“Cow slaughter” in India has been one of the most politically and constitutionally debated issue. It has a religious, political, economic and constitutional contention to it. The importance of cow as a holy animal for Hindus has been there from time immemorial. During the age of Gupta Dynasty, slaughter of cow was a sacrilege and was a capital offence. In contrast Muslim community have a custom of sacrificing cow and other cattle on “Bakr Id”. This lends a very sensitive connotation to the issue of cow slaughter making it a tussle between religious majority and minority of the country. This tension has resulted in many riots between these communities even before and after independence. However, this essay will only involve an analysis of the prohibition on cow slaughter from a constitutional law perspective and would thus not consider religion as the courts have rejected arguments based on religion in prohibition of cow slaughter cases. Moreover, relevant Constitutional Assembly debates also precludes any religious connotation[1] to the issue of cow slaughter which will be dealt in length in the next section.
It is also submitted that this constitutional law analysis will be made on economic feasibility of a prohibition on cow slaughter as is envisaged in Article 48 of the Indian Constitution. Article 48, which is there in Part IV (Directive Principles of State Policy) of the Constitution, requires the government to work towards prohibition of cattle slaughter only in specific circumstances for a defined purpose.[2]
Thereafter, taking inspiration from Article 48 and empowered by Entry 15 of List II of Schedule 7 various States have passed laws to prohibit cow slaughter which is either partial or total restriction. These legislations have often been challenged before the Apex Court primarily on grounds of fundamental rights violation. The first such challenge was heard by a five-judge bench of the Supreme Court in Md Hanif Qureshi v. State of Bihar (Hereinafter, Hanif Qureshi)[3].In this case, cow slaughter prohibition laws of the States of Uttar Pradesh, Madhya Pradesh and Bihar were challenged on grounds of Article 19(1)(g) and Article 25 violation. The Apex Court in this case upheld a ban on the slaughter of the cow and her offspring, calves, and other livestock which were ‘milch and draught’. However, the slaughter of those cattle that were ‘non-milch’ and ‘non-draught’ was allowed.[4] This has principally been the position of the Supreme Court on cow slaughter laws. Recently in 2005, this case was overruled by a seven-judge bench in the case of State of Gujarat v Mirzapur Moti Qureshi (Hereinafter, Moti Qureshi).[5] An absolute ban on the slaughter of all types of cattle was held to be tenable under the Constitution.[6] It is precisely this present position that I find problematic as it can be used to pass draconian cow slaughter prohibition laws. This will also entail a compromise on fundamental constitutional tenets. I will thus, be primarily analysing economic viability and constitutional tenability of Moti Qureshi.
Owing to the importance of cow in Indian society, a need to give constitutional protection to cow slaughter was envisaged under present Article 48 which was draft article 38A in the draft Constitution was comprehensively debated in Constitutional Assembly. On one side there were members like Seth Govind Ram who wanted an absolute unrestrictive ban on cow-slaughter. These members focusing on cultural heritage and economic utility of the cow to the agrarian sector and it being a “moving manure factory” wanted a total prohibition on cow slaughter to be incorporated as a Fundamental Right.[7]
This was not possible as Fundamental rights can be ascertained only to human beings. Moreover, members of the constituent assembly were not wanting to attribute any religious flavour to this article. There were some members who were against total prohibition based on its effect on freedom of occupation and food consumption. A middle ground was then worked out which resulted in Article 48 being a part of the DPSP. The State thus cannot enforce a total ban but will endeavour to implement it further “organisation of agriculture and animal husbandry”.[8] Thus reading any sort of religious contention into Article 48 goes against the very spirit of Article 48 as envisaged by the Constitution drafters.
Incorporation of Article 48 in such a manner had left many members of the constituent assembly members displeased because if such prohibition would always mean a total ban on all types of cattle, then in the words of Rev JJM Nichols Roy, it would place a ‘terrible economic burden on the state’. The Constitution makers did not commit to any specific, clear position i.e. whether the prohibition is absolute or qualified. It is this ambiguity that has led to and will lead to an ever-changing jurisprudence of Article 48 as per changing society.
As held by the Supreme Court in Hanif Qureshi[9], any restriction on the slaughter of cow can be executed only to promote the ‘organisation of agriculture and animal husbandry’. A comprehensive reading of Article 48 thus allows a ban on cow slaughter for a specific purpose only and not otherwise.
