This Essay is submitted by –
- Bodhisattwa Majumder, 5 year B.A.LL.B. of Maharashtra National Law University Mumbai
The ban on cow slaughter emphasises a restriction on the sale of cattle in animal markets for slaughter. This has given rise to several contentions regarding the constitutional validity of the law. This paper analyses the magnitude of the responsibility of the Parliament embedded by the constitution, and what was the intent behind the drafting of Article 48 of the directive principles of the state policy. The imposition of ban on slaughter of cow was achieved by the Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017 [Animal Market Rules].[1] Furthermore, the article refers to a broad selection of Milch animals and if the government’s real interest was indeed the prevention of cruelty to animals due to slaughter, there cannot be any constitutionally acceptable reason for leaving out chickens, pigs, sheep, goats, fish, rabbits, etc.[2] It is left to the various State Governments to frame laws regarding cow slaughter. A majority of the states have banned cow slaughter while some states allow it, under certain terms and conditions.[3] The implementation of the laws has not been uniform and efficient to achieve the intent of the framers of the constitution. The laws also have to be deeper and better thought out. The aim of this legislation must be not confused with preserving religious sentiments and the intent of the organisation of agriculture and animal husbandry could be achieved better.[4] An example would be to enforce the killing of aged male bulls as they are a mere liability to the farmers who have to maintain them and can’t make them work or sell them for their meat.[5]
The Researcher will limit the project to the legislations passed by the Indian Legislature only and not focus on the international scenario. He will go across the laws, amendments, constitutional and parliamentary debates to understand the intent of the legislation and the constitutionality of the laws passed. He will also read various articles to understand the implementation and the consequences of the ban on cow slaughter. The researcher will conclude the paper with certain amendments which might help achieve the intent for which the article was drafted.
Definition and Scope of Cow Slaughter Ban
According to the Prevention of Cruelty to Animals (Regulation of Livestock Animal Markets Rules), through its operation, imposes a virtual ban on the sale of cattle in animal markets for slaughter. The scope of the applicability of Cow Slaughter ban is defined in Rule 2(e) which defines ‘cattle’ as a “bovine animal including bulls, bullocks, cows, buffalos, steers, heifers, and calves including camels”. Rule 22 (e) imposes a duty to the Member Secretary of Animal Market Committee (The Chief Municipal officer of the local authority) that no purchaser of a cattle shall (i) sell the animal for slaughter or (iii) sacrifice the animal for any religious purpose.
Historical Background of Cow Slaughter Ban
Scholars have known for centuries that the ancient Indians ate beef.[6] In the time of the oldest Hindu sacred text, the Rig Veda (c. 1500 B.C.), cow meat was consumed. Like most cattle-breeding cultures, the Vedic Indians generally ate the castrated steers, but they would eat the female of the species during rituals or when welcoming a guest or a person of high status.[7] Ancient ritual texts are known as Brahmanas[8] (c. 900 B.C.) and other texts that taught religious duty (dharma), from the third century B.C., say that a bull or cow should be killed to be eaten when a guest arrives. According to these texts[9], “the cow is food.” Even when one passage in the “Shatapatha Brahmana” (3.1.2.21) forbids the eating of either cow or bull, a revered ancient Hindu sage named Yajnavalkya immediately contradicts it, saying that, nevertheless, he eats the meat of cow and bull, “as long as it’s tender.”[10]
It was the Sanskrit epic, the Mahabharata (composed between 300 B.C. and A.D. 300) that explained the transition to the non-eating of cows in a famous myth:[11]
“Once, when there was a great famine, King Prithu took up his bow and arrow and pursued the Earth to force her to yield nourishment for his people. The Earth assumed the form of a cow and begged him to spare her life; she then allowed him to milk her for all that the people needed.”
This myth depicts a transition from hunting wild cattle to preserving their lives, domesticating them, and breeding them for milk, a transition to agriculture and pastoral life. It visualizes the cow as the animal that yields food without being killed.
Laws related to Cow Slaughter Ban
Article 48 of the Indian Constitution
According to Article 48 on the Indian Constitution,
The organisation of agriculture and animal husbandry: 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.
