When Uttar Pradesh Chief Minister Yogi Adityanath announced on Monday, 31 August, that the sale of meat would be banned in Mathura, he would not have expected much popular resistance.
Indeed, while there are reports that local traders are concerned about the impact this will have on their livelihood, such reactions are, at this point at least, muted.
However, regardless of whether there is an outcry against the decision by the UP government, or not, a move of this sort has to have some sort of legal basis, given its effect on those engaged in the sale of meat, directly and indirectly, as well as those who consume it.
While the chief minister blithely said at the announcement of the ban that those who were engaged in these trades till now could sell milk instead, that's not how a constitutional democracy works, where citizens have a fundamental right to freely practice any profession or trade.
Or where citizens have a right to freedom of expression and personal liberty which also encompass their food choices.
So does the UP government have some sort of legal ace up their sleeve that makes this meat ban possible?
NOTE: The new ban by the government also covers the sale of liquor in Mathura, but the legal questions over the prohibition of alcohol are slightly different. There may be some developments on this front from the Gujarat High Court which is currently hearing a petition against liquor prohibition in the state, but are not the subject of this article.
Supreme Court's 2004 Judgment on Egg Ban in Rishikesh
It is likely that the UP government, if faced with a legal challenge to its Mathura meat ban, will point to a judgment of the Supreme Court of India in Om Prakash vs State of UP to back itself up.
In 2004, the apex court heard an appeal by some hotel/restaurant owners against the new bye laws introduced by the Rishikesh Municipal Board, which covers Rishikesh, Haridwar and Muni ki Reti, which made the sale of eggs illegal in these three Uttarakhand towns.
The appellants claimed that this was a violation of their right to freely practice any profession or trade under Article 19(1)(g) of the Constitution, but the Allahabad High Court had said the ban fell within the reasonable restrictions on this fundamental right, as specified in Article 19(6).
The Supreme Court dismissed the appeal, with one of the judges, Justice DM Dharmadhikari, providing details of why the ban did not violate the right to profession/trade.
"This right can be restricted under Article 19(6) only by law and on such reasonable grounds which are found to be in the interest of general public," Justice Dharmadhikari noted at the outset.
In his view, these requirements were met by the egg ban because
The Fundamental Duties under Article 51-A of the Constitution include duties to promote harmony among all sections of society and to "preserve the rich heritage of our composite culture"
The three towns were pilgrimage sites and the decision to impose the ban had been taken "in deference to the religious and cultural demands of large number of residents and pilgrims who visit regularly and periodically on auspicious and festive days to the three towns."
There had been longstanding bans against the sale of any meat or fish in these three towns already – in Haridwar since 1956 – and so this was not some new change in culture.
Justice Dharmadhikari also dismissed the concerns of those who had challenged the egg ban because they were not large in number, saying:
"The appellants who are running hotels and restaurants and others like them constitute comparatively a very small section of the society engaged in carrying on trade of non-vegetarian food items in the town."
But Would This Judgment Apply to the Mathura Meat Ban?
It is clear from Justice Dharmadhikari's opinion that the ban on sale of eggs in Rishikesh wouldn't justify similar bans everywhere.
"Geographical situation and peculiar culture of the three towns justify complete restriction on trade and public dealing in non-vegetarian food items including eggs within the municipal limits of the towns," the judge explained.
While it will no doubt be argued that Mathura also has a similar 'peculiar culture' which discourages the eating of non-vegetarian food, the facts are not likely to back this up.
There are reportedly 45 registered meat sellers in the city, and 50 of the 300 hotels and restaurants in Mathura serve non-vegetarian food, National Restaurants Association of India member Ankit Bansal told the Times of India. In comparison, as noted by the Supreme Court, there had been a ban on meat and fish in Rishikesh et al for many decades.
While Yogi Adityanath did impose meat and fish bans in certain parts of Mathura after coming to power in 2017, these were only imposed at specific pilgrimage sites such as Vrindavan and Barsana.
Demographics would also suggest that the situation in Mathura is not comparable, regardless of its religious significance for Hindus.
Over 17 percent of the population of the Mathura metropolitan region is Muslim, according to 2011 census data, a significant number of which are likely to be non-vegetarian. Nearly 12 percent are Dalits, again, of whom a significant number are likely to be non-vegetarian.
In a city where there does not in fact appear to be a similar 'peculiar culture', it is difficult to see how a total meat ban would be considered a reasonable restriction on the rights of those selling meat (butchers or restaurants). Remember that this is a total ban on any forms of non-vegetarian food, not just on beef.
Take for example how the Supreme Court in 2008 allowed the closing of slaughterhouses in Ahmedabad during the Jain observance of paryushan because it was only for a limited period of nine days.
Would the 2004 Judgment be Good Law Today?
Setting aside the factual distinctions, there are other reasons that the Supreme Court's Rishikesh decision wouldn't necessarily help justify the ban on meat in Mathura.
First off, that judgment only addresses whether such a ban would be a violation of the right to freely practice a profession/trade. It does not address arguments that this kind of blanket restriction affects the choices of those who eat meat, violating their right to freedom of expression, and indeed their right to privacy.
The argument on the right to privacy has only become stronger since the Supreme Court's 2017 judgment in the Puttaswamy case, where a nine-judge bench unanimously affirmed that privacy was a fundamental right. This includes decisional autonomy, with the choice of what one eats an integral part of it.
Even before this, in the case about Ahmedabad slaughterhouse closures for instance, the court had held that "What one eats is one's personal affair and it is a part of his right to privacy which is included in Article 21 of our Constitution".
If there was some doubt over the contours of this right back in 2004, such doubt can no longer be said to exist today after the Puttaswamy case.
Even if we look purely at the right to practice a profession/trade, there are grounds to argue that the 2004 decision got it wrong. As noted earlier, one of the points noted by Justice Dharmadhikari back then was that this was a demand by a very small section of society.
To eat meat or not is an individual’s decision, food choices shouldn’t be politicised in India.
(Photo: iStock/ Altered by The Quint)
This may sound familiar to those who remember the notorious Suresh Koushal judgment of the Supreme Court in 2013, which re-criminalised consensual homosexual acts under Section 377 of the IPC, infamously saying that only a "minuscule fraction" of the population had been affected by it.
This argument was roundly rejected by a Constitution Bench of the Supreme Court in the Navtej Johar case in 2018, when it struck down Koushal. The judges clearly held that if a law violates the fundamental rights of citizens, it doesn't matter how many are affected, or what the social mores of the majority say.
As Justice Nariman's opinion there clarified:
"These fundamental rights do not depend on the outcome of elections. And it is not left to majoritarian governments to prescribe what shall be orthodox in matters concerning social morality... Constitutional morality always trumps any imposition of a particular view of social morality by shifting and different majoritarian regimes."
One can only hope that before populist decisions like the Mathura meat ban are made by the Yogi government, they actually apply their minds to these legal issues and seek opinions from their law ministry on the legalities involved.
In the present case, it does appear that the legal basis of this ban is unsound – but owing to the lack of 'popular' (for whatever reason) or political opposition to it, thinking about the law is likely to be left to the courts.
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