Moreover, Article 48 also distinguishes between cow and ‘any other cattle’. In Hanif Qureshi, Supreme Court divides the types of Article 48 to apply to three types of livestock which is cow, calves of any cattle and “other milch and draught cattle”. It is submitted that this is a correct interpretation of Article 48 which envisages a prohibition of only these kinds of cattle regardless of their utility. However, in Moti Qureshi, a total prohibition regardless of the kind of livestock was rendered tenable under Article 48 which is clearly a wrong interpretation of Article 48 let alone commercial viability of the same.[10]
It is also submitted that such interpretation of Article 48 in Moti Qureshi of upholding a ban of slaughter of non- milch and non-draught cattle is impractical as it is based on flimsy interpretation of Article 48 that ‘milch or draught’ consists even those non-milch and non-draught cattle falling under the same species and thus not necessarily have to milch or draught. Accordingly, even if the species of a certain animal has the ability to produce milk or help in farm they can be put into ‘milch and draught’ regardless of that animals’ competence. Such interpretation is uneconomic and not purposive as prohibition under Art. 48 must be for agricultural purposes only. Practical interpretation of phrase “milch and draught” would thus mean separate competence of animals and not of species.
Non-milch and non- draught cattle is, not surprisingly, of less utility to agriculturalists and therefore the reasoning in Moti Qureshi w.r.t interpretation of ‘milch and draught’ is untenable. Such frivolous interpretation it is submitted cannot be used to qualify a complete prohibition on slaughter of all livestock.
It is the economic considerations rather than religious which impacts the decision to keep cattle or not.[11] As we see from Constitutional Assembly debates and Supreme Court cases, checking the economic feasibility of such prohibitions becomes indispensable in determining the constitutional tenability of a ban on cow slaughter. Moreover, as the purpose of Article 48 was on commercial deliberations, a scrutiny of economic reasoning in Moti Qureshi has become more important.
Apart from the problematic interpretation accrued by the Court in Moti Qureshi to ‘milch and draught’ cattle analysed in the previous section, there are certain serious flaws in the economic reasoning of the Court as well. The utility of the waste generated by the non milch and non-draught cattle in bio fuel production and controlling insects was considered to indispensable in the majority judgement. The unspecified contribution of non milch and non-draught cattle to agrarian was held to be enough to justify prohibition on their slaughter without any analysis. This economic justification is unreasonable as it was not based on any concrete basis but mere on a mere speculation.
Further a prohibition on mere speculation is not consistent with the economic condition of our country. The judgement in Moti Qureshi blatantly discounts the economic status quo of India. Also, the analysis of the Supreme Court in considering a blanket was from the perspective of Gujarat only while the ramifications of the decision will be nationwide. Even though we are among the fastest growing major economy in the world, a substantial chunk of our population lives below the Global Standards of extreme poverty. Moreover, still more than fifty percent of our population has agriculture as their primary activity. A poor farmer in keeping a non-milch or non-draught cattle will incur losses as these cattle are more of a liability than any asset to him.[12] Moti Qureshi fails to consider this ground reality. Moreover, since the judgement presently is valid law on Cow slaughter in India, it can be utilised to implement a blanket ban on cow slaughter in the country. The economic impact of such a ban on leather, meat market is worrisome and will also affect India’s balance of payments as India is the largest exporter of beef presently. It is in this light it is submitted that ban in Moti Qureshi Judgement from an economic point of view which is the basis of Article 48 is very problematic because the economic merits accruing from a total ban is far less as compared to the disadvantages to the economy.
As has been previously stated only an economic analysis of the total ban is not enough for measuring the constitutional tenability of a cow slaughter prohibition laws passed in furtherance of Article 48. An analysis of the relevant Fundamental Rights with respect to cow slaughter prohibition laws is necessary. It is hereby submitted that the right to freedom of trade under Article 19(1)(g) and Right to food under Article 21 have been examined to construe the fundamental rights scrutiny of absolute cow slaughter ban. The Right to freedom of religion under Article 25 has been ignored as Courts have mostly rejected the arguments based on Article 25 because Article 48 explicitly prohibits any discussion on religion in this context.