However, this article, as it is in Part IV of the constitution, which contains the directive principles of state policy, is not justifiable in law. While duty is cast on the state to make laws based on the urging of the various directive principles, no person can question the state in a court of law on the ground that a provision in Part IV stands violated by either the government’s action or inaction, as the case may be.
Rule 22 of Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017 [Animal Market Rules]
According to the Prevention of Cruelty to Animals (Regulation of Livestock Animal Markets Rules), through its operation, imposes a virtual ban on the sale of cattle in animal markets for slaughter. Rule 22 (e) imposes a duty to the Member Secretary of Animal Market Committee (The Chief Municipal officer of the local authority) to prevent and ensure that no purchaser of a cattle[12] shall (i) sell the animal for slaughter or (iii) sacrifice the animal for any religious purpose. This law concerns itself with practices that inflict unnecessary pain or suffering on animals. Its mandate isn’t to regulate the preservation, protection and improvement of livestock, something which is decidedly for the states to do.
Article 246 (15 Entry in the State List)
According to entry No.15 in the state list, confers the State Legislature exclusive power to enact laws banning cow slaughter. It states,
Article 246, List II – State List (15) Preservation, protection and improvement of stock and prevention ofanimal diseases; veterinary training and practice.
Therefore, there is no expressed Constitutional validity which authorises the centre to pass any laws regarding preservation and protection of Cattle and implementation of the same.
Other authorities related to Cow Slaughter Ban
Constitutional Debates
On November 24, 1948, the amendment to protect cows was made by a member from East Punjab, Pandit Thakur Dass Bhargava who argued on the economic point of view, and stated that Cattle formed a significant source of health and nutrition. His argument was threefold, firstly the practice of agriculture should be improved, cattle related to dairy and agriculture should be improved and lastly, cow and another form of cattle should be protected.[13] His argument was substantiated by R V Dhulekar who added the religious perspective of Cow as a symbol for Hindus who worship them as a mother and also added the historical perspective where Babur had instructed Humayun to refrain from cow slaughter to win hearts of Hindus.[14]
Religious Mandates
Hinduism places a certain sacredness on Cow as an animal and cow killing and cow eating were not sanctioned by the Vedic scriptures to the contrary they were condemned, and also according to the authority of the Bible cow killing is not sanctioned in the Christian religion either.[15]
- Lord Krishna states in Srimad Bhagavad-Gita[16] that he is manifested as kamadhuk in cows, meaning Kamadhenu the wish-fulfilling cows, which confers that Cows represent a portion of the supreme energy of Lord Krishna.
- In Sri Chaitanya Charitamrita Adi Lila,[17] Chaitanya Mahaprabhu confirms, that Cow killers and cow eaters are condemned to rot in hell for as many thousands of years as there are for each hair on the body of every cow they eat from
- In the Rig Veda,[18] we find: “One who partakes of human flesh, the flesh of a horse or another animal and deprives others of milk by slaughtering cows; if such a fiend does not desist then even cut off their heads by your powers Oh king.”
- In the Manu-Samhita[19], we find: “A guru, a teacher, a father, a mother, a brahmana, a cow and a yogi all should never be killed”.
- Even in the Old Testament of the Bible which applies to both Christians and Jews in Isaiah, we find[20]: “He that killeth an ox is as if he slew a man. He that sacrifices a lamb is as if he slit a dogs neck, he that offereth it as an oblation is as if he offered swines blood, he that burneth it as incense as if he blessed an idol. Yea they have chosen their way and their soul delighteth in their abominations.”
