“Constitutionality of Animal Sacrifice in India: A Critical Analysis in the light of Sri Subhas Bhattacharjee v. State of Tripura (2019)”
Authored By: Akash Singh
LL.M. Student At National Law University And Judicial Academy, Assam
B.A. LL.B. Hons. From Dr. Ram Manohar National Law University, Lucknow
There has been a remarkable development in the legal sphere of Indian ‘animal jurisprudence’ in the landmark case of Sri Subhas Bhattacharjee v. State of Tripura (2019). In this case, the Tripura High Court banned animal and birds sacrifices, which were performed in the temples of Tripura. The pace of jurisprudential growth of animal rights in India is tedious, which is evident from the very fact that there are very few judgments of the Supreme Court on this topic. Therefore, this case becomes extremely significant as it attempts to resolve grey areas regarding the legality of animal sacrifices in India.
In my opinion, the judgment is a leading one in three aspects. Firstly, a wide interpretation has been used by the High Court, through which an animal has been recognised as a “person” under Article 21 of the Constitution of India. This results in the extension of the inalienable fundamental rights to animals as well. Secondly, the High Court held that Animal Sacrifice is not an essential practice of Religion and it amounts to animal cruelty. Thirdly, it has been righty been pointed out that “the Court has to be guided by the conception of constitutional morality and not by the societal morality.”
Animal sacrifice has been practised in India, since time immemorial. However, the recent progress in animal jurisprudence has turned the tables and there has been a strong opposition against this practice of ‘animal cruelty.’ This paper delves deeper into the legal framework of animal sacrifice in India, its constitutionality, with the special case study on Sri Subhas Bhattacharjee v. State of Tripura (2019), which sets a milestone on this topic.
Evolution Of Laws Against Animal Sacrifices In India
The Indian Penal Code, 1860, which despite being a colonial statute has survived to become an important legislation dealing with the substantive criminal law in India. Section 47 of the IPC defines an animal as “any living creature, other than a human being.” Under Section 428 and 429 of the IPC, “mischief by killing or maiming animals” has been made an offence, which is punishable for a term upto 2 years or fine or both. However, it has to be noted that in these two provisions, animals have been assigned monetary values, which reflects that they have been viewed as mere property of their owners.
The Constitution of India is an extremely dynamic and revolutionary document, which incorporates the concept of protection of animals against cruelty. It was amended through Constitution (42nd Amendment) Act, 1976, which inserted a new provision, i.e., Article 48A. Article 48A is a Directive Principle of State policy, which puts an obligation on the State “to protect and improve the environment and to safeguard the forests and wild life of the country.” Also, under Article 51A(g), it is the fundamental duty of the Indian Citizens “to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.” It is an interesting point to consider whether “person” used under Part III of the Constitution could be construed in such a manner to include “animals” within its ambit or not. If it is interpreted in affirmative, then important fundamental rights, like ‘right to life and personal liberty’ under Article 21 would be guaranteed to animals as well. This debated issue has been addressed later in the paper.
Under Article 246 (2), both the Parliament and the State Legislatures have been empowered to make laws on the matters listed in List III, i.e., Concurrent List of the Seventh Schedule. Two such subject matters are relevant. Entry 17 and Entry 17B of the Concurrent List deal with “Prevention of cruelty to animals” and “Protection of wild animals and birds” respectively. This legislative power has been used to enact various Central State legislations to prohibit animal cruelty in India.
In 1950, Andhra Pradesh became the first State in India to pass a legislation to “prohibit the sacrifice of animals and birds in, or in the precincts of any place of public religious worship or adoration and in any congregation or procession connected with religious worship in the State of
Andhra Pradesh.” The Andhra Pradesh Animals and Birds Sacrifices Prohibition Act,1950, was the first legislation post-independence, which prohibited animal and birds sacrifices in the erstwhile State of Andhra Pradesh and also penalized it, making it a ‘cognizable offence.’ In 2014, after its bifurcation, which led to the formation of the State of Telangana, this Act was “adapted to the State of Telangana” as well. Similarly, other States and Union Territories also came up with animal sacrifice prohibition laws- Karnataka (1959), Puducherry (1965), Kerala (1968), Gujarat (1972) and Rajasthan (1975).
