By: Shalvi Singh
Cow slaughter finds a special mention in the Indian Constitution under Article 48 which specifically obligates the State to take steps towards prohibiting the slaughter of “cows and calves and other milch and draught cattle”. However, interestingly, it omits other bovines, seemingly because slaughtering them could not have been quite as profitable for the economy. By revisiting the Constituent assembly debates, it can be clearly inferred that Article 48 was inserted in the Constitution mainly from an economic standpoint, and it was ensured that the language used in the Article did not convey or reflect any religious motivation or sentiment.
By virtue of Entry 15 of the State List under Seventh Schedule of the Constitution, the State Legislatures have been given exclusive powers to make laws regarding the conservation of cattle including the prevention of cow slaughter. Thus, in India, different states have their own legislation which deals with cow slaughter.
Judicial Decisions on Article 48
In Mohd. Hanif Quareshi v. State of Bihar, the constitutionality of cow slaughter laws was first decided by a five-judge Constitution bench of the Supreme Court of India. In this case, the constitutional validity of laws banning cow slaughter in Bihar, Uttar Pradesh and Madhya Pradesh was challenged on the grounds of violation of fundamental rights. The Court held that since cow slaughtering was not mandatory under Islam, its practice did not conflict with the right to freedom of religion as granted under Article 25 of the Constitution. On the question of the right to freedom of trade under Article 19(1)(g), the Court considered the utility of cows as the measure of the justifiability of the statutes prohibiting cow slaughter. The Court though was of the view that a total ban on the slaughter of buffaloes and bulls after they ceased to be capable of yielding milk or working as draught cattle would be invalid, the same could actually hold good for cows of ‘all ages’. Hence, in the Court’s opinion, the total ban on cow slaughter was not violative of Article 19(1)(g) of the Constitution.
The Court gave economic reasons for arriving at its conclusion, but one fails to understand as to how only cows cannot be a burden after they stop yielding milk. This discrepancy in Court’s reasoning only seems to validate what was long anticipated by Syed Muhammad Sa’adulla during one of the Constituent Assembly debates as he feared that Article 48 could be used by provincial governments to ban cow slaughter on religious reasons rather than economic grounds. This was in fact made true in the case of Municipal Corporation of the city of Ahmedabad v. Jan Mohammed Usmanbhai, where the Supreme Court directed the slaughterhouses to remain closed on important days of Hindu worship, thereby interpreting Article 48 for purely religious considerations.
Later in 2005, a seven-judge bench of the Supreme Court in State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat overruled the decision given in the Hanif Quareshi case. The Court held that legislation putting a total ban on cattle slaughter, without any regard to its utility, shall be valid. The Court took a divergent stance by stating that socio-economic conditions in the country had changed from what had existed when the judgment in Hanif Quareshi was passed. The Court thus opined that Article 48 of the Constitution could not be interpreted to mean as not giving protection to those cattle which were not useful, and hence, even ‘useless’ cattle were not to be treated as a burden on state resources.
Contentious Points in Moti Kureshi
The Moti Kureshi judgment ignored the fact that most cattle deaths were a result of disease and neglect by the owner and not of deliberate killing. The Court put an unwarranted amount of emphasis on the fundamental duty of a citizen to have compassion for living creatures (as laid down in Article 51A(g)) and failed to address the question of livelihood of butchers and the larger issue of diversity. The Court held that the provisions of the Act prohibiting cow slaughter did not violate the right of butchers under Article 19(1)(g) as they were free to sell those animals which were not covered under the Act.
To make matters worse, the court held that “Beef contributes only 1.3% of the total meat consumption pattern of the Indian society. Consequently, a prohibition on the slaughter of cattle would not substantially affect the food consumption of the people.” The Court made an unconvincing attempt to further defend its decision by stating that the words “milch and draught cattle” had been used in the Article not for determining their usefulness but for differentiating between other cattle, such as goat and sheep.
It is important to note here that in Kesavananda Bharati v. State of Kerala, the Supreme Court had held that fundamental rights and directive principles are complementary to each other and they supplement each other in the establishment of a welfare state. But, in Moti Kureshi, the Court was of the view that post the decision in Kesavananda Bharati, “the restriction which can be placed on the rights listed in Article 19(1) are not subject only to Articles 19(2) to 19(6); the provisions contained in the chapter on Directive Principles of State Policy can also be pressed into service and relied on for the purpose of adjudging the reasonability of restrictions placed on the Fundamental Rights.” This view raises an important question that whether in order to facilitate the implementation of a directive principle, the fundamental right of a person can be abridged.