Gandhian Perspective on Cow Slaughter Ban
Gandhi is invoked frequently in the course of the debate but his musings on cows and cow slaughter were nuanced and evolved. His view depicted that people should focus on gau ‘Seva’ or serving cows and not on protection or gau ‘Raksha’. In 1921, he reflected: “I would not kill a human being for protecting a cow, as I will not kill a cow for saving a human life, be it ever so precious.”[21] By 1946, Gandhi was clear that “Cow slaughter can never be stopped by law. Knowledge, education, and the spirit of kindliness towards her alone can put an end to it.”[22]
Constitutional Validity of Cow Slaughter Ban
Application of the Directive Principles
The intent of the Constituent Assembly behind the drafting of the relevant directive principle that is Article 48 of the Indian Constitution is to preserve the cattle animals from being slaughtered for the meat for economic reasons. This article was drafted by the constitutional assembly when cattle were used solely for either dairy purposes or to plough the land. However, with the development of technology, in the current scenario, various vehicles such as tractors are used for this purpose which makes the whole procedure swift and economically efficient, thus making the directive principle redundant and contradictory to the intent of the legislature.[23]
3.2 Authority to legislate laws on Cow Slaughter Ban
By the virtue of Article 246, 15th Entry to the State List, the States have been given the exclusive authority to pass legislation regarding the regulation/prohibition of cow slaughter as issues relating to livestock are invariably tied to local conditions of agriculture, availability of fodder, customs, dietary preferences, etc, Therefore, this indirect attempt through the Prevention of Cruelty to Animals Act, 1960 because the power to make laws on animal cruelty is shared between the union and the states on the concurrent list.[24] The Government of India, under the garb of Animal cruelty, is striving to achieve the implementation of law based on the directive principle related to Animal Husbandry which is not within the powers of Centre. Therefore, national anti-cow slaughter legislation by Parliament is unviable because the constitution does not give Parliament the power to make such a law.
Restriction of Inter-state Trade violates Article 301
The states of Assam and West Bengal permit the slaughter of cows of over the ages of 10 and 14 years, respectively. No state law explicitly bans the consumption of beef. There is a lack of uniformity among state laws governing cattle slaughter. The strictest laws are in Delhi, Gujarat, Maharashtra, Madhya Pradesh, Punjab, Rajasthan and Uttar Pradesh, where the slaughter of cow and its progeny, including bulls and bullocks of all ages, is completely banned. Most States prohibit the slaughter of cows of all ages. This includes the storage and consumption of beef. However, in Punjab and Uttar Pradesh, the import of beef for consumption is not banned. In Himachal Pradesh cow slaughter for the research is legal.[25] Assam, Andhra Pradesh, Telangana, Manipur and Tamil Nadu have imposed only partial bans on cow slaughter. In Manipur and Tamil Nadu, beef consumption and slaughter of cow with “fit- for-slaughter “certificate are allowed. In Assam, Andhra Pradesh and Telangana slaughter of cows are permitted with “fit-for-slaughter” certificate. The “fit-for-slaughter” certificate is given when the cattle turn economically useless.[26]
The Rules regarding the Ban of Cow Slaughter has not been uniformly imposed. Furthermore, the Prevention of Cruelty to Animals (Regulation of Livestock Animal Markets Rules) places restrictions on inter-state sale. According to Rule 22(e)(iv),
“the purchaser of cattle cannot sell cattle outside the state without permission, as per state cattle preservation and protection laws”
This rule restricts the traders to sell cattle meat where it is legally permitted. Also, Article 301 of the Constitution declares that trade, commerce and intercourse throughout the territory of India shall be free. Whether the restriction imposed as per Rule 22(e)(iv) is a reasonable one to be saved by Article 302 should be examined by the appropriate judicial authorities.
Infringement of Fundamental Rights
The Fundamental Right to practice trade can only be restricted by an enacted law but not through a delegated legislation framed by the executive. The above rules also infringe Right to Livelihood, emanating from Article 21.
Rules also restrict one’s food choices. In the case of Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat[27]the court held that what one eats is one’s personal affair and forms part of right to privacy under Article 21.
Case Laws Regarding Cow Slaughter Ban
Mohd. Hanif Quareshi vs. State of Bihar 1959 SCR 629
In the case of Mohd. Hanif Quarashi v. State of Bihar[28], the Hon’ble Supreme Court heard the petition challenging the Slaughter of Cattle in the states of Uttar Pradesh, Madhya Pradesh and Bihar. The Laws banning Cow Slaughter was challenged on three grounds. The Grounds included that it was against the interest of General Public, it violated the Right to trade of butchers under 19(1)(g) of the Indian Constitution and lastly that the ban offended other religion who required the sacrifice of Cow for religious purposes.The Supreme Court held that the total ban of cow slaughter is valid and in consonance with the Directive Principles of State policies under Article 48 provided that they are capable of use as milch or draught animals. Regarding the ground of sacrifice being a part of religion, the court stated that no evidence was laid before the court which state sacrifice of a cow is obligatory overact, therefore the court stated that total ban is within the scope of Article 19(6).
