Would a Delhi Navaratri meat ban stand up in court?

On Monday, the mayor of South Delhi Municipal Corporation Mukkesh Suryaan sent a letter to the commissioner of South Delhi Municipal Corporation urging him to issue an order for the closing of meat shops in the South Delhi municipality for the period of Navarati, from April 2 to April 11.

The letter claimed that devotees observe a strict vegetarian diet and “forgo even the use of onion and garlic”, and thus the sight of meat being sold in open would make them uncomfortable. This will even affect their “religious beliefs and sentiments”.

The mayor has claimed that the ban will be strictly implemented. However, the press bureau of the South Delhi Municipal Corporation has said that Suryaan’s letter is not a legal order and therefore shops can be open.

The East Delhi Mayor Shyam Sundar Agarwal has also made an appeal to the municipal commissioner in the area to shut meat shops during Navaratri. This appeal also does not constitute a legal order.

Orders for shutting down meat shops during festive periods have been issued before and have been upheld by courts. However, these judgments may not be applicable to the situation in Delhi.

There are two legal issues at play here: who has to power to regulate the closing of meat shops under the law and how it would affect the fundamental rights of the parties involved, given that such a ban would affect the right to carry on trade, under Article 19(1)(g), the right to livelihood and right to privacy, under Article 21, and the right to equality, under Article 14.

Power to issue orders

Opposition leaders have pointed out that the mayor does not have the power to issue such an order. Congress councillor Abhishek Dutt pointed out that the mayor can only give suggestions to the commissioner, who can later choose to issue orders.

Regulation of meat shops are governed by the Delhi Municipal Corporation Act, 1957, under which the commissioner has the power to shut them down.

As per Section 405, municipal markets and slaughterhouses managed by the municipal corporation are under the commissioner’s control, who can close them at any time through a public notice.

For private markets and slaughterhouses, Section 406 says that the commissioner has the power to suspend the licence for a period she thinks fit, subject to the approval of a standing committee and after recording reasons in writing.

In earlier instances, such meat bans have been ordered under municipality acts. For example, slaughterhouses in Ahmedabad were closed for nine days to observe the Jain festival of Paryushan, a period of fasting and abstinence. This closure was ordered under Section 466(1)(D)(b) of the Bombay Provincial Municipal Corporation Act, 1949, which gave the commissioner the power to make standing orders fixing the days and timings when any market or slaughterhouse can be kept open.

Supreme Court upholds the ban

In 2008, the Supreme Court upheld a nine-day closure of slaughterhouses on account of Paryushan. The court said that while this affected the fundamental right to freedom of trade and occupation, such a restriction was “reasonable”.

“A period of nine days is a very short time and surely the non-vegetarians can become vegetarians during those nine days out of respect for the feeling of the Jain community,” the court said.

The court also strongly emphasised that there is a significant population of Jains in Gujarat and such closures have been enforced in Ahmedabad since at least 1993.

However, the court also stated that what one eats is a personal affair and forms a right to their privacy under Article 21. This was also recognised in the 2017 Supreme Court case where privacy was held to be a fundamental right.

Relying on this 2008 decision, the Bombay High Court in 2019 upheld a ban on meat shops and slaughterhouses for a few days during the Paryushan festival in parts of Maharashtra.

In 2004, the Supreme Court upheld a ban on the sale of eggs and meat in the temple towns of Rishikesh, Haridwar and Muni Ki Reti. It said that “geographical situation and peculiar culture” of these places justify the “complete restriction” on trade in eggs and meat. Therefore the court ruled in favour of “deference to the religious and cultural demands of large number of residents and pilgrims who visit regularly”. The ban was further justified on the basis that tourists and pilgrims were a major source of revenue and employment in these towns.

Criticisms of the Supreme Court judgment

However, later in 2015, the judge who authored the 2008 judgment Markandey Katju, expressed doubts about his order. He also said that this judgment may not be applicable to cases where such a ban did not exist earlier.

A meat ban in Delhi has never been implemented before. Further, most of the workers in meat shops are daily wage workers, for whom losing a single day’s wage would significantly affect their earnings. These facts could distinguish the present case from the 2008 Supreme Court judgment. After the 2017 privacy judgment, any restriction on food will also have to be tested on whether such restriction is lawful, necessary and proportionate.

Apart from this, even the Supreme Court has expressed reservations about the 2008 judgment.

In 2015, faced with an order shutting down meat shops and slaughterhouses in parts of Mumbai during Paryushan, the Supreme Court said that the 2008 case precedent would not apply in this instance. It said that the 2008 case was with respect to a ban only on slaughterhouses and not meat shops. Apart from that, it said that Jains had a smaller population in Maharashtra compared to Gujarat and that Mumbai was a global, cosmopolitan city which stood on a different footing from Ahmedabad.

It also took note that the ban in Mumbai was only from 2014 and was never enforced earlier.

“Having regard to the facts and circumstances of the case, we are of the view that merely to appease one section of the society, the personal dietary choices of the public at large should not be affected,” the court said. “What one eats is his own business and it cannot extend to what others eat.”

The court also noted, “The sentiments of our brothers and sisters of the Jain community is one thing and not making meat available in market so that the public at large have no access to it and to deny them that food, is something different altogether.”

While the court put an interim stay on government orders shutting down meat shops and slaughterhouses, the petition was later withdrawn and the Supreme Court said they have not expressed any final opinion on the merits of the case.