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| Beef Ban - Point missed in the frenzy | | 
By B L Saraf
Kashmir society is up in protest against the order of the J & K High Court ‘banning ‘ slaughter of bovine animals , and sale and possession of beef. It is seen as an interference in the religious belief . The order has unified political parties across the spectrum in Kashmir to agitate for the ‘ cause".Professor Soz of the INC wants Court to roll back the order ; A R Rathur of NC calls upon the state government to bring out an ordinance to annul Sections 298 A and 298 B of the RPC . For PDP , it is better if the relevant sections in the RPC are treated as a “ dead letter on the statute book “ and allow the people to enjoy beef as they have been doing so far.Hurriyat has exhorted Kashmiris to respond and “ give a message to the government and the judiciary that they have no right to ban what is halaal in Quran and permitted by Shariat .”
The development has thrown up couple of points which need to be explained . It is not the High Court that has ordered ban on sale or possession of beef . Slaughtering of bovine animals and sale of beef is an offence under penal law and made punishable with imprisonment . Reference to Sections 298 A and 298 B RPC should suffice . What stands proscribed by a substantive law need not be re – banned . Because , imposition of ban is inbuilt. Some argue that since there has been a flagrant violation of law , with no action from the authorities , the High Court has rightly stepped in ; it is Constitutionally mandated to uphold the rule of law.
Then , there is an argument that when sale and possession of beef is an offence in the J&K State and infarction of the law would automatically entail a penal action , where was a need for the Court to intervene . RPC is a substantive piece of law ; it will step in whenever a person commits an act defined as offence by the Code . There is no need for the Court to goad it into action . The Code is on auto –pilot and would move in a direction without a prodding . There can be a point that the RPC does not call for a preventive activation . Fear of the law may do so , but a substantive penal law does not operate in anticipation . So it cannot be used to preempt a potential murderer from embarking upon a nefarious design . It will deal with him as an accused after the commission of offence . Therefore ,some would say , it will indeed be too much for a court to order police to ensure , at all costs , that no offence is committed.It is the normal duty of police to ensure law and order in the society . Well , it may be a desirable thing but, unfortunately, we follow what Bentham calls a Dog’s Law , where we punish an offender after the event and not restrain him from committing offence . Matter is open to the debate .
Without details,It will not be advisable to comment on the merits of the case . But I have every reason to believe that the Honorable Court must have examined the case from all angles before passing the order.Unfortunately ,some elements have brought in the religious and regional considerations in the discussion. An unsavory trend has developed where we see unfavorable decisions of the Courts through parochial and religious lenses . It happened in early eighties of the previous century when there was an honest difference of opinion among the Honorable Judges , constituting the bench , in the Anti- Defection law case . It was a same story when one Honorable Judge of bench, deciding fate of those state subject females who would lose their right of inheritance and property on their marriage with the non-state subjects , had different reasons from the other two . The trend must be curbed . If we have to survive in the conflict area there must be unflinching faith in the judiciary . Otherwise we will be left to the cruel mercies of the state .
The issue is , hugely, a sensitive one . It touches up on the religious feelings of every resident of the state . A great degree of caution and sensitivity on the part of all organs of the State and the society ,at large , are required while dealing with it.
The order under reference has come out of a judicial process. Let the aggrieved take resort to the same process and seek a redressal of his grievance , if any.
State government should appreciate it in proper perspective. Knee jerk response will cause more harm than the good . Change of law officer won’t be a desirable thing to do . Or else , the government will have to change its law officer every time it loses a case , which it does more often .
Roads in the Valley have bathed enough in human blood . Let us spare them the agony and not wash them with the blood of innocent animals.
Well wishers of PM Narrandra Modi will serve him right if he is allowed to focus on his agenda of good governance .
(The Author is Former Principal District & Sessions Judge)
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