The Holy Cow: Anti Cow Slaughter Laws & The Constitution

Madhya Pradesh Legislative Assembly passed the Gau Vadh Pratishedh (Sanshodhan) Act 2012 in order to strengthen the anti cow slaughter laws in the state. Not only does the Act call for a complete ban on slaughter of the bovines but it also seeks to punish consumption and storing of beef. Thus if you deliver communal hate speeches you will be imprisoned for up to 3 years  but if you dare eat beef in Madhya Pradesh , you could potentially serve up to 7 years in jail with a minimum fine of Rs. 5,000. The burden of proving innocence has also been placed on the accused, thereby reversing the normally accepted notion of innocent until proven guilty. The Act comes as no surprise as the Chief Minister Shivraj Singh Chouhan had once declared the cow as the ‘holy animal.’ Interestingly in Karnataka, Chief Minister K Siddaramaiah, has withdrawn The Karnataka Prevention of Cow Slaughter and Preservation (Amendment) Bill, 2010 which had been introduced by the previous Government. Do laws which prohibit cow slaughter violate the principles of secularism as enshrined in Article 25 of the Constitution by imposing values associated with a particular religious community on other communities? By banning the slaughter of bovines, does it not violate the right to trade enshrined under Article 19(1)(g) for those engaged in the beef industry? More importantly , what is the position of the Constitution of India on prohibition of cow slaughter?.


 

Constituent Assembly Debates

Cows have been revered for ages by certain sections of the Hindu community in India , however the issue of cow slaughter has been a flashpoint for communal tensions in certain parts of the country. However, the Constituent Assembly discussed the issue  on 24th November, 1948 and it  led to the insertion of Article 48. However the Constituent Assembly emphasised  on economic justifications behind prohibition of cow slaughter such as  bolstering milk production rather than  Hindu values associated with it. Pandit Thakur Dass Bhargava while arguing for such a provision gave the example of how even during the Mughal rule, cow slaughter was prohibited not because it was “bad” but because “from the economic point of view, it was unprofitable.”  Thus it is important to examine  the language used in Article 48. Article 48  states that such prohibition shall be based  “on modern and scientific lines” and lists cows, calves, draught and milch cows. It specifically mentions  cows as they are the source of milk production, but omits bulls and other bovines.

Dr Ambedkar ensured that the language used in the Article did not reflect any religious sentiment and also included it as a Directive Principle rather than as a Fundamental Right. In fact when Seth Govind Das wanted a blanket ban on cow slaughter including all types of bovine species based on the argument of respecting the Hindu religion, Nehru refused to submit  and even threatened to resign as Prime Minister in trying to maintain the secular nature  of the Constitution. However in the Constituent Assembly, Syed Muhammad Sa’adulla had expressed the fear that a provincial government may bring in such a law to satisfy religious demands through the backdoor of economic reasons , he also maintained that if such laws are legislated on economic grounds , then the immunity cannot be extended to cattle which act as a burden on the resources. However, the other members made it clear that if the law is made due to religious grounds, it cannot be enacted.

Judicial Precedents

The Supreme Court in Mohd. Hanif Quareshi & Others vs The State Of Bihar dealt with a case wherein laws which imposed a blanket ban on cattle slaughter in 3 states had been challenged by butchers on the grounds of violation of right to freedom of religion and right of  trade and profession. The Court held that the law cannot be challenged on the grounds of freedom of religion because the sacrifice of a cow is obligatory and not mandatory in Islam for the occasion of Bakrid.   However, this line of thought was criticized because the Courts ignored the Surah of the Quran which mandates cow sacrifice. Further, the Supreme Court referred to the Hindu reverence of cows (even though Article 48 is purely on economic lines), but finally concluded that once the cattle had no more economic utility , such as providing milk and draught power , then they cannot be protected  from slaughter by the law. Thus there cannot be a blanket ban on slaughter of cattle of all types for all periods of time because the foundation of Article 48 is economical. Certain laws like the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964 have been made on these lines because it bans the slaughter of cows but allows the slaughter of bovines certified to be unable to produce milk or engage in other work.

However, Courts have grievously defaulted in making the distinction between economic and religious reasons, in Municipal Corporation Of The City of Ahmedabad v Jan Mohammed Usmanbhai & Anr  the Supreme Court directed slaughter houses to close down on the days important to Hindu worship, thereby justifying a religious basis for the ban. Such directions go against the very nature of secular fabric and the intention of the Constituent Assembly.

In State Of Gujarat vs Mirzapur Moti Kureshi Kassab , a law which sought a blanket ban on slaughter of cattle was in issue before the Supreme Court. . The Court overturned the decision in Hanif Quereshi by stating that even cattle which had no  utility can be protected from slaughter. This was  a surprising move by the Supreme Court especially considering that cattle with no utility would be a burden on resources and that the purpose of Article 48 was to protect bovines with economic utility. The Supreme Court justified this by stating that the ban extending to cattle with no use is justified by Article 51A(g) , which seeks to show compassion to animals and overlooked the right to trade of the butchers. If that is the case, can a law banning non- vegetarianism be justified on similar grounds and thereby override the right  of trade for those engaged in the  food industry. Can such a justification deny the liberty to the citizen to consume what he/she? The Court even stated “desirable diet and nutrition are not necessarily associated with non-vegetarian diet and that too originating from slaughtering cow progeny”. The author doubts whether  it is the mandate of the Court to discuss what is a “desirable diet.”

The Gau Vadh Pratishedh (Sanshodhan) Act 2012 is the first among  a range of anti cow slaughter bills which imposes a penalty for consumption of beef and even empowers the police to enter premises and inspect in case there is suspicion of commission of  an offence. It has rightly been critiqued as a draconian step as the  powers which have been granted to the police can be easily misused against communities traditionally associated with beef consumption, such as Muslims, Dalits and Adivasis. Even if the ban was confined to cattle with economic use (which is legally tenable), penalizing the consumption of beef defies all logic because it would require the   accused to prove that the beef stored or consumed is  from a cattle with no economic utility. The Gujarat Government had once tried to penalize the consumption of beef but the idea was dropped due to the intervention of the Central Government.

Imposing a blanket ban on slaughter of bovines which even on those which do not have economic utility, cannot be justified on  economic grounds as laid down in the Constitution. Such a legislation  may have been passed  due to political reasons, seeking to reap dividends by using religious sentiments as a form of law.  Thus realising the fear of certain Constituent Assembly members such as Syed Muhammad Sa’adulla that cow slaughter laws on religious basis could be pushed through the backdoor of economic grounds. Activists have argued that this push must be seen in the larger political atmosphere in Madhya Pradesh which seems to promote certain religious values with the backing of the rightwing groups in the state seen in the background of the decisions of the Government such as to make children sign Sanskrit hymns before the mid day meal and making the singing of the Gita Saar compulsory.

In order to stay true to the intention of the Constituent Assembly and the very nature of secularism in India, it is important that the Supreme Court revises its decision in the Mirzapur Kassab case and the Parliament repeals laws such as the Gau Vadh Pratishedh (Sanshodhan) Act 2012.

This article was authored by Arvind Kurian Abraham, Director, NUJS Constitutional Law Society and Second Year student at the West Bengal National University of Juridical Sciences.

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