An editorial was published by The Hindu, one of India's national newspapers analyzing the recent decision of the Indian Supreme Court in Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat delivered on March 14, 2008. It is particularly disturbing. The question arose when the Gujarat government by an order required the banning the selling of meat for nine days during a Jain festival. The court agreed that a right to eat whatever ones wants to eat is a matter of personal liberty protected under Article 21 of the Indian Constitution. However, the Court enforced the ban saying it was a justified restriction on the ban. There are several aspects of this judgment that are disturbing.
To quote the Court 'respect for the sentiments of the Jain community, which has a sizable population in Gujarat and Rajasthan'. But numbers, sentiments and religion should be irrelevant criterion to the Judiciary while deciding upon rights. Ones only tool of analyzing such issues is obvious: reason.
The whole foundation of the modern State rests on the separation of Church and State i.e. to sever the connection between political power and Religion. It means every individual has the right to believe and practice whatever he wants unless he does not violate anybody else's rights. It also means that a White man or a Brahmin should have the right to refuse a job to a Black man or a Dalit in his organization. If the individual chooses to be irrational, the State should not interfere as long as he does not violate somebody else's right. However, in a free market, if the Black man is a good worker, the irrational individual loses out on good ability of the Black man for being a racist.
The state has no right to enforce morality, whether good or bad, upon its people. If I went around the country with a gun trying to enforce Objectivism, the law would not permit me to me to do it. Similarly, the Constitution should not permit the government to enforce their view of morality. This is the essence of the separation of private beliefs (especially religion because nothing with would be lethal than applying primitive philosophy in a modern world) and political power. The only purpose of the State is to protect the rights of the individuals, not become its annihilator. The mere fact that selling of meat offends a few people in a community during the festival violates nobody rights. The only way to violate somebody's right is by using force. Even in crimes like defamation, if one can objectively prove damage, the person who wrongfully defames another's reputation is punished. The only perpetrator of force now seems to be the agents of the State themselves.
.To quote the Court, "since India is a country of great diversity, it is absolutely essential if we wish to keep our country united to have tolerance and respect for all communities and sects."(Italics mine). The word "unity" seems to be as opposed to individual rights as it seems to imply citizens as "a family" or replaceable individuals in a society but not granting them just that status which they are: distinct individuals.
Tolerance is also wished of all the individuals other than the members of the Jain community - who should instead be tolerating selling of meat during the festival. Sanctioning intolerance is no way of furthering tolerance. Moreover, tolerance is not a major virtue. Tolerance does not mean morally sanctioning everything one considers evil, it only means respecting the rights of others even when one disagrees with the other or plain non-interference. Mere non-interference is simply a negative. Non-interference doesn't show committed one is to honesty or justice or principles as such. Non – interference does not even tell which person among the tolerating individuals is right and moral or the wrong and immoral. By no means, it can be classified as a major virtue but taking steps towards validating ones values with reason, developing character and a strive for the achievement of happiness are.
The judgment is not the first of its kind. In Om Prakash v. State of U.P. (2004), a ban on sale of any meat, fish or eggs at anytime in the year in Rishikesh was upheld by the Supreme Court. In Zoroastrian Co-operative Housing Society Limited v. District Registrar Co-operative Societies (2005) the Supreme Court upheld direct religious discrimination by allowing co-operative housing societies to restrict their membership to followers of a particular religion. The trend is disturbing.