The Court in Hanif Quareshi had opined that a total ban on the slaughter of useless cattle would result in the drain of nation’s cattle feed, thereby depriving the useful cattle of nourishment, and would also adversely affect the occupation and business of the butchers. It had also held that “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, the protection provisions of Chapter III will be a mere rope of sand.” Thus, putting a total ban on cattle slaughter surely violates the right of butchers under Article 19(1)(g) and such a move cannot be in the interest of the general public.
In the aftermath of Moti Kureshi judgement, draconian laws like the Madhya Pradesh Gau Vadh Pratishedh (Sanshodhan) Act, 2012 and the Maharashtra Animal Preservation (Amendment) Act, 1995 were passed. These laws apart from banning the slaughter of cows, bulls, bullocks and ‘other cattle’, also impose heavy fine and punishment for consuming beef. Though the Moti Kureshi judgment upheld the ban of cow slaughter and its progeny, it never implied that the possession of beef would also be unconstitutional as it may happen that the beef may have been imported from some other state or country where cow slaughter is permitted. The above-mentioned legislations therefore have gone a step further by making the possession of beef (even if the cattle were slaughtered outside the state) illegal. Moreover, the burden of proof is on the accused. This obviously exceeds the interpretation of Article 48 as the latter only requires the State to prohibit cow slaughter and not beef consumption.
After examining the judicial decisions on the validity of various anti-cow slaughter laws, it can be concluded that the total prohibition of slaughter of cow and its progeny is valid under the Constitution. Pandit Thakur Dass Bhargava, during one of the Constituent Assembly debates, had remarked: “I do not want that, due to its [Article 48] inclusion in the Fundamental Rights, non-Hindus should complain that they have been forced to accept a certain thing against their will.” Though presently, Article 48 has not been made a fundamental right, yet nonetheless, through the interpretation done by the Apex Court it seems that people are being forced to accept something that is against their will. The Moti Kureshi judgement has opened doors for much draconian anti-cow slaughter legislation. These legislations are a clear case of religious majoritarianism as they are being passed mostly for electoral gains on implausible grounds of religious faith.
It diverges from the intention which the Constitution-makers had while inserting Article 48 in the Constitution. Such extended interpretation being given to the provision laid down by the lawmakers is a worrisome matter. Thus, in the greater interest of the country and to prevent aggravation of social disharmony, it is necessary that the Supreme Court reviews its decision in the Moti Kureshi case.
 Constitutional Assembly Debates 24 November 1948, vol 7 (hereinafter, ‘Constituent Assembly Debates vol 7’) http://parliamentofindia.nic.in/ls/debates/vol7p12.htm
  AIR 731 (SC).
 Shraddha Chigateri, “Negotiating the ‘Sacred’ Cow: Cow Slaughter and the Regulation of Difference in India” (Academia.edu) http://www.academia.edu/929980/Negotiating_the_SacredCow_Cow_Slaughter_and_the_Regulation_of_Difference_in_India
 Constituent Assembly Debates vol 7 (n 2).
  AIR 1205 (SC).
  8 SCC 534 (SC).
 A Vaidyanathan, “Cow Slaughter Ban and the Welfare of Cattle” (2015) 50 Economic & Political Weekly http://www.epw.in/system/files/pdf/2015_50/48/PE_L_48_281115_A_Vaidyanathan.pdf
  AIR 1461 (SC).
 Maharashtra Animal Preservation (Amendment) Act 1995, s 5D.
 ‘Kill the man, he ate that cow’ (Ourstories) http://www.ourstories.org.in/kill-the-man-he-ate-that-cow/
 Constituent Assembly Debates vol 7 (n 2).
 Arjun Sheoran, ‘In Defence of The Beef Eater’s’ (Arjun Sheoran’s Musings, 4 January 2012) http://www.arjunsheoran.com/2012/01/in-defence-of-beef-eaters-questioning.html
 Arvind K Abraham, ‘The Holy Cow: Anti Cow Slaughter Laws & The Constitution’ (CLS Blog, 23 November 2013) https://wbnujscls.wordpress.com/2013/11/23/the-holy-cow-anti-cow-slaughter-laws-the-constitution/
(Shalvi is a student at the West Bengal University of Juridical Sciences, Kolkata.)