Guest post by MARIYA SALIM
The debates and demands around the issue of the prohibition of cow slaughter in India are a highly volatile, political and contentious subject, with the cow being revered as sacred by most Hindus in the country. Although almost all the proponents calling for a national legislation for a total ban on slaughter of cow and other cattle today look to the directive principles of state policy and use an economic and agrarian argument to defend their demand, it is interesting to note that the constituent assembly debates around this directive principle clearly indicate that it was as much a religious issue, reasoned on science and agriculture instead however, for some of those who wanted it to be an integral part of the Indian Constitution.
After much debate and deliberation in the Constituent Assembly and a demand from a few members of the assembly, to include a total ban on the slaughter of cows as part of fundamental rights in the Indian Constitution, a compromise was reached and the protection of the revered bovine found place in the Directive Principles of state policy, which incorporates this Hindu sentiment in a somewhat guarded and hesitant form. Most notable among the members raising the issue were Pandit Thakur Dass Bhargava and Seth Govind Das. Syed Muhammad Sa’adulla, another member argued that he would rather have the insertion on the protection of cow slaughter as a religious ground, as, the argument on economic grounds will ‘create a suspicion in the minds of many that the ingrained Hindu feeling against cow slaughter is being satisfied by the backdoor’ and he went on to give facts and figures on how cow slaughter is not as bad ‘as it is being made out to be’ from the economic point of view. 
The inclusion of cow protection under directive principles rather than fundamental rights and the current wordings, which are science based rather than reflective of Hindu religious sentiment was upon the insistence on Dr Ambedkar, though scholars like TN Madan argue that it was owing to the threat by Nehru to resign, that this ban was given a secular character. As of today Art 48 of the Indian Constitution reads as follows:
‘Organization 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’.
The cow protection movement in India consisted of campaigns to prohibit the slaughter of cattle, whether by legislative ban, persuasion, or violence. The movement was initiated by Swami Dayanand Saraswati, the founder of the Arya Samaj in 1881. It is interesting to note that even then an anti–Muslim sentiment seemed integral to the movement, as early as the late 1890s. As part of the movement , the pamphlets distributed in the Bombay presidency depicted a Muslim butcher with a long knife and a villainous expression eyeing to murder a cow, on which were inscribed the names of Hindu deities and which was being milked by a ‘devout looking’ Hindu woman. The issue of cow protection which has of late again been in the headlines has been labelled by scholars like Asghar Ali Engineer as one of the causes furthering communal tensions between the Hindu and the Muslim community, the former worshipping the cow as holy and the latter having no religious compulsions of similar reverence towards it at all. While slaughter of cows is banned in the majority of the Indian States today, a legislation which bans slaughter of bulls, bullocks and buffaloes, which are not held in the same esteem as the cow, is today used by the political right as ‘a victory for cow protection’.
Though twenty four states in India already having some sort of a law either prohibiting or limiting the slaughter cows and other cattle, it is the more recent draconian acts passed by states like Madhya Pradesh, Gujarat and more recently Maharashtra in 2015, criminalizing cow slaughter as a non-bailable offence, that need to be revisited and studied in terms of their constitutionality and of their being violative of the fundamental rights of certain groups of people in the country and being against the very secular spirit of the Indian Constitution.
This essay first looks at the judicial discourse on cow protection by referring to the first Supreme Court judgement, post-independence, on the issue in 1955 to the latest in 2006. It also seeks to study how the directive principle on the ‘Organization of agriculture and animal husbandry’ in this case, has been considered so important, so as to allow a ‘reasonable’ restriction on fundamental rights of some groups, and questions if this restriction really is ‘reasonable’.
This essay also makes the argument that though the politico-legal discourse on cow slaughter in India seems based on an agrarian and economic argument with the utility of cattle at the heart of these debates, the political mobilization using the ‘cow’ as a symbol of unifying a religious group, clearly unmasks this elision of the religious aspects of cow slaughter, with calls being made by political parties time and again to protect ‘mother cow’ specially as elections draw near. Irrespective of which political party, cow protection has been used to garner votes, across party lines. The current political party in power, the Bharatiya Janata Party (BJP) while campaigning for the 2014 national elections evoked reverence for the ‘cow’ using slogans such as ‘save the cow, save the country’, in fact this reverence also found place in its election manifesto, a part of which read as follows:
‘In view of the contribution of cow and its progeny to agriculture, socio-economic and cultural life of our country, the Department of Animal Husbandry will be suitably strengthened and empowered for the protection and promotion of cow and its progeny. Necessary legal framework will be created to protect and promote cow and its progeny.’
