The Judiciary’s Views On Anti-Cow Slaughter Laws Are Thus

Lately, the issue of beef consumption has occupied a lot of space in the mainstream media discourse. Some media persons have been alleging that under the current Modi government, a curtailment of civil liberties and Fundamental Rights is underway with bans on cow-slaughter in various states of the country.

During the Eidul Azha celebration last month, the Haryana police attracted some flak over their rather clumsy attempts to ensure that Haryana’s anti-cow-slaughter legislation was followed in letter and spirit. On the other hand, the propensity towards vigilante justice shown by ‘cow vigilantes’ has been trenchantly criticised by the Prime Minister himself.

To my mind, vigilante behaviour on the part of the so-called Gaurakshaks should not be tolerated at all. Ultimately, it is up to individual states to ensure that they follow up qua the suggestion of the Prime Minister which was to prepare dossiers on these anti-social elements masquerading as ‘Gau-Rakshakas’.

Having said all of this, we would do well to not fall prey to the propaganda of some commentators who seem to be telling us that there is something deeply unconstitutional and anti-Muslim and anti-Fundamental Rights and downright illiberal about banning cow-slaughter. The purpose of this article is to show that the ban on cow-slaughter imposed by various states throughout the country is in line with the letter and spirit of the Constitution, as explained by the Supreme Court of India over the past few decades. For the purpose of this article, I would not like to go into the various Writ Petitions that are sub-judice before the Supreme Court and myriad High Courts, whereby anti-cow-slaughter legislation has been challenged. In this article, I would try and examine the subsisting legal and Constitutional provisions on this issue, as explained by the Apex Court, in judgements that stand as authoritative precedent today.

Starting with article 48:

First and foremost, it would be instructive to read Article 48 of the Constitution of India which can be found in Part IV of our Constitution:

“48. 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”

Now, some may argue that Part IV of the Constitution is not enforceable per se and hence, this provision is not as important as the Fundamental Rights contained in Part III of the Constitution. Here, it might be apposite to cite certain observations made by the Hon’ble Justice Chandrachud in the celebrated Minerva Mills (AIR 1980 SC 1789) case, speaking for a majority of judges (4 out of a total bench strength of 5) :

“We promised to our people a democratic polity which carries with it the obligation of securing to the people liberty of thought expression, belief, faith and worship; equality of status and of opportunity and the assurance that the dignity of the individual will at all costs be preserved. We, therefore, put Part III in our Constitution conferring those rights on the people. Those rights are not an end in themselves but are the means to an end, The end is specified in Part IV.”

A bare reading of this judgement would make it clear that the Fundamental Rights guaranteed under Part III have to be read in harmony with the Directive Principles of State Policy which have been laid down under Part IV of the Constitution. The Fundamental Rights guaranteed under Part III are the means while the Directive Principles of State Policy are the ends which the Fundamental Rights are meant to achieve. It is further submitted that after this judicial pronouncement made in 1980, no interpretation can be made qua any of the rights guaranteed under Part III of the Constitution which militates against the clear and express language of Article 48.

Is any community exempt on religious grounds?

Furthermore, the question of whether Muslims should be exempted from the operation of anti-cow-slaughter legislation on purely religious grounds, has been dealt with by a Constitution Bench of the Hon’ble Supreme Court of India in Mohd. Hanif Qureshi and Others v. State of Bihar (AIR 1958 SC 761) in the following terms:

“No reference is made in the petition to any particular Surah of the Holy Quran which, in terms, requires the sacrifice of a cow. All that was placed before us during the argument were Surah XXII, Verses 28 and 33, and Surah CVIII. What the Holy book enjoins is that people should pray unto the Lord and make sacrifice...It is therefore, optional for a Muslim to sacrifice a goat for one person or a cow or a camel for seven persons. It does not appear to be obligatory that a person must sacrifice a cow... While the petitioners claim that the sacrifice of a cow is essential, the State denies the obligatory nature of the religious practice. The fact, emphasised by the respondents, cannot be disputed, namely, that many Mussalmans do not sacrifice a cow on the Bakr Id Day...We have, however, no material on the record before us which will enable us to say, in the face of the foregoing facts, that the sacrifice of a cow on that day is an obligatory overt act for a Mussalman to exhibit his religious belief and idea. In the premises, it is not possible for us to uphold this claim of the petitioners.”