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat (2005) 8 SCC 534
In this case, the petition challenged the amendments in Section 5[29] of the Bombay Animal Preservation Act, 1976[30], which changed the ban on slaughter of bulls and bullocks under the age of 16 to a complete ban, applicable to the state of Gujarat, because bulls and bullocks over the age of 16 become economically unbeneficial.
The court held that[31],
“In the agricultural sector, use of animals for milch, draught, breeding or agricultural purposes has great importance. It has, therefore, become necessary to emphasise preservation and protection of agricultural animals like bulls and bullocks. With the growing adoption of nonconventional energy sources like biogas plants, even the waste material has come to assume considerable value. After the cattle cease to breed or are too old to do work, they still continue to give dung for fuel, manure and biogas, and therefore, they cannot be said to be useless. The backbone of Indian agriculture is the cow and her progeny in a way. The whole structure of the Indian agriculture and its economic system is indirectly dependent on the cow. In order to give effect to the policy of the State towards securing the principles laid down in Articles 47, 48 and clauses (b) and (c) of Article 39 of the Constitution, it was considered necessary also to impose total prohibition against slaughter of progeny of cow.”
The Court rejected all arguments on the grounds of fundamental rights under Article 14[32] and Article 19(1)(g)[33] by stating that the context of the need of cattle for Indian Economy holds greater purpose than a mere inconvenience to the butchers, therefore, this law serves the purpose of the general public thus is constitutionally valid.
Conclusion
While the object of the legislation for Article 48 which was to preserve cattle to suit the Indian Economy while promoting animal husbandry differs to a great extent from the Object of Prevention of Cruelty towards Animals which is to prevent inflict unnecessary pain or suffering on animals. The current law holds the butcher and the consumer liable for the slaughter rather than the calf-killer which gives rise to various acts of violence towards the seller or the consumer which in turn fails to facilitate the object of the legislature. The purpose of using Prevention of Cruelty to Animals (Regulation of Livestock Animal Markets Rules) by the Centre is to obtain the authority for the Centre to pass legislation as under Entry 15 of the State List under Article 246 the exclusive power is conferred to the states rather than Centre. The object of the Constituent assembly behind the passing of Article 48 (Earlier Article 32 of the Draft Constitution) was also consistent which was discussed in detail in the paper. Although not explicitly mentioned, Cow as an animal indisputably holds a significant position in Hinduism and is a form of Symbol which is worshipped as the representation of godliness and supreme energy which is substantiated in various Hindu texts such as Srimad Bhagavad Gita, Sri Chaitanya Charitamrita Adi Lila, Rig Veda, Manu Samhita and even indirectly in the Old Testament of the Bible. The applicability and uniformity of the laws passed are also in question as the ban on Cow Slaughter varies geographically as partial, complete and none.
The Constitutional validity of the law is also contestable on various grounds. The application of the directive principles is not proper and the purpose of Article 48 is not served as the methods of farming have changed and cattle are not used in such magnitude for farming as during the time of legislation. Also, the Centre is not vested with the power to pass laws in pursuance of Article 48 and the purpose has been achieved under the garb of prevention of Animal Cruelty. Also, the non-uniformity of the law and the application of Rule 22 (e)(iv) of the Prevention of Cruelty to Animals (Regulation of Livestock Animal Markets Rules) construes a restriction of inter-state trade which goes in conflict with Article 301. Lastly, the fundamental right to trade and choice of one’s food choices which can only be restricted by an enacted law is restricted through a delegated legislation framed by the executive which is unconstitutional. The legislature needs to reconsider the relevancy of Article 48 and whether the object of the article is pertinent to the Agricultural Scenario of the nation. Also, the implementation, the procedures and the scope of the Cow Slaughter ban need to be reviewed. The Scope and authority of the legislative authority should be kept in mind and the uniformity should also be made an essential component while implementing the law, and whether ultimately the law can achieve the objective of the legislation with being in accordance to the fundamental rights and the spirit of the constitution.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
Reference
[1]Suhrith Parthasarathy, Modi Government’s Cattle Slaughter Ban Is Brazenly Unconstitutional ,The Wire (2017), https://thewire.in/143561/modi-cattle-slaughter-ban-unconstitutional/ (Acessed on Jul 23, 2017).