Thus, though the prohibition of cow slaughter as a matter of religion is the central theme in the politics of the country today, as elucidated below, its complete absence in the legal discourse and most judicial pronouncements is confusing to say the least.
The Indian Judiciary and Cow slaughter: Fundamental right to livelihood and trade Vs Directive principles of State Policy
In pursuance of the directive presented in Article 48 of the Constitution, a number of states passed laws prohibiting the slaughter of cows and other species of bovine cattle. It is imperative to take a look at Mohd Hanif Qureshi and others v State of Bihar as it was the first case post-independence which dealt with the constitutionality of a ban on the slaughter of cows. The petitioners engaged in the butcher’s trade and its subsidiary undertakings, challenging the Bihar, Uttar Pradesh and Madhya Pradesh statutes prohibiting cow slaughter challenged them on the grounds that these acts infringed upon their fundamental rights, i.e, Art 14, 19(1) (g) and 25 of the constitution. The Supreme Court held that the directive did not intervene with the right to freedom of religion of Muslims (it was not obligatory for Muslims to sacrifice cow) i.e Art 14 it also held that neither was it contrary to Article 25. The judgement here stated that though a total ban on slaughter of cows of all ages as well as that of calves of cows and buffaloes as well as that on bulls, buffaloes and bullocks that were being used for milch and drought was to be upheld, it also reasoned that such a ban on bulls and buffaloes after they reached a certain age would not be reasonable. The court ruled that
‘..a total ban on the slaughter of useless cattle, which involves a wasteful drain on the nation’s cattle feed which is itself in short supply and which would deprive the useful cattle of much needed nourishment, cannot be justified as being in the interests of the general public.’
It also held however that a slaughter of cows of all ages and calves of cows was constitutionally valid. It is important to question then, if the slaughter of cow and other ‘milch and drought’ cattle is prohibited on merely scientific grounds and grounds of ‘usefulness’, why was it that unlike for buffaloes, bulls and bullocks, which could be slaughtered when they ceased to be ‘useful’, this criterion of usefulness was not similarly applied to slaughtering cows? Perhaps the reason lies in the court’s reference to recognizing ‘sentiment’, in this case the Hindu sentiment which holds the cow in great reverence, as one of the many elements to arrive at a judicial verdict on the reasonableness of a restriction. The attempt of the court for justifying this discrimination is ‘indeed a curious bit of reasoning which never faced this question frankly’.
Thus though the court argued that a complete ban on cow slaughter does not violate the right to freedom of religion of the Muslim Community, it did recognize that a complete ban, irrespective of the age of cattle did interfere with their right to trade and livelihood and the judgements for nearly forty years following Mohd Hanif Quareshi and others v State of Bihar reflected this sentiment.
Despite this positive discrimination for the ‘holy cow’, the fact that the court recognized that a complete ban was against “the interest of the general public” in some ways makes it a slightly inclusive judgement, specially when compared to what followed in 2005. A departure from this view was clearly visible in the 2005 State Of Gujarat vs Mirzapur Moti Kureshi Kassab  judgement, authored by Justice R Lahoti, which not only upheld a complete ban on slaughter of cow and its progeny but was very carefully worded to not refer to the ‘hindu sentiment’ even once, basing its judgment on merely, in the opinion of the author, exaggerated scientific grounds (The judgement endorsed a document which read ‘the value of dung is much more than even the famous “Kohinoor” diamond’). And it is this judgement which today forms the backbone of argument for states pushing for a complete ban on cow slaughter and the central government and the right wing Hindu political parties calling for a national ban. They do not take into consideration either the right to livelihood of thousands or the right to food of many Muslims and Dalits who belong to the lower economic groups and chose to eat beef as a cheap source of protein.
