Fayaz Bukhari
SRINAGAR, Oct 16: Jammu and Kashmir High Court while disposing off petitions – seeking enforcement of beef ban and its revocation – today directed the State Government to take appropriate action on issues raised in both the petitions. The court said it can’t ban or permit animal slaughter as it is the matter of State and it has to take a call on the issue.
The three-judge bench comprising Justices Muzaffar Hussain Attar, Ali Mohammad Magrey and Tashi Rabstan today vacated the beef ban order passed by the division bench of the Jammu wing of the High Court and also disposed off the Public Interest Litigation (PIL) filed before the Srinagar bench seeking abrogation of Section 298A and Section 298 B of the Ranbir Penal Code (RPC).
“Both the petitions are disposed off along with connected MPs and orders passed from time to time in these petitions, including order dated 8.9.2015 are vacated. The State of Jammu and Kashmir through Chief Secretary to consider the issues raised in these petitions in the light of observations made in this order and take appropriate steps in accordance with law”, directed the full bench.
The bench said it can’t direct Government to permit or ban bovine animal slaughter as it is the policy matter of the State and has to take call on such issues. “The bench while referring the Supreme Court citation mentioned in the judgment that it cannot direct the Government to enact a law in a particular manner. It can neither direct for such a law for banning of slaughter of bovine animals nor can it direct to make such a law to permit slaughter of any kind of animal but this is the policy matter of State and State has to always take a call on such issues. It is after a law is made and its validity is challenged then it becomes jurisdiction of the courts to test the legality of such law”, the bench said.
The Jammu and Kashmir High Court last week formed three-judge bench on the directions of Supreme Court, asking Jammu and Kashmir Chief Justice to constitute a larger bench to resolve the contradictions emanating from the orders passed by the two benches of the High Court.
The Jammu division bench had passed orders to the Director General of Jammu and Kashmir Police to ensure strict compliance of the existing laws on beef ban in the State and Srinagar bench had issued notices to the State Government on the PIL seeking abrogation of the 1864 beef ban law in the State.
Court in an elaborated judgment said the different groups of human beings are governed by different or same set of principles, norms and rules inhabiting different or same areas of earth and every sect follow its principles and norms under its religion.
“A religion is a prescription which guarantees peace and order in the society. Religion delineates path of peace, truth, piousness and righteousness. Religion guarantees and protects the rights of citizen, persons and individuals”, court said.
To maintain the communal harmony, Court said it is basic human duty of each community to respect the sentiments of other community. “Respect show to the religious sentiments of each other in a pluralistic society like ours is hallmark of our ancient history. This onerous practice when honestly followed will stand guarantee to peace in the society, which forms bed-rock to the intellectual, spiritual and economic development of people”, reads the judgment.
Court also said that with the independence of India and signing of accession and convening of constituent Assembly and framing of Constitution the sovereignty of last Maharaja over Jammu and Kashmir came to an end.
Court also said that the free India was and is, inhabited by people belonging to different religious, faiths having their own cultures and languages “The people of India were and are Hindus, Muslims, Sikhs, Christians, Buddhists etc and all rights of these people more particularly religious rights are protected by constitution”, court said.
Giving the reference of certain Articles of Constitution which provides equality, protection of life, personal liberty, freedom of conscience ,freedom of profession, practice and propagation of religion, Court said these Articles stand guarantee to the rights of persons and citizens like the ‘Himalayan Mountains’.
Court further said that the constitution of Jammu and Kashmir has created three governing wings -executive, legislative and judiciary. “And all the three wings of State have to perform their function within their delineated fields. It has to frame the policies, chalk out programmes for carrying out the mandate given to them by people. The Executive Wing of the State has to decide which existing laws require to be repealed, amended or modified and Executive Wing of State is duty bound to enforce the laws of land”, court said.
Court said laws have different origins as well. “Some laws owe their existence to will of an autocratic king and after dawn of independence and coming into force of constitution, all the laws are being made in accordance with provisions of Constitution. Certain laws are framed to tackle a particular situation and cease to be operational when the purpose is achieved. Some laws though in existence with the passage of time have lost their efficacy and utility and have ceased to be operational. Certain laws and provisions created to achieve a definite purpose, or to serve the ends of an autocratic monarch, or a section of people, have after coming into force of Constitution become obsolete and redundant and such laws remaining on the statute book would be inconsequential and are incapable of enforcement having assumed the character of fossils and some laws or provisions with the passage of time lose their sheen and are dead law rendered incapable of enforcement”, court added in its judgment.
Court emphasized that when some laws violate the rights of larger section of society or have become dead laws, they would call for fresh look and consideration by the Executive and Legislative Wing of the State. “The purpose of framing laws, besides protecting the just rights of the people, is to create the atmosphere of peace and tranquility in the society”, reads the order.
Court observed that law which creates wedge between different sections of society and has the potential of disturbing the peace in the society may not be a just and valid law. “Such a statute or provision even if in existence cannot be given effect for securing the larger interests of the society. The Executive Wing of State has to apply its mind, frame a policy and cull out a solution which satisfies the soul of the constitution”, court said.
Court made it clear that it has not decided any issue adversely affecting the legal rights and interests of any of the parties in this order as such the hearing of the case at Jammu Wing of the court is not required.
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