What the Constitution Says on the Curious Case of the ‘Holy Cow’

Arvind Datar explains the Constitution’s take on cow slaughter.

(Photo: The Quint)

The Centre on May 26 banned the sale and purchase of cattle from animal markets for slaughter, a move that is expected to hit exports and trade of meat and leather. The notification met with protests across the country. In April 2017, senior advocate Arvind Datar weighed in on where the Constitution stands on the issue of the ‘holy cow’.

Recently, Gujarat amended its Gujarat Animal Preservation Act, 1954 to prescribe life imprisonment for those found guilty of slaughtering cows, calves, bulls and bullocks.

Interestingly, during the Constituent Assembly debates, Pandit Thakur Dass Bhargava cited Mahatma Gandhi, in whose opinion, cow slaughter and manslaughter were two sides of the same coin (CAD 24 November 1948). Indeed, the amendment brought forth by the Gujarat government is a true reflection of Mahatma Gandhi’s opinion.

In fact, there are many states in India which have banned cow slaughter, either partially or in total, with strict penal consequences attached to it. This is done by resorting to Article 48, which is a Directive Principle of State Policy.

However, without mixing religion and politics, and especially when there is no special ecclesiastical jurisdiction for the Supreme Court, it is imperative to study the constitutionality of a total ban on cow slaughter, if at all envisaged under Article 48, and its effect on citizens’ rights under Part III of the Constitution.

The clamour for banning cow slaughter is increasing as it is a politically attractive position. However, the extent of the total prohibition on any kind of cow slaughter requires careful examination of the relevant constitutional provisions.

Recently, the Bombay High Court judgement upheld amendments to the Maharashtra Animal Preservation Act, 1976 to strike down sections 5D and 9B of the Act. Both these sections were struck down. They read as follows:-

• 5D. No person shall have in his possession flesh of any cow, bull or bullock slaughtered outside the State of Maharashtra.
• 9B. In any trial for an offence punishable under sections 9 or 9A for contravention of the provisions of this Act, the burden of proving that the slaughter, transport, export outside the state, sale, purchase of possession of flesh of cow, bull or bullock was not in contravention of the provisions of the Act shall be on the accused.

The appeals against this judgement are pending in the Supreme Court.

Also Read: Meat is Dear to Kerala, State Tops in Cow Slaughter

(Photo: Reuters)

Applicable Constitutional Provisions

The imposition of ban on cow slaughter is based on Article 48 of the Constitution of India which reads as follows:

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.

This article was based on Article 38A of the Draft Constitution. The State enactments prohibiting cow slaughter is based on Entry 15 of List II of Schedule VII of the Constitution which reads as follows:

“Preservation, protection and improvement of stock and prevention of animal disease; veterinary training and practice.”

It is also suggested that the provisions on cow slaughter are relatable to Entry 17 of List III of Schedule VII of the Constitution, which deals with prevention of cruelty to animals.

Constituent Assembly Debates on Article 38A of the Draft Constitution

The Constituent Assembly debated Article 38A extensively on 24 November 1948. Pandit Thakur Dass Bhargava gave a lengthy speech on the importance of cow in the Indian economy. He said:

A cow, whether it be a milch cow or not, is a moving manure factory, and so, as far as cow is concerned, there can be no question of it being useless or useful. It can never be useless.

Though there was a lengthy debate on the contribution of the cow to the Indian economy, primarily in terms of supply of milk etc., there was no clear conclusion on whether the ban on cow slaughter was a complete ban or not. In fact, Seth Govind Das moved an amendment on the same day calling for prohibition of slaughter of any cow, be it useful or useless. This amendment was negatived.

Further, during the last stages of the Constituent Assembly Debates, on 19 November 1949, Prof Shibban Lal Saksena, while speaking on the new Constitution of India, observed:

I wish the ban on the slaughter of cow, which is the Kama Dhenu – the mother of plenty, had been made absolute, and given a place in the Fundamental Rights.

Also Read: Gujarat Guv Approves Bill Carrying Life Term for Cow Slaughter

On the other hand, Rev JJM Nichols Roy, on the same day, made the following comment:

“…Here is a provision regarding the prohibition of cow slaughter. I was wondering whether this provision would mean the prohibition of cow slaughter at all times and of every kind of cows and cattle… 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…”

Neither Dr Ambedkar nor Pandit Thakur Dass Bhargava replied to the above observations. Thus, the Constituent Assembly Debates do not give us a clear picture on whether Article 48 envisages a complete ban on cow slaughter or not.