Following from the inference from previous judgements that the cow is to be protected from slaughter whether or not it is useful, the Mirzapur Judgement goes further to protect other cattle as well and argues that the framers of the constitution used the words ‘milch and draught’ in terms of functionality, not to determine the usefulness of the cattle, but to differentiate them from other cattle such as goat and sheep, thus the argument that after a certain age bullocks, bulls and buffaloes are fit for neither and hence can be slaughtered does not hold constitutionally true.
‘Milch and draught cattle’ is an expression employed in Article 48 of the Constitution so as to distinguish such cattle from other cattle which are neither milch nor draught.” Referring to cattle which have aged and are thus a drain on farmers and are not useful any more, the honourable court opined that ‘We have to remember: the weak and meek need more of protection and compassion’, and in the same judgement with regard to the right to trade and livelihood of the butchers the judgment read:
“Butchers are not prohibited from slaughtering animals other than the cattle belonging to cow progeny. Consequently, only a part of their activity has been prohibited. They can continue with their activity of slaughtering other animals. Even if it results in slight inconvenience, it is liable to be ignored if the prohibition is found to be in the interest of economy and social needs of the country”.
Thus the adoption of a directive principle, even though it interfered with the fundamental Right to trade and livelihood of an entire section of a community dependent on that trade, was upheld.
The latest judicial pronouncement on the issue has been that in Akhil Bharat Goseva Sangh V State of AP and Ors; Umesh and Ors v State of Karnataka and Ors, in deciding on the constitutionality, partially banning cow slaughter in the states of Andhra Pradesh and Karnataka, where the Supreme Court held that the decision in Mirzapur did not mean that the slaughter of cattle by itself was unconstitutional. But it said that
“the issuance of writ of Mandamus to compel total prohibition of cattle slaughter would only amount to judicial legislation and would encroach upon the powers of the Karnataka Legislature, as held by the High Court, which, in our view, was the right approach made by it. That being the position, we are of the view that the question of declaring total ban on slaughter of cattle cannot be permitted and section 5 of the Act cannot be said to be ultra vires of the Constitution.”
Directive Principles Vs Fundamental Rights
In Mohd. Hanif Qureshi & Ors. Vs. State of Bihar the argument that a law which was enacted to give effect to Directive Principles cannot be seen to violate of fundamental rights was not accepted on grounds 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 protecting provisions of Chapter III will be “a mere rope of sand.”
This understanding was however overruled in the State of Gujarat vs. Mirzapur where the Constitution Bench noted that post the Kesavananda Bharathi vs. State of Keraladecision, under two circumstances a restriction placed on fundamental rights to further directive principles will be held valid: one, if it does not run in clear conflict with fundamental rights and two, it has been ‘enacted within the legislative competence of the enacting legislature under Part XI Chapter I of the Constitution’. It also referred to the seven-Judge Bench decision in Pathumma and Others v. State of Kerala and Ors., to refer to the reasonableness of the restrictions on fundamental rights,and quoting from numerous other judgements concluded that :
“while interpreting the interplay of rights and restrictions, Part-III (Fundamental Rights) and Part-IV (Directive Principles) have to be read together. 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.”
The arguments in favour of a ban against cow slaughter and slaughter of other cattle in this particular case can be what Shraddha Chigateri calls ‘juridical normalization of the ethic against cow slaughter in India’. The author, after a detailed analysis of the Mirzapur Judgement, wonders how far it will stand the test of time as science and technology are ever evolving concepts. Will this Directive Principle of State Policy cease to be the cause of a ‘reasonable restriction’ on the fundamental right to carry out trade and business by the butchers if a new advancement in science will render cattle and fuel etc from a ‘useless’ cattle not as profitable as the honorable bench said it is?
Also, is it within the ambit of the court, not recognizing the food consumption patterns of people belonging to different communities and holding that ‘Desirable diet and nutrition are not necessarily associated with non-vegetarian diet…….. 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’’?
