PILGRIMS IN RISHIKESH: Desiring a ‘vegetarian’ atmosphere

It was a judgment that trod upon eggs, literally. In a recent Constitutional matter before the Supreme Court (Om Prakash & Others vs State of UP & Others), the cause of action seemed trivial but its deeper connotations were unravelled in the course of the appeal. By approving, at the Hindu pilgrim town of Rishikesh, the municipality-imposed ban on the sale of eggs, a food offensive to the religious sensibilities of residents as well as tourists, the apex court has redefined the “reasonable restriction” on the fundamental right to carry on any occupation, trade or business, as in Art. 19(1)(g). The judgment is also interesting for the silence, on the side of the appellant, about the safeguard under “secularism”, as given in the preamble. In France, for example, the recent government ban on headscarves has been justified on the ground that the dress isn't secular, but it is opposed by groups that demand special rights for the minorities in multicultural France.

The dispute began as the municipal board of Rishikesh, the religious town in the Garhwal region of Uttaranchal, banned the sale of eggs within the town’s municipal limits. Rishikesh, Haridwar and Muni ki Reti are holy towns in the foothills on the banks of the Ganga, and are on the way to the high Himalayan temples of Kedarnath and Badrinath and religious congregations there that attract millions of people. Public trade in meat, fish and eggs are banned in Haridwar and Muni ki Reti but the ban in Rishikesh did not cover eggs. However, dispute arose as the Rishikesh municipal board invoked Section 298(1) of the UP Municipalities Act, 1916, to include eggs in the list of food items banned for trade.

The plaintiff argued that the municipal action was illegal as Section 298(2) of the Act, which has a list of items liable to be banned, does not include eggs. Besides, and more importantly, the impugned by-law notified by the municipal board could be held as ultra vires to Art. 19(1)(g). The high court upheld the notification, holding that welfare of the people is of paramount consideration and that it was not an unreasonable restriction. The plaintiff obviously preferred to move the ultimate court of appeal.

The division bench (Justice Shivraj V. Patil and Justice D.M.Dharmadhikari) was predictably quick at dismissing objection on banning the sale of eggs. In doing so, the Supreme Court cited its own judgment of 1964 (Afzal Ullah vs State of Uttar Pradesh) which had stated: “It is now well settled that the specific provisions ... of Sec. 198(2) are merely illustrative and they cannot be read as restrictive ...”. Justice Patil cited judgments in India and abroad to make the point that courts should be “slow” to interfere with the by-laws passed by public representative bodies “unless it is manifestly partial, and unequal in operation or unjust”.

However, it was left to Justice Dharmadhikari to respond particularly to invocation of the fundamental right in the appeal. The point to be considered was the limit to Art. 19(6) defining the power of the state to impose “reasonable restrictions” on the fundamental right of the citizen to carry on trade. In other words, was the ban imposed by the Rishikesh municipal board on egg trade a reasonable restriction? “A major section of the society in the three towns considers it desirable that a vegetarian atmosphere is maintained (there) for the inhabitants and the pilgrims,” the judge wrote. He dwelt at length on the flexibility of the supposed ‘reasonableness’ of the executive restriction, specially in the view expressed by the court earlier (Chintaman Rao vs State of MP, 1951) that the Constitution sought a balance, in ‘reasonable restriction’, between the right of trade and social control. The judgment, in upholding the municipality’s right to ban trade in eggs, drew heavily on the communitarian view that the state should support the rights of its constituent communities rather than those of individuals. It speaks of the large number of people residing and visiting Rishikesh who “believe in strict vegetarianism ...” The judgment mentions that the appellants who’re running hotels and restaurants in the area are a “very small section of the society”. And, perhaps to pre-empt any argument on the ground that the ban may not square with the Constitution-given definition of India as a “secular” nation, the judgment points at the Fundamental Duties in the Constitution (Art. 51-A) concerning promotion of “harmony and the spirit of brotherhood amongst all people of India”, and “to value and preserve the rich heritage of our composite culture”.

The judgment, though unflawed in the context of the matter on record, raises deep questions about Indian multiculturalism, and about the way it is evolving. Related to it is the issue of fundamental rights. In the US, the Bill of Rights itself contains no limitations to citizens’ rights, but its Indian variant has limitations in the garb of “reasonable restrictions”. In a multicultural society, the state can apply these restrictions for social engineering, like encouraging some minority tribes in jobs, award of scholarships, etc. But using the restriction to protect the sentiment of the majority may lead to a mono-communitarian solution. One wonders what the court’s view would be if the French ban on headscarves happened in India.