In these State animal sacrifice prohibition laws, the term “sacrifice” has been defined in the following manner:
“Killing or maiming of any animal or bird for the purpose of any religious worship or adoration.” 
“The killing or maiming of any animal or bird for the purpose or with the intention, of propitiating any deity.”
“Killing or mutilating an animal or a bird with the intention or for the purpose, of pleasing a deity or a God.”
Thus, it is very clear that various State legislations have been framed to prohibit and punish animal and bird sacrifices in the places of worship as they are viewed as acts of animal cruelty.
The Prevention of Cruelty to Animals Act, 1960, which is a primary Central legislation of animal welfare, which aims to lay down the “law relating to the prevention of cruelty to animals.” Section 11 of the Act enumerates various acts which constitute cruelty to animals and penalizes the persons committing them. It includes acts like subjecting an animal to “unnecessary pain or suffering”, administration of “any injurious drug or injurious substance to any animal” and abandoning any animal “in circumstances which render it likely that it will suffer pain by reason of starvation or thirst.  The Act neither defines nor mentions “animal sacrifice” in its text. However, the horizon of the term of ‘animal cruelty’ is so vast that it would include killing of animals for religious purpose and thus, animal sacrifice should have been be included within the ambit of animal cruelty envisioned by the Act. But the Act adds a ‘saving clause’ to it and carves out an exception under Section 28, which states that “Nothing contained in this Act shall render it an offence to kill any animal in a manner required by the religion of any community.” Therefore, it is clear that the Prevention of Cruelty to Animals Act, 1960, does not apply to animal sacrifices as it would come under the exception prescribed under Section 28 and would not amount to ‘animal cruelty’. Animal sacrifice would also not attract any penalty.
JUDICIAL DEVELOPMENT IN THE CASE OF Sri Subhas Bhattacharjee V. State Of Tripura (2019):
Facts: A public interest petition was filed under Article 226 of the Constitution by Sri Subhas Bhattacharjee, a retired judicial officer, before the High Court of Tripura. The PIL challenged the practice of sacrifice of animals before Gods and Goddesses at two temples of Tripura- Mata Tripureswari Devi Temple and Chatur Das Devata Temple. It was argued by the petitioner that these sacrifices of innocent animals were illegal, unconstitutional and should be banned.
On the other hand, the State of Tripura contended that animal sacrifice, being an ‘integral and essential part of practice of tenets’ of the temples in State of Tripura cannot be stopped.
The main issues before the High Court were:
Whether the ancient practice of sacrificing animals, after stoppage of practice of human sacrifice, in temples can be construed as an essential and integral part of religion, as protected under Article 25(1) of the Constitution of India?
Whether a religious practice 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 Part III and Part IVA of the Constitution of India?
The judgment was delivered by a Division Bench comprising Sanjay Karol, C.J. and Arindam Lodh, J. It was held that Sacrifice of an animal in a temple is unconstitutional as it not an essential part of religion. It is not protected under Article 25(1) for it being against the doctrine of morality and health. It also contravened the provisions of the Prevention of Cruelty to Animal Act, 1960. The Court issued mandatory directions for prohibiting and banning animal/birds sacrifice in the temples of the State of Tripura.
Whether the age long practice of sacrificing animals, after stoppage of practice of human sacrifice, in temples can be construed as an “essential and integral part of religion”, as protected under Article 25(1) of the Constitution of India?
The Court cited the relevant Constitutional provisions. And analyzed the issue through the Constitutional lens. It was pointed out that although “right to freedom of religion” has been guaranteed as an enforceable fundamental right under Article 25(1), it is not an absolute right as it is subjected to four “reasonable restrictions” of: “public order", “morality”, “health” and “other provisions of Part III of the Constitution.”