Who are these people who consume the 1.3% beef? It is mostly the socio economically marginalized communities, that is, Muslims and Dalits, who depend on beef as an affordable source of protein. Does this ruling not also violate their basic human right to food and life? The cow is considered sacred by most Hindus, and if one takes into account this Hindu sentiment as the real motivation behind most cow protection debates, hidden however well in the allusion of mere agrarian interests, how does consumption of meat from bulls and bullocks and cattle other than the ‘sacred cow’, specially if such cattle owing to its age has been rendered useless, affect the general ‘public interest’? The question thus that has been fundamental in discussing most of these elucidations is the legitimacy of the extent of legal intervention in this debate against cow slaughter. On what basis can we question the legitimacy of both, the non-interrogation of the Hindu sentiment behind the prohibitions on cow slaughter, as well as the insistent denial of the existence of diversity in food, culture and other modes of being.
Some see a glimmer of hope in Akhil Bharat Goseva Sangh V State of AP and Ors; Umesh and Ors v State of Karnataka and Ors judgement specially when looking to challenge the new laws against cow slaughter being passed in different Indian states. These states, though had previously under the Congress and BJP alike, anyway banned cow slaughter, they have presently have been demanding for an even stricter national ban on slaughter of cow and cow progeny, including bulls, bullocks and even buffaloes since the BJP came to power in 2014. The following section looks at one such state, Maharashtra, and the latest law passed by it on the prohibition on slaughter of cow and other cattle. It attempts to analyse if this law can be challenged, and if it is really fit for purpose?
Maharashtra Animal Preservation (Amendment) Act, 1995
Notwithstanding the Supreme Court judgement in the State Of Gujarat vs Mirzapur Moti Kureshi Kassab case which upheld the complete ban on slaughter of cow and other ‘draught and milch cattle’ in Gujarat, there are states which allow slaughter of cattle, including cows, subject to age and other restrictions, like Assam, West Bengal and Kerala among others. Though legislation on the prevention of the slaughter of cow and its progeny exists in varying forms in twenty four Indian states, this section aims to look at the most recent, stringent law, passed in march 2015 in Maharashtra, amending previous acts, criminalizing cow slaughter with greater punishment than before, increasing the years of imprisonment and fines and calling for a total ban on the slaughter of cows and other cattle in the state. This section aims to look at who suffers the most with these strict laws and whether the extent of criminalization and other aspects of the law are justified, constitutionally and otherwise? And on the basis of these, is a challenge to the law likely to succeed?
According to a news report published in The Hindu, March 5, 2015, Indian States can be classified into five categories in terms of the degrees to which the ban on beef is present in these states through legislations — north-eastern States in India with no restrictions on cattle slaughter at all, the state of Kerala with no law but a caveat present, Tamil Nadu, West Bengal and Assam where slaughter of cattle is allowed with a certificate, Andhra Pradesh, Telangana, Bihar, Goa and Odisha which have laws banning cow slaughter, but allow the slaughter of other cattle with a certificate; and the rest of India which bans the slaughter of all cattle. Thus barring 10 states which allow the slaughter of cows with varying degrees of restrictions, all the other states in India already have laws banning cow slaughter completely.
The Maharashtra Animal Preservation (Amendment) Act, 1995 received presidential assent on March 2 2015, with support of ministers of both the BJP as well as the Congress.
‘The Congress welcomes the President’s assent. This Bill has been pending for long with the President … But care should be taken that this is not used as a political tool to gather support,” – Leader of the Opposition in the Maharashtra Assembly
This law amended the earlier law which banned cow slaughter, to also include a complete ban on the slaughter of bulls and bullocks as well. The law has been termed draconian and non-secular by many because, like many of its predecessors like the law in Gujarat, not only does it ban slaughter of cows, bulls, bullocks and ‘other cattle’ it even makes possession of the flesh of these cattle, even if they were slaughtered outside the state, illegal. Section 5D of the act states:
‘No one shall have in his possession flesh of any cow, bull or bullock slaughtered outside the State of Maharashtra.’
The right of the States to prohibit cow and cattle slaughter and pass legislation based on article 48 of the Constitution, on grounds of protecting agricultural interest etc under list II may justify banning even the possession of beef, which has been procured from that state. Under what rationale, however, can the state ban the possession of beef which has been procured from another state which allows slaughter of cow and other cattle? Why can the people of Gujarat, MP and now Maharashtra not be allowed to even possess or sell beef (meat of bull, bullock or cow) which has not been procured in the state where it is banned to slaughter those animals? When such an import or possession of beef does not interfere with the banning states right to promote agriculture by preventing the slaughter of cow and other cattle within the state, there seems to be no nexus at all between the scope of the prohibition on possession of beef and the purpose of the legislation. Another implication this clause may have is on the fundamental freedom to practice any trade or occupation by a butcher who has lost his livelihood owing to this law and has legally procured beef from a state which allows its sale, to sell it Maharashtra.
