Constitution Countenances the Ban on Cow Slaugher

By: Parmanand Pandey, Advocate, Supreme Court

For the last nearly a fortnight, the Central Government’s new Prevention of Cruelty to the Animals Rules have led to heated debates and agitations in many states particularly by those, who wish to fish in the troubled waters as they have their own axes to grind. Rules do not say anything about beef eating or not eating but effectively prohibit the sales of cows and buffaloes for slaughter at animal markets.

While the Kerala High Court out-rightly dismissed the Petition filed against the implementation of Rules, the Madras High Court has given four weeks’ time to the Central government to clarify the doubts raised by the Petitioners. Thus, apart from political turmoil, legal and constitutional fault lines have also been opened.

Cow slaughter has always been an emotive issue. The matter was discussed and debated at great length in the Constituent Assembly. Many freedom fighters had promised that the first goal of the Swadeshi government would be to impose a ban on cow slaughter.

In 1940, a special committee of the Congress had also opined for the protection of cows. In fact, Mahatma Gandhi had once declared that a prohibition on cow slaughter was more important to him than swaraj itself.

The proponents of the cow protection law in the Constituent assembly included Seth Govind Das, Pandit Thakurdas, Shibban Lal Saxena, Ram Sahai and Raghu Vira among others. Just a few days before India got Independence Babu Rajendra Prasad, who later became the President of India, wrote a letter to Pandit Jawahar Lal Nehru saying that “I have been flooded with postcards, letters, packets and telegrams making demand that cow slaughter should be stopped by legislation. The Hindu sentiment in favour of cow protection is old, widespread and deep-seated. The Hindu feeling on account of recent happenings is very much agitated and this movement… is bound to gain strength more rapidly than we can imagine.”

In fact, it was the religious argument that rooted the ban on cow slaughter in the reverence attached to the cow in the Hindu culture. The economic argument was based on the multifarious utilities of the cow in an agrarian economy – the medicinal value of urine, usefulness of cow dung, hides and bones etc.

Pandit Thakurdas, a prominent leader from Punjab and a vociferous advocate of the ban on cow slaughter opined that ‘the best way of increasing the production (of food crops) is to improve the health of human beings and breed of cattle, whose milk and manure and labour are most essential for growing food. Thus, the whole agricultural and food problem of this country is nothing but the problem of improvement of cow and her breed.’ On religious plank he emphasised that, ‘our ancient sages and rishis, realising her (cow’s) importance, regarded her as very sacred. Here in this land Lord Krishna was born, who served cows so devotedly that to this day, in affection he is known as ‘Makhan Chor.’ In all, they brought forth two strands of argument – religious and economic.

A Muslim member of the Constituent assembly Zahir-ul-Hasan Lari also supported the ban on cow slaughter and said, ‘If the House is of the opinion that slaughter of cows should be prohibited, let it be prohibited in clear, definite and unambiguous words… I submit that this is the proper occasion when the majority should express itself clearly and definitely.’

The ban on cow slaughter was thus put under Article 48 of the Constitution, one of the Directive Principles, which would guide the State in policy making and not as the part of the enforceable and justiciable fundamental rights. Needless to say, that fundamental rights inhere only in human beings not in the animals.

Article 48 of the 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.’

There is no doubt that Article 48 was adopted as a compromise formula and the many members of the Constituent Assembly like Shibban Lal Saxena vehemently opposed to such back door tactics and told the Drafting Committee of not being ashamed of providing for the ban on the cow slaughter frankly and boldly.

Way back in 1958 in ‘Mohd. Hanif Qureshi and others vs State of Bihar this issue was agitated before the Supreme Court. Bunch of petitions were filed against the Bihar Act, which prohibited the slaughter of cattle. The petitioners were Kasais (butchers) who contended that the Act infringes their religious rights to slaughter the cow(s) on Bakr-e-Eid and also hits at their profession. The Court ruled that after giving careful and anxious consideration to the pros and cons of the problem and in view the presumption in favour of the validity of the legislation, we feel that we must approach and analyse the problem in an objective and realistic manner. So, we have reached the conclusion (i) that a total ban on the slaughter of cows of all ages and calves of cows and calves of she-buffaloes, male and female, is quite reasonable and valid and is in consonance with the directive principles laid down in Article 48; (ii) that a total ban on the slaughter of she-buffaloes or breeding bulls or working bullocks (cattle as well as buffaloes) as long as they are as milch or draught cattle is also reasonable and valid; and (iii) that a total ban on the slaughter of she- buffaloes, bulls and bullocks (cattle or buffalo) after they cease to be capable of yielding milk or of breeding or working as draught animals cannot be supported as reasonable in the interest of the general public.

The judges said that the ban on slaughter of she-buffaloes, breeding bulls and working bullocks (cattle and buffalo) which are useful is reasonable but of those which are not useful is not valid. The question as to when a she-buffalo, breeding bull or working bullock (cattle and buffalo) ceases to be useful and becomes useless and unserviceable is a matter for legislative determination. It is, therefore, not possible to apply the doctrine of severability and uphold the ban on the slaughter of she- buffaloes, breeding bulls and working bullocks (cattle and buffalo) which are useful as milch or breeding or working animals and strike down the ban on the slaughter of those which are useless. The result is that we uphold and declare that the slaughter of cows of all ages and calves of cows and calves of buffaloes, male and female, is constitutionally valid and slaughter of she- buffaloes, breeding bulls and working bullocks (cattle and buffalo), without prescribing any test or requirement as to their age or usefulness infringes the rights of the petitioners under Article 19 (1) (g) and is to that extent void.

Later, the Supreme Court in State of Gujrat vs Mirzapur Moti Quereshi Kasab Jamat (2005) further elucidated the definition of other cattle by  observing that,  ‘having specifically spoken of cows and calves, the framers of the Constitution  chose not to catalogue the list of other cattle  in Article 48 and felt satisfied by employing a general expression other milch and draught cattle, which in their opinion any reader of the Constitution would understand in the context of words ‘cows and calves’.

There is hardly any doubt that the thousands of cattle were being smuggled to Bangladesh via Nepal from India for their slaughtering under the garb of trade. These rules framed under the Prevention of Cruelty to Animals, which allows sale of cattle from one farmer or breeder to other will deal with severe blow to the beef traders. And, therefore, naturally they will make hullaballoo against the new rules.

Legal aspect is absolutely clear in view of the catena of judgments of the Supreme and other High Courts but will the government be able to withstand the political onslaught that it is going face in the Monsoon session of Parliament is to be seen.

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