Firstly, dealing with 19 (1) (g)[13] , contention against the ban on this ground are largely based on effect of total ban on the livelihood of the owners of butcher houses which will have a direct impact on their jobs. In Hasmattullah v. State of Madhya Pradesh AIR 1996 SC 2076 it was held that a complete ban on slaughter of bulls and bullocks would levy an unreasonable restriction on the fundamental rights of butchers.[14] This argument was accepted in Hanif Qureshi and was the primary cause for not allowing a ban on slaughter of non-milch and non-draught cattle. Moti Qureshi’s position on this right is also problematic. a restriction of Article 19(1)(g) to be valid, it must satisfy the criteria laid down in Article 19(6). Firstly, the restriction on the right has to be ‘in public interest’ and ‘reasonable’ The court by playing with the words tried to get away with tests by claiming that the ban of cattle slaughter is a mere prohibition not a restriction. This it is submitted is in contrast with the terms “draught and milch” in the same judgement. The total ban is not reasonable as is dealt within the economic analysis portion of the essay . A further analysis of reasonability requires a criterion of proportionality to be satisfied. This requires that other options than total ban of any type o cow slaughter must be analysed. It is also submitted that the judgement of Moti Qureshi lacked any such analysis. Moreover, the total ban does not even satisfy public interest bit as it as larger interests of agrarian community must be looked into while considering a total ban on slaughter of cattle which are non-milch and non-draught.
Secondly, the Right to consume food of one’s own choice has been interpreted into Article 21 of the Constitution.[15] India, being a developing economy has a large chunk of its population living in poverty. Beef being comparatively cheap source of meat, provides the poor strata of the Indian society to include meat in their diet. Many of these people can consume meat only once a fortnight. A total prohibition on slaughter of all types of livestock would indeed lead to an absolute refusal of meat to poor people. Therefore, such a blanket ban will not leave these people with any alternate source of meat as beef being a cheap meat is what these people can afford This was a part of the reasoning of the court in hanif Qureshi as well. Moreover, Nicholas Roy has also pointed out in the Constitutional Assembly debates about beef being a staple diet of Hill people in Assam and other places as well. It is in this parlance a blanket ban of all sorts on cattle slaughter is problematic from Article 21 perspective.
As has been critiqued throughout the essay, that the position of law on cow slaughter in Moti Qureshi is bad law and the position before 2005 i.e. Hanif Qureshi judgement should be restored. The economic analysis and fundamental rights discourse coupled with the intention of the Constitution makers in Constitutional assembly debates makes it very clear that the ban on slaughter of non-milch and non-draught cattle is constitutionally untenable. Moreover, allowing such ban can lead to States passing Draconian laws like recently Gujarat passed a law which provides for life imprisonment for cow slaughter. Fundamental Rights and DPSP should be interpreted in such a way that balances both.[16] Thus Article 48 and Article 19(1)(g) and Article 21 should be interpreted harmoniously while considering a challenge to the validity of a cow slaughter law.[17] It is also submitted that a blanket ban on the same will not lead to harmonious interpretation as discussed in previous sections.
Moreover, as worried by some
constitution makers, Article 48 might be used to pass some laws which have a
hidden communal colour to it. Secularism has been held to be part of the basic
structure of the constitution.[18] Any
disturbance in the same has resulted in many riots in the past between the
majority and minority factions. Therefore, the next set of challenge after
Hanif Qureshi’s position is restored is to ensure that there is no misuse of
Article 48 on any other grounds except what is specifically mentioned in the
same. This is essential to secure the basic fabric of Constitution as cow
slaughter is a very sensitive religious issue whose religious flavour has not
been recognised by the Constitution, but it is so inextricably linked to this
issue that any discussion in common parlance is not possible without the
mention of religion.
[1] https://www.thequint.com/voices/opinion/constitution-take-on-cow-slaughter-beef-ban-consumption-arvind-datar
[2] Article 48 of the Constitution of India
[3] Md Hanif Qureshi v. State of Bihar AIR 1958 SC 731.
[4] Id.
[5] State of Gujarat v Mirzapur Moti Qureshi (2005) 8 AIR 534.
[6] Id
[7] Constituent Assembly Debates, November 24, 1948, available at https://indiankanoon.org/doc/1945234/ (Last visited on February 7, 2019).
[8] Article 48 of the Constitution of India
[9] Supra note 3, para 6.
[10] EPW article, A Vaidya Nath
[11] Id
[12] Hanif Qureshi , para 39-40.
[13] Art. 19(1)(g) of the Constitution of India
[14] Hasmattullah v. State of Madhya Pradesh AIR 1996 SC 2076
[15] Art. 21 of the Constitution of India
[16] Minereva Mills v Union of India
[17] Oxford Hand Book of the Indian Constitution, Gautam Bhatia
[18] S R Bommai v Union of India
This article is written by Gaurav Karwa.
Disclaimer: This article is an original submission of the Author. Lex Insight does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns. This article is a part of the 1st National Essay Competition, 2019.
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