[2]Sandhya Ram, “Ban on Cow Slaughter: The Camouflage of Article 48” Live Law (2017), http://www.livelaw.in/ban-on-cow-slaughter-the-camouflage-of-article-48/ (Acessed on Jul 23, 2017).
[3]Ibid
[4]Anup Surendranath, A constitutional misadventure, Indian Express (2017), http://indianexpress.com/article/opinion/columns/a-constitutional-misadventure-cow-slaughter-gau-rakshak-beef-ban-4679912/ (Acessed on Jul 23, 2017).
[5]Ilaiah, Kancha. 1996. Beef, BJP and Food Rights of People. Economic and Political Weekly (June 15th). (Accessed on Jul 23, 2017).
[6] Jha, D. N.,“The Myth of the Holy Cow”, 2002
[7] Ibid
[8]“Dharmasutras: The Law Codes ofN Ancient India”, Oxford Classics, http://www.ahandfulofleaves.org/documents/Dharmasutras_Olivelle_1999.pdf, Accessed on 11th August.
[9] Ibid
[10] Ibid
[11]Doniger O’Flaherty, Wendy, “The Origins of Evil in Hindu Mythology”, ISBN: 9780520040984
[12]Rule 2(e) states ‘cattle’ as a “bovine animal including bulls, bullocks, cows, buffalos, steers, heifers, and calves including camels”
[13]Full text of “Directive Principles In The Indian Constitution”, https://archive.org/stream/in.ernet.dli.2015.131718/2015.131718.Directive-Principles-In-The-Indian-Constitution_djvu.txt, Accessed on 17.08.17
[14]Anup Surendranath, A constitutional misadventure, Indian Express (2017), http://indianexpress.com/article/opinion/columns/a-constitutional-misadventure-cow-slaughter-gau-rakshak-beef-ban-4679912/ (Accessed on Jul 23, 2017).
[15]Varaha, Swami Bhakti Vedanta, “The Srimad Bhagavad-Gita and the Sacredness of All Cows”, http://www.bhagavad-gita.org/Articles/holy-cow.html, Accessed on 19th August, 2017
[16]Chapter 10, Verse 28
[17]Chapter 17 Verse 166
[18]X.87.16
[19]Chapter 4, Verse 162
[20]Chapter 66 Verse 3
[21] Gandhi, Mohandas Karmchand, “Soul Force: Gandhi’s Writings on Peace”, Page 183
[22] Davis, Janet M, The Gospel of Kindness: Animal Welfare and the Making of Modern America, Page 174
[23]“Ban on Cow Slaughter in Gujarat – An attack on Personal Freedom”, Firstpost, http://www.firstpost.com/politics/ban-on-cow-slaughter-in-gujarat-an-attack-on-personal-freedom-is-religion-creeping-into-our-republic-3364090.html, Accessed on 18th August, 2017.
[24]Anup Surendranath, A constitutional misadventure, Indian Express (2017), http://indianexpress.com/article/opinion/columns/a-constitutional-misadventure-cow-slaughter-gau-rakshak-beef-ban-4679912/ (Accessed on Jul 23, 2017).
[25]“Report of the National Commission on Cattle – Chapter II (17. Legislation regarding ban on Cow slaughter)”. DAHD. Accessed on 10th August, 2017
[26]No Beef Nation, Indian Express, http://indianexpress.com/article/explained/explained-no-beef-nation/, Accessed on 10th August, 2017
[27]HinsaVirodhak Sangh v. Mirzapur Moti KureshJamat (2008) 5 SCC 33
[28]1959 SCR 629
[29] Notwithstanding anything contained in any other law for the time being in force or any usage or custom to the contrary, no person shall slaughter cause to be slaughtered or offer for slaughter any cow, [bull or bullock] in any place in the State of Maharashtra.
[30]Maharashtra Act No. IX OF 1977
[31]State of Gujarat vs. Mirzapur Moti KureshiKassabJamat (2005) 8 SCC 534
[32]The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
[33]All citizens shall have the right (g) to practise any profession, or to carry on any occupation, trade or business
