Kill the man, he ate that cow?

 

 

 

Ayushi Singhal takes a legal look at cow slaughter and beef ban, taking off from the Constitutional Assembly Debates and Indian judgments.

For the uninitiated, the banning of cow-slaughter is indeed a Directive Principle of State Policy in our Constitution. Thereby giving freedom to the legislature to ban the same as long as the fundamental rights remain protected. Article 48 in our Constitution reads,

The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.”

Legal arguments are consistently made in the interest of the practical agricultural reality in India. In the case of Hanif Qureshi v. State of Bihar (AIR 1958 SC 731) the Supreme Court interpreted this Article to encompass a ban on slaughter of cows and calves and those other animals which are presently or potentially capable of yielding milk or doing work as draught cattle and not to cattle which at one time were such but now have ceased to remain so. Recently, in the decision of Gujarat v. Mirzapur Moti Qureshi Kassab Jamat (2005 8 SCC 534), the Court while reviewing the earlier trajectory of cases categorically stated that the expression “milch or draught cattle” were only descriptive of the species of cattle so as to differentiate them from other kinds of cattle which were not milch or draught in nature. It was held that this did not exclude the cattle which were earlier milch or draught but have ceased to have this functionality either permanently or temporarily. The complete ban on particular kinds of cattle in the Bombay Animal Preservation Act of 1954 as amended by the State of Gujarat in 1994 was thus upheld. Unlimited protection was given to cow and calves and milch and draught cattle irrespective of their (in) capability in contributing to “organi [zing] agriculture and animal husbandry on modern and scientific lines.”

This is certainly not the conclusion one reaches according to the plain language of the provision. If one pays attention to the term “in particular” in Article 48, it implies that “steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle” is a particular manner in which the “state shall endeavour to organise agriculture and animal husbandry on modern and scientific lines” (even though the Constitutional Assembly Debates hint to these two objectives being separate, the language finally adopted does not reflect the same, see, Constitutional Assembly Debates, Vol.7, Nov. 24, 1948). The conclusive position as it stands today is that it is a matter of policy of the state government to allow/disallow cow slaughter (Bal Ram Bali v. UoI, AIR 2007 SC 3074).

The interpretation of this provision has only broadened and has stood challenged on grounds of fundamental rights in different ways. It is interesting to note the statement of Mr. J.J.M Nichols Roy, made in the context of debates on Article 48, during the Constitutional Assembly Debates,

I was wondering whether this provision would mean the prohibition of cow slaughter at all times and of every kind of cows and cattle. I thought in my own mind that that was not the meaning. If that be the meaning of this provision which I do not think it is, it would place a terrible burden on the State. Think of the millions of cows that will float round the country without any fodder, and sickly, and the amount of money that will be spent on them and the terrible burden it would be on any country. Hundreds of them will die in the fields without being taken care of. It will not be economic at all for any State to prevent the slaughter of cows under all circumstances. I consider that this article would only prevent the slaughter of cows which are milch cows and draught cattle, which will be of benefit to people. If it be otherwise, I consider that that would be a blot in this Constitution and an oppression also to some of the people, especially to the Hill people of Assam, who eat beef and who keep cattle for the sake of eating. It would also be an oppression to the people who slaughter cows in sacrifices like the Moslems; even the Hindu Gurkhas of Assam sacrifice buffaloes at the time of the Durga Puja.” (Constitutional Assembly Debates, Vol. 11, Nov. 19, 1949)

The meaning which he was afraid of has now come to be the law of the land. A complete ban on cow slaughter is not only uneconomic as described in this statement but also anti-secular as “those who put it on the economic front, … do create a suspicion in the minds of many that the ingrained Hindu feeling against cow slaughter is being satisfied by the backdoor” (Constitutional Assembly Debates, Vol.7, Nov. 24, 1948).

As Professor DD Basu, in his Commentary on the Constitution of India (2010, p.4167) has pointed “as various provisions of Irish Constitution show that Ireland is a Roman catholic nation, so art.48 shows that Hindu sentiment predominated in the Constituent Assembly.”(Citing The Indian Constitution-Cornerstone of a Nation, Ninth Impression 2005, Chap. III, p.82)

It needs to be remembered that Article 48 does not automatically imply a carte blanche for beef ban as beef can also be imported(without slaughtering cows in India). In such a situation it is disheartening to see people allegedly being killed for merely keeping beef and the killers apparently providing a constitutional justification to it. It should not even matter what people are eating in their homes, until the same is not having an adverse impact on others. This inclination towards banning things is indeed transforming us back to an era wherein peoples’ choices were dictated using such bans. Professor Upendra Baxi says, “The present pro­-cow agitations belong to the realm of what Vilfredo Pareto called the “non-­rational” aspects of social life”.

In this, one can of course not deny that the protection of cows does have a religious angle. At the same time, religion, particularly being used by the state as a tool, cannot dictate what people eat, until the same is a free choice. Beef has indeed been eaten historically and presently around 80 million people in India eat beef. I believe time is ripe that we do away with this provision in the Constitution, which was in fact a result of a compromise and was inter alia introduced because “the vast majority of the Hindu nation revere the cow as their goddess and therefore they cannot brook the idea of seeing it slaughtered.” (Constitutional Assembly Debates, Vol.7, Nov. 24, 1948). I do not deny that religious polarization can happen with or without such a constitutional provision. It is also possible that deleting such provisions might lead to more religious disputes for the time being. However in the long run, at least this will give fewer excuses for such polarization.

Bal Gangadhar Tilak during his trial, says of cow-slaughter (although in a different context):

You write upon the cow-question. If you write in a particular way the Mahomedan community may not be offended but the Hindu community may be. The question of effect in that case does not depend only upon the writing but also, and more especially, upon the state of the mind of the people to whom it is addressed and the particular time at which it is addressed; upon the particular state of society and the stage of its development at the time it is addressed. What may cause disaffection to-day may not have excited disaffection 20 years ago, and what appears horrible to-day may appear quite different 10 years hence.”

It so appears, the 10 years hence is still very far.

P.S.: The Constitutional Assembly Debates on the provision of cow slaughter and the Part of the Constitution in which it should find place in, make for an informative read. Especially to understand that the fear of this being used as a tool of religious polarization was envisaged even back then.
It was even proposed “the ban on the slaughter of cow, which is the Kama Dhenu the mother of plenty, had been (sic) made absolute, and given a place in the Fundamental Rights” (Constitutional Assembly Debates, Vol.11, Nov. 19, 1949).

 

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