The most recent pronouncement of the Apex Court in this regard has been made in State of Gujrat v. Mirzapur Moti Kassab Jamat & Ors., AIR 2006 SC 212. In the aforementioned matter, an association of butchers had challenged the provisions of the Bombay Animal Preservation (Gujarat Amendment Act) of 1994, whereby the State Government of Gujarat imposed a blanket ban on the slaughter of cows, calves, bulls and bullocks irrespective of age or usefulness or lack of the same for agricultural purpose. This legislation was more stringent than the one challenged in the judgement cited above and went so far as to impose a blanket ban on the slaughter of the whole of the ‘Govamsha’. The majority judgement was delivered by the then Hon’ble Chief Justice of India RC Lahoti. The salient conclusions covered by the learned judge in his erudite judgement are as follows:

1. Directive Principles of State Policy including Articles 48A and 51G also impose a solemn obligation upon the State to enact laws to prohibit the slaughter of cows and their progeny:

The Learned Judge first quotes Articles 48, 48A and 51G verbatim and goes on to conclude as follows:

“By enacting Clause (g) in Article 51-A and giving it the status of a fundamental duty, one of the objects sought to be achieved by the Parliament is to ensure that the spirit and message of Articles 48 and 48A is honoured as a fundamental duty of every citizen. The Parliament availed the opportunity provided by the Constitution (Forty-second Amendment) Act, 1976 to improve the manifestation of objects contained in Article 48 and 48-A. While Article 48-A speaks of "environment", Article 51A(g) employs the expression "the natural environment" and includes therein "forests, lakes, rivers and wild life". While Article 48 provides for "cows and calves and other milch and draught cattle", Article 51-A(g) enjoins it as a fundamental duty of every citizen "to have compassion for living creatures", which in its wider fold embraces the category of cattle spoken of specifically in Article 48.”

1. A ban on the slaughter of cows and their progeny would not amount to a restriction upon the right of citizens of this country including butchers to practise any trade or occupation under Article 19 (1) (g) of the Constitution: “...The ban is not on the total activity of butchers (kasais); ...It is not that the writ petitioner-respondents survive only by slaughtering cow progeny. They can slaughter animals other than cow progeny and carry on their business activity. In so far as trade in hides, skins and other allied things (which are derived from the body of dead animal) are concerned, it is not necessary that the animal must be slaughtered to avail these things...

“...We hold that though it is permissible to place a total ban amounting to prohibition on any profession, occupation, trade or business subject to satisfying the test of being reasonable in the interest of the general public, yet, in the present case banning slaughter of cow progeny is not a prohibition but only a restriction”

1. The Learned Court invoked the Hanif Qureshi judgement cited above to conclude that a ban on cow-slaughter could not be upheld on religious grounds. In this view of the matter, if one were to summarize the points emerging from a discussion of the judicial authorities in question, they would be as follows:
2. The Supreme Court, in its latest judgement as well as in judgements which have been delivered in the early part of its history, has consistently stated that in the absence of any religious injunction to the Muslim community in the Quran or for that matter in any of their Holy Book (s), it is impossible to exempt them from the operation of anti-cow slaughter legislation on religious grounds.
3. According to the latest law laid down by the Hon’ble Supreme Court, it would not amount to an unreasonable restriction upon the individual freedom guaranteed to all citizens of India under Article 19 (1) (g) of the Constitution to carry on any trade or occupation, if a blanket ban were to be imposed upon the slaughter of ‘Govamsha’.
4. The individual freedoms guaranteed under Part III of the Constitution cannot be read in isolation from other provisions of the Constitution including the provisions laid down under Part IV.

All of this does not mean however, that people do not have the right to voice their displeasure at anti-cow slaughter laws. If there are persons who are still aggrieved by various state governments-BJP or non-BJP-which might have imposed a partial or total ban on the slaughter of ‘govamsha’, Indian democracy gives them the right to campaign against such laws within the bounds of the Constitution, but not the right to spread misinformation.