The Court also held that not every religious practice can be safeguarded by Article 25, and “only those practices which are ‘integral and essential part of the religion’ are safeguarded.”
In 2004, the Supreme Court of India, in the case of Commissioner of Police v. Acharya Jagadishwarananda Avadhutaexplained as to what would constitute an essential integral part or practice of the religion:
“Essential part of a religion means the core beliefs upon which a religion is founded. It is upon the cornerstone of essential parts or practices the superstructure of religion is built. Without which, a religion will be no religion.” Furthermore, the “test of essential part of religion” was also laid down:
“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.”
In the present case, the Court did not find scriptural or textual evidence, which could establish the fact that the sacrifices of animals in worshipping formed an ‘essential and integral part of the religion’. On analysis of textual sources, it was found that sacrifices of humans were prevalent, but effectually prohibited. The Court concluded 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.”
The court further reasoned: “For sacrificing innocent, helpless and voiceless animals does not conquer constitutional morality.” It relied on the landmark case of Navtej Singh Johar v. Union of India, where it was held that “the Court has to be guided by the conception of constitutional morality and not by the societal morality”. Hence, the practice of sacrifice of animal failed to pass the “doctrine of essential test” as withdrawal of such practice would not tantamount to any change, fundamental in character of the religion.
Whether a religious practice 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 Part III and Part IVA of the Constitution of India?
The Court held that if a religious practice is not an integral and essential part of religion, it cannot override the provisions of Prevention of Cruelty to Animal Act and other provisions of Part III, Part IV and Part IVA of the Constitution. The explanation of the Court can be studied in the following manner:
THE CONSTITUTION OF INDIA:
Article 21 guarantees right to life to all “persons”. Animal Welfare Board of India v. A Nagaraja, (popularly called ‘Jallikattu Case’) extended ‘right to life’ to all living beings including animals. Hence, the life of an animal cannot be deprived, save and except, in accordance with the procedure established by law, which must be “just, fair and reasonable.” The Court concluded that in the present case, sacrifice of animal is in the garb of religion, which is not allowed in law. Only such practices can avail protection under Article 25(1) which amounts to an essential and integral part of religion.
Under Part IV of the Constitution Article 48 directs the State to endeavour to organise agriculture and animal husbandry and Article 48A provides for the State to protect and improve the environment and to safeguard the forests and wild life of the country. Under Part IVA, Article 51A(g) makes it a fundamental duty of every Indian citizen to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have “compassion for living creatures.” The Court relied on Minerva Mills Ltd. v. Union of India, to harmonise Fundamental Rights and Directive Principles by importing the Directive Principles in the construction of the Fundamental Rights. Therefore, the Court came to the conclusion that:
“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.”
THE PREVENTION OF CRUELTY TO ANIMALS ACT, 1960:
Section 3 of the PCA, 1960, 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.
However, Section 28 carves out an exception – “Nothing contained in this Act shall render it an offence to kill any animal in a manner required by the religion of any community.” The Court was of the opinion that Section 28 did not permit sacrifice of animal in temple and such manner of killing can be exempted under Section 28 only when such killing is an ‘integral and essential part of the religion.’ As there is no definition of ‘religion’ under Section 28 of the PCA Act, it has to be understood in reference to the meaning of ‘religion’ under Article 25 of the Indian Constitution.
The Constitutional Validity Of Animal Sacrifices In India
If we carefully analyse the scheme of the Constitution of India, it can be inferred that it is in the support of animal rights. If the validity of Animal Sacrifice is tested upon the touchstone of the Constitution, it has to be declared as unconstitutional and illegal.