(Photo: iStock)

Supreme Court on Article 48

The first major litigation involving the interpretation of Article 48 was decided by the Supreme Court in 1958 in MH Quareshi v State of Bihar AIR 1958 SC 731, wherein Pandit Bhargava was an amicus curiae.

This is indeed an interesting case because in para 6 of the judgement, Chief Justice SR Das observed that the protection recommended by Article 48 is confined only to cows and calves and to those animals which are presently or potentially capable of yielding milk or of doing work as draught cattle. However, in para 44, the Supreme Court held as follows:

…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…

It further added:

(ii) that a total ban on the slaughter of she-buffaloes or breeding bulls or working bullocks 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.

Also Read: Not Wholly Cow, Mostly Bulls Are Slaughtered For Meat in India

In Hasmattullah v. State of Madhya Pradesh AIR 1996 SC 2076, a bench of three-judges held that a total ban on slaughter of bulls and bullocks would impose an unreasonable restriction on the fundamental rights of butchers.

Significantly, the Supreme Court noted the various articles which supported the view that bulls and bullocks continue to be useful even after they became aged. The article referred to in the 1996 judgement, points out that each aged cattle can give up to 3000 kgs of dung and 2000 litres of urine which can be used to generate substantial quantity of bio-gas, organic fertilisers and organic pesticides!

The Supreme Court also deprecated the repeated attempts made by the State of Madhya Pradesh to nullify the decision of the Supreme Court and held that there was no reason to reconsider the decision in MH Quareshi (supra).

The 1996 decision concluded that prohibiting the slaughter of “bull or bullock” would be an unreasonable restriction of the fundamental rights of butchers. Consequently, the total ban on the slaughter of cows, calves of cow and calves of she-buffaloes was upheld.

State of Gujarat vs Mirzapur Moti Kureshi Kassab Jamat

Almost ten years later, a seven-judge bench of the Supreme Court, in State of Gujarat v Mirzapur Moti Kureshi Kassab Jamat (2005) 8 SCC 534, held that a species of cattle which is milch or draught for a number of years is to be included within the expression “cows or calves”.

It was also held that on ceasing to be milch or draught, the cattle cannot be pulled out from the category of “other milch and draught cattle”. Accordingly, it partially overruled the decision in MH Quareshi case.

It is submitted that this view is incorrect. Milch or draught cattle which has ceased to be useful for these purposes cannot continue under the same category. If the intention was to prohibit the slaughter of all cows and buffaloes, it would have been said so under Article 48 itself. The correct interpretation of Article 48 is the one provided by the Supreme Court in para 6 of MH Quareshi (supra). Further, when there is a complete ban on slaughter of all cattle, it violates Article 19(1)(g). As rightly pointed out by the Supreme Court in MH Quareshi.

The directive principles cannot override this categorical restriction imposed on the legislative power of the State. A harmonious interpretation has to be placed upon the Constitution and so interpreted it means that the State should certainly implement the directive principles but it must do so in such a way that its laws do not take away or abridge the fundamental rights, for otherwise protecting provisions of Chap. III will be “a mere rope of sand”.

Also Read: BJP’s Hindutva Icon VD Savarkar on Muslims, Intercaste Love & Cows

(Photo: Reuters)

Constitution Does Not Envisage a Blanket Ban on Slaughter of Cows

It is submitted that it is most unsafe to rely on passages that support one point of view when there is sufficient literature for the other view. Indeed, it is often pointed out that the conditions in which the aged cattle live are extremely cruel. An artificial ban also leads to large scale smuggling of cattle.

It is clear that the Constitution, in Article 48, does not call for a total ban of cow slaughter but only refers to slaughter of “milch and draught cattle”. The observations in Mirzapur Moti Kureshi (supra) that this expression would apply even to cattle that have stopped giving milk or cannot be used to pull loads may not be correct. The objective of Article 48 was to ensure that milk-yielding cattle should not be allowed to be slaughtered.

Thus, the Constitution does not envisage a complete ban on slaughter of cows but only seeks to prevent or prohibit the slaughter of a particular class of cattle. To completely eliminate the consumption of beef would be unconstitutional as it would deprive sizeable section of the society of their right to consume meat of their choice.

If various types of meat are permitted to be consumed, the total ban on beef was not proper. One must not confuse a ban on slaughter of milch or draught cattle with a total ban on the consumption of beef.

(The author is a Senior Advocate practicing in the Supreme Court. The author acknowledges the assistance of Rahul Unnikrishnan, Advocate, in completing this article. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)

(The article was first published on BAR & BENCH)