The blog is authored by, Vagish Yadav, a fifth-year law student, pursuing his B.A LL.B (Hons.) at Amity Law School Lucknow.
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It will not be out of proportion to say that a species in a million, Bos Taurus, commonly known as Dairy Cow, has been engendering lengthy but futile discussions in our nation. Although this controversy was restrained to the political circle, it has been said to have pervaded with might and strength into the judicial circle too.
Recently, while delivering a Bail Order, a judge of the Hon’ble High Court in Javed v. State of Uttar Pradesh (hereinafter referred to as “Javed Case”) passed certain remarks regarding the usefulness of a cow and that it should be venerated as the National Animal of India. Some years ago too, another judge of the Hon’ble High Court had made observations showing his religious bent of mind forgetting that India is a secular country where no observation can be made by a court of law on any religious matter favouring a particular group, caste, or community. This matter may be left to the political parties to canvass on various religious matters but it should not be a matter on which a judge of the high court should make observations. Moreover, such observations are a double-edged sword, as while it causes harm to communal harmony, it also damages the impeccable integrity of judges of the High Court and the institution itself.
Although the recent judgment in the Javed Case makes a fit case for appeal, there are broader conundrums that need to be addressed in this judgment and in-depth scrutiny of this judgment reveals various misinterpretations of law and miscarriage of justice.
No power with High Court to make Additional Comments
The perturbing question is whether it is permissible as per the established law to make observations that are irrelevant or not germane to the point of an issue during the course of disposal of a matter by the High Court?
The Constitution of India provides vividly more powers to the Supreme Court than the High Courts. The Supreme Court has the power to pass any decree or order in order to do complete justice under Article 142(1) of the Constitution of India. It is pertinent to note in this regard that no such power is provided to the High Court. In spite of the absence of any such jurisdiction, the High Court repeatedly passes orders in excess of what has been pleaded. Similar unfathomable and inscrutable findings have been recorded in the judgment of Javed Case when the Court rambles for several paragraphs delineating the historical sources and hearsay stories which conclude that in the ‘glorious’ past, Cow has been revered by people irrespective of religion in India and concludes that Cow must be declared as the National Animal.
The Bail Dilemma
In the Javed case, the High Court failed to analyze any documentary evidence which could place the accused persons at the spot of the recovery of cow meat. This laid-back attitude of the Court in such cases, is deplorable, especially when the right to liberty is at stake. It has already been frescoed in Bail Jurisprudence that Bail is the rule and jail is the exception. Further, in recent judgments of Dataram Singh v. State of U.P. and Nikesh Tarachand Shah v. Union of India, the Supreme Court has held that although allowing bail is a discretionary power at the disposal of the judge, it must be exercised with a ‘humane’ attitude. Moreover, it was held in Gurubaksh Singh Sibbia v. State of Punjab that, bail shall not be withheld as a form of punishment.
The factual matrix as per the FIR attracted the provisions of Section 379 of the Indian Penal Code and Sections 3/5/8 of the Uttar Pradesh Prevention of Cow Slaughter Act 1955. Under the 1955 Act, all offenses are provided to be cognizable and non-bailable under Section 9. The Court has ignored the rudimentary tenet of Bail Jurisprudence and previous case laws while denying bail in the Javed Case. In the case of Rahmuddin v. the State of U.P., the Hon’ble Court observed that the Uttar Pradesh Prevention of Cow Slaughter Act 1955 is being ‘misused against innocent persons’ and granted bail in view of the larger mandate of Article 21 of the Constitution of India. The Court further pointed out that there was no forensic analysis in these cases and any meat was said to be “Cow Meat”. It is apt to quote Max Weber who said, “State has the monopoly over violence”. Although the Government has taken a stern stance against cow vigilantism on record, such frivolous and malicious FIRs prove the vigilantism by the State Government itself, against which the judiciary has failed to take an anti-majoritarian stance.
Moreover, the Court stated that stringent rules are provided against bail in such cases which does appear to be another figment of the imagination of the court. As per section 8 of the Uttar Pradesh Prevention of Cow Slaughter Act, 1955, there are merely two additional conditions added in order to bring on record the submissions of the Special Public Prosecutor. Moreover, the court has failed to consider further important factors like the seriousness of the offense and nature of the accusation, punishment of the offense, genuineness of the prosecution, and prima facie evidence available on record.
Promoting Scientific Misinformation
The Hon’ble High Court has made certain blatant and ignorant remarks which even a prudent human knows are wrong. It claims that Cow “Ghee” is the source of oblation in a “yajna” which powers the sun and not the fusion of hydrogen. The judgment further notes that the scientific community agrees in general that a Cow is an animal that inhales as well as exhales Oxygen. Further moderately doubtful scientific claims are also stated but need no mention in light of such radical ones.
These shocking revelations are not just shocking for the scientific community but are a disheartening setback for the promotion of scientific temper. Stating unfounded and unscientific statements by a High Court are extremely ignorant of the constitutional duty of developing scientific temper under Article 51A (h) of the Constitution of India. Furthermore, such statements become a beacon of hope and inspiration for misinformation breeding in these contagious grounds which may be fatal for the people and an anathema for the society.
In the Parliamentary Debates, Article 48 was thoroughly discussed and it was tabled by means of an amendment based on a two-pronged approach, religious approach, and economic approach. The High Court, however, took an additional stance, the ‘animal rights’ approach, too. But this is flawed in itself and suffers from the ‘Straw man Fallacy’. The Court cited Indian Animal Welfare Board v. A. Nagraj and State of West Bengal and others v. Ashutosh Lahiri are built on the edifice of cruelty against animals. There is a significant line between cruelty against animals and commercial sale of meat and ancillary activities which the Court has blurred. The commercial sale of meat is to satisfy the hunger of a population that is eating meat due to its natural availability and forms part of a natural chain. Cruelty is related to the intention of killing for the sake of it or for sadistic pleasure.
The constitutional mandate of Article 21 of the Constitution of India is time and again ignored by Courts in granting bail. Many factors are ignored while rejecting bail for an offence limited by geographical territory. Hence, in light of the above-mentioned analysis, bail in such cases, where neither any forensic analysis has been done nor there is any prima facie sufficient evidence, shall be granted by the High Court.
Further, it is a primary obligation of a Judge to dispose of cases, but the judges have time and again taken up the onerous responsibility of preaching, which is not required. In the golden days, judges did not step out of disposing of cases and their work in the courts is the only attribute that contributed to their impeccable integrity. Such remarks being sans jurisdiction are cataclysmic signs of eroding the impeccable integrity of Judges and the Court as an institution.
Views expressed are personal.