Recognition of animals as ‘persons’ and conferring them fundamental rights:
Since antiquity, animals have been perceived as objects and properties, but lately this outlook is being re-examined. Unless animals are legally recognized as persons they cannot be entrusted with rights and obligations. The legal framework of conferring personhood to animals is evolving globally. In 2021, for the very first time in the United States, the U.S. District Court for the Southern District of Ohio had recognized ‘hippos’ as legal persons, and as plaintiffs, they were admitted as “interested persons” under the U.S. Code. In 2022, Ecuador became the first country in the world to give legal rights to wild animals. In the famous “Estrellita Monkey Case”, the Constitutional Court of Ecuador delivered a milestone ruling, which set a global benchmark in recognizing the rights of animals. It was held that displacing the monkey by the Government and the owner had violated the rights of the monkey. In 2008, Ecuador had also become the first country to incorporate “Rights of Nature” in its Constitution.
Chapter 7, titled ‘Rights of Nature’ (Article 71-74) of the Constitution of Ecuador (2008), entails the rights Nature, or “Pacha Mama” and the obligation of the State to “protect nature.”
As far as India is concerned, unlike Ecuador, there is no fundamental right of protection of nature. Nevertheless, the scope of Article 21 is so wide that through judicial activism, the Supreme Court of India has expanded its horizon by declaring “right to life” to include “right to live in a clean and pollution free environment.” But the main issue is whether the “right to life” guaranteed to all “person” includes animals or not. As the phrase is subject to judicial interpretation, we have to consider various judicial pronouncements in this regard. In the landmark case of Animal Welfare Board of India v. A Nagaraja and Ors., (Jallikattu Case), the Supreme Court stated that the ‘right to life’ extends to all living beings including animal life. They are also entitled to “lead a life with some intrinsic worth, honour and dignity.” Under the Prevention of Cruelty to Animals Act, 1960, there has been statutory recognition of rights of animals like tight to live in a healthy and clean atmosphere Right to get food, and right to get protection from human beings against inflicting unnecessary pain or suffering. The Court remarked that “Right to dignity and fair treatment is, therefore, not confined to human beings alone, but to animals as well.” The Court held that Bulls could not be used in the Jallikattu events and Bullock- cart Races as it amounted to infliction of unnecessary pain or suffering on them and violated their rights guaranteed under Section 3 and 11 of the PCA Act. The apex Court of India thus recognized “right to life” of animals.
In 2019, in the case of Karnail Singh v. State of Haryana, the Punjab and Haryana High Court declared the “entire animal kingdom as legal entities having a distinct persona with corresponding rights, duties and liabilities of a living person.” Justice Rajiv Sharma remarked that “the animals cannot be treated as objects or property.” Similarly, animal and bird sacrifices in places of worship were held to be unconstitutional for violating the ‘right to life’ of animals and birds in the cases of Sri Subhas Bhattacharjee v. State of Tripura  and Muraleedharan T. v. State of Kerala.
In my opinion, the ‘person’ under Indian Constitution cannot be construed in a restricted manner and should include ‘animals’ within its ambit. They should also be conferred important rights like ‘right to live dignity’ and be protected from exploitation and trafficking. Animal sacrifice is a form of animal cruelty, which violates the right to life of animals. The Indian Constitution has been drafted in such a manner that it gives due respect to the environment and mandates “compassion for living creatures.” Similarly, the animal welfare legislation (the PCA, 1960) has been enacted to penalize animal cruelty. The legal framework has been further expanded by the Indian Judiciary, which has ruled against animal sacrifices.
The Debate of Public Morality and Constitutional Morality vis-à-vis Article 25 of Indian Constitution:
While interpreting the validity of animal sacrifices in the light of Article 25, we have to consider two arguments.
Firstly, animal sacrifices do not constitute “essential part of the religion” as without practicing these sacrifices, the fundamental character of the religion will not be altered. The Supreme Court has enumerated through various pronouncements of the practices, which do not amount to ‘essential religious practices’ under Article 25. It includes the sacrifice of a cow on the occasion of Bakrid day, appointment of only Brahmins as pujari in temples, “the practice of triple talaq”, and “excluding women to enter Sabrimala.” Animal sacrifices also falls under this category and should be banned, considering that they are neither essential for any religion nor justified. Also, banning of animal sacrifices is a “reasonable restriction” as animal sacrifices are violative of Article 21, which falls under Part III of the Constitution.
