III, Part IV and Part IVA of

the Constitution. Section 28 of the Prevention Act merely makes

killing for a religious purpose not a punishable crime and more so

in the light of the Article 25 does not make it permissible to

commit such acts in the temple. Section 28 of the Prevention Act

has to be interpreted in the light of Article 21, 48, 48A, 51A(g),

51A(h) and 51(A)(i) of the Constitution.

Questions of law are thus answered accordingly.

[124] Having held thus, we allow the petition by issuing the

following mandatory directions, prohibiting and banning

animal/birds sacrifice in the temples :

(a) No person including the State shall be allowed to
sacrifice of any animal/bird within the precincts of
any one of the temples within the State of
Tripura;

(b) No person shall sacrifice such animal within the
precincts of any of the temples within the State of
Tripura;

(c) Government of Tripura has proposed development
of Devi Tripuresrwari temple as a favourite
international tourist destination. People of all
beliefs and faiths are likely to visit in large
number. Anyone of the devotees desirous of
offering any animal out of personal faith, belief or
desire, may do so, but, shall take back the animal
Page 71 of 72

and under no circumstance any activity of animal
sacrifice shall be permitted to be carried out.
Prudently, the Government can earmark land for
opening shelter home for rearing such livestock.

(d) The District Magistrate Collectors of the
respective districts and more specifically, District
Magistrate Collector, Gomati District, Udaipur as
also District Magistrate Collector, West Tripura
District, Agartala under whose jurisdictions Devi
Tripureswari temple and Chatur Das Devata
temple are situate, respectively, shall forthwith
take action for ensuring implementation of the
orders; The Superintendent of Police of all the
districts shall also ensure strict implementation of
the order. Such officers shall be personally liable
for implementing the orders;

(e) The Chief Secretary, Government of Tripura shall
also ensure compliance of the order. Also he shall
ensure that at least in two temples i.e Devi
Tripureswari temple and Chatur Das Devata
temple in Tripura, where act of animal sacrifice is
carried out profusely, CC TV cameras are installed
forthwith; every month he shall have a soft copy
of such video recording placed on this file;

(f) Such video recording of the temple(s) shall form
part of record of the present petition and shall be
constituted as part of the record of the appeal
preferred, if any, by any person, including the
State;

(g) District Magistrate Collectors of all the districts
shall initiate all measures of educating and
sensitizing the general public of the constitutional
Page 72 of 72

mandate and its importance, relevance and
significance, more so, of adopting an attitude of
love, humanism and compassion towards all
animals/birds;

(h) The State Government shall give due publicity
and also sensitize the general public of the
constitutional values and passing of the order and
implementation thereof.

      (ARINDAM LODH), J.                          (SANJAY KAROL), CJ.

Sukhendu/Pulak.

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