Secondly, the banning of animal sacrifices can be justified on the ground of being a reasonable restriction on the ground of “morality” specified under Article 25 (1). “Morality” has nowhere defined in the Constitution, and this vacuum has been filled by the Supreme Court of India.
In the case of Indian Young Lawyers Association v. State of Kerala (‘Sabarimala Case’), the issue before the Court was whether restricting women of age group of 10 to 50 from offering their prayers at the Sabarimala temple was valid or not. Holding the ban to be unconstitutional the Court remarked that “Existing structures of social discrimination must be evaluated through the prism of constitutional morality… public morality must yield to constitutional morality.”
Hon'ble Dipak Mishra, defined ‘morality’ under Article 25 (1) as:
“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 appositely understood as being synonymous with constitutional morality.”
In the recent landmark case of Navtej Singh Johar v. Union of India , the Supreme Court read down Section 377 of the Indian Penal Code and held that:
“Constitutional morality cannot be martyred at the altar of social morality and it is only constitutional morality that can be allowed to permeate into the Rule of Law. The veil of social morality cannot be used to violate fundamental rights of even a single individual, for the foundation of constitutional morality rests upon the recognition of diversity that pervades the society.”
Emphasising on the role of the Courts, it was observed that:
“…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.”
In the light of these two cases, the position of the Supreme Court of India is very clear that the term ‘morality’ used in Part III of the Constitutional has to be interpreted in the light of Constitutional
Morality and not by the majoritarian morality or by religious beliefs. It can be argued that even if majority views animals sacrifice as important part and parcel of their religious practices, the Courts cannot interpret it this manner; they have to consider whether it stands the test of Constitutional morality or not. Indian Constitution is founded on the guiding principles of equality, justice and dignified life. Animal sacrifices, as they violate these Constitutional precepts cannot be allowed and should be declared unconstitutional.
Deletion of Section 28 of the Prevention of Cruelty to Animals Act, 1960:
Section 28 of the PCA Act, 1960, which carves out an exception that “Nothing contained in this Act shall render it an offence to kill any animal in a manner required by the religion of any community” is unfair, unjust and arbitrary. It is against the very objective of the legislation, which is “prevention of cruelty to animals.” In the garb of religion, cruelty to animals cannot be permitted. Thus, it is against the very purpose for which the Statute was framed. Also, it is unconstitutional as it does not stand the test of “just, fair and reasonable” and violates Article 21 of the Indian Constitution. As held in Animal Welfare Board of India v. A Nagaraja “life” includes ‘animal life’ and their rights need to be protected. There have been various State legislations that ban and penalize animal sacrifices in the places of worship. The Prevention of Cruelty to Animals Act, 1960, should be amended and Section 28 should be deleted from the Statute. The Supreme Court can also play an important role in striking down this provision from the statute book.
A Central Law on “Prohibition of Animal Sacrifices” to be enacted:
The need of the hour is to enact a comprehensive Central legislation, which prohibits animal sacrifices, on the lines of State Legislations like Karnataka, Kerala, Gujarat and Rajasthan. The legislation should be secular in nature, with no exceptions, banning ‘Animal sacrifices’ throughout India. Also, heavy penalties should be prescribed to act as deterrent against these horrendous practices. For framing a proper draft of the Act, proper consultation should be made with important stakeholders.
Framing a National Policy:
The Union Government should frame a comprehensive Policy against Animal Sacrifice in India. It should take important measures like identifying areas where animal sacrifices take place, steps to reduce the incidents, initiating talks with the religious leaders and educating the masses. Various ‘Animal Sheter Homes’ should be constructed at District levels, so that the rescued animals are protected and not exploited. Technology can be used to spread awareness about the Policy. Proper data should be collected on the animal sacrifice incidents every year so that the progress could be assessed.
Awareness and Education:
The people should be made aware about their Fundamental Duty to have compassion for animals. Religious leaders should spread the message that no religion permits killing of animals. The School Curriculum should introduce Animal Protection laws, so that it is imbibed in young minds to protect animals. The Non-Government Organizations and Media should take the initiative of spreading awareness about the issue.
Globally, there has been a drastic shift in the legal approach in viewing animals: their rights are being recognized instead of perceiving them as ‘objects.’ Ecuador has become the first country in the world to confer legal rights to animals and this is a game changer for the world.
Animal Sacrifices in India in the garb of religious traditions have been practiced since a long time in India. In India, there are various State legislations which prohibit animal sacrifices in public places. At the Central level, the Prevention of Cruelty to Animals, 1960, is an important animal welfare legislation. However, Section 28 of this Act is problematic as it carves out on exception and permits killing of animals on the ground of religion. The Indian Constitution is a revolutionary document, which mandates for “compassion for living creatures.” The Supreme Court in the landmark case of Animal Welfare Board of India v. A Nagaraja has expanded the scope of Article 21 of the Indian Constitution and held that animals should also be guaranteed the ‘right to a dignified life’. Animal sacrifices do not pass the test of ‘essential religious practice’ and banning them is a ‘reasonable restriction’ on the ground of ‘morality’ laid down under Article 25 (1) of the Constitution. The Supreme Court has recently upheld that Constitutional morality prevails over Societal morality. In my opinion, animal Sacrifice in India is unconstitutional, arbitrary, and immoral as constitutional morality, which guarantees right to life to animals under Article 21 prevails over public morality.
Remarkably, the case of Sri Subhas Bhattacharjee v. State of Tripura (2019) is a relevant case study where the animal sacrifices in temples were held to be illegal and unconstitutional. The Chief Justice of Tripura High Court has rightly raised an important question: “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?” Thus, it is necessary that a Central legislation should be passed to prohibit and penalize animal sacrifices in India and a National policy should be framed in this regard. Justice for animals can only be rightly delivered if the public accepts this reform and brings into reality its Constitutional duty of “compassion for living creatures.”
The Indian Penal Code, 1860
The Constitution of India, 1950
The Andhra Pradesh Animals and Birds Sacrifices Prohibition Act, 1950
The Telangana Animals and Birds Sacrifices Prohibition Act, 1950
The Karnataka Prevention of Animal Sacrifices Act, 1959
The Prevention of Cruelty to Animals Act, 1960
The Puducherry Animals and Birds Sacrifices Prohibition Act, 1965
The Kerala Animals and Birds Sacrifices Prohibition Act, 1968
The Gujarat Animals and Birds Sacrifices (Prohibition) Act, 1972
The Rajasthan Animals and Birds Sacrifice (Prohibition) Act, 1975
Animal Welfare Board of India v. A Nagaraja and Ors.
Commissioner of Police v. Acharya Jagadishwarananda Avadhuta
Indian Young Lawyers Association & others v. State of Kerala
Karnail Singh v. State of Haryana
Maneka Gandhi v. Union of India
Minerva Mills Ltd. v. Union of India
Mohd. Hanif Quareshi v. State of Bihar
Muraleedharan T. v. State of Kerala
Navtej Singh Johar v. Union of India
Shayara Bano v. Union of India
Subhas Bhattacharjee v. State of Tripura
T.N. Godavarman Thirumulpad v. Union of India
Animal Legal Defense Fund, Animals Recognized as Legal Persons for the First Time in U.S. Court, ANIMAL LEGAL DEFENSE FUND (Oct. 20, 2021), https://aldf.org/article/animals-recognized-as-legal-persons-for-the-first-time-in-u-s-court/#:~:text=WASHINGTON%2C%20D.C.%20%E2%80%94%20Today%2C%20the,time%20in%20the%20United%20States.
Olivia Lai, Ecuador Becomes First Country to Recognise Animal Legal Rights, EARTH.ORG (Apr. 4, 2022), https://earth.org/ecuador-becomes-first-country-to-recognise-animal-legal-rights/.