This is a stark example of why this law like in other states is reflective more of discrimination with those with communities and groups with differing food habits than the claims it makes of being in tune with ‘scientific organization of agriculture’ and thus needs to be questioned. It is not just banning slaughter of cows and other cattle, but is also regulating the food consumption of people living in that state, legally procuring what constitutes their dietary requirement from a state which does not deem their choice of food as illegal! What makes this law even more draconian is section 7 which gives police the right to enter and search vehicles (transporting cattle) and premises on mere grounds of ‘suspicion’ of the law being violated. The burden of proof as per section 9B of the act is on the accused, essentially meaning that the person accused of even ‘possessing’ beef in his/her home will have to prove that the meat is not of the animals which are protected by this law. It does not stop here and goes further to make this offence of slaughter, transportation to another state with the intent of slaughtering or even possession of beef a non-bailable offence punishable by up to five years in prison and a fine up to ten thousand rupees! Haryana joins the list of states like Maharashtra with even more stringent punishments, proposing a ten year imprisonment for the offence of cattle slaughter.
One is prompted to ask, if protection of cow and its progeny is the aim of the act, why is a similar punishment not accorded to the animal welfare organizations which are mandated to take care of these ‘surrendered’ cattle in case they fail to take care of them? There is enough evidence to prove that many cows and other protected cattle die and are kept in deplorable conditions in ‘Gosadans’ or cow shelters throughout the country.
The vote bank politics behind laws such as these also became apparent when the chief minister of Maharashtra, upon the animal preservation bill receiving assent of the president becomes law, used social media to proclaim, ‘Thanks a lot honourable President sir for the assent on Maharashtra Animal Preservation Bill. Our dream of ban on cow-slaughter becomes reality now’.
When in reality, cow slaughter was prohibited in Maharashtra for over three decades and the present law only banned beef from the slaughter of bulls and bullocks, which was earlier allowed only based on certificate certifying it fit-for-slaughter.
Presidential assent to the law in Maharashtra, banning slaughter of cows, bulls and bullocks has had an enormous negative economic impact on the most marginalized communities, who are mostly associated with the trade in beef and in tanneries etc. The groups most affected by this ban are Muslims, Christians and Dalits, with thousands of them having lost their livelihood. Laws like the Maharashtra Act also instill a constant fear as there is a lot of scope them being misused, where a mere allegation of ‘possession of beef’ would lead to an arrest, and can be used as an easy tool to settle scores. Moreover looking at the practical impact of these laws and bans, according to the Agricultural and Processed Food Products Export Development Authority (APEDA) as per 2007, meat production in India is estimated at 6.3 million tonnes, making India the world’s fifth largest meat producer, with 31% of the 62% bovine meat being that from cattle, certified by authorities as fit for slaughter. These numbers are a clear indication of how many of those involved in the trade are set to lose their livelihoods as a result of a slow and steady move towards a nation-wide ban on the slaughter of cow and other cattle.
It has been observed over the years that those who support the ban on cow slaughter, use it as a political tool to garner votes when addressing the general public, and use the garb of agriculture and scientific reasoning when debating on the secular nature of the ban and the laws emanating from it. If protection of all cattle for promotion of agriculture etc is the main aim of the Directive Principle of State Policy, Art 48, why is it that the department of agriculture, Government of India while referring to laws passed to protect ‘cattle’ in various states, has a title which has an emphasis on cow slaughter instead of ‘milch and drought cattle’ and reads ‘Main features of legislations enacted by the States/UTs on cow slaughter’?
Thus, can the directive principle on cow protection in India be used as a ‘reasonable restriction’ to curtail fundamental rights and does the recent legislation on the same not stand in contravention of the spirit of the Indian Constitution denying certain communities their basic human rights? The answer lies in the misery caused to the millions employed in the cattle industry, who were not involved in slaughter of cows anyhow (Apart from 10 states which allow slaughter of cows with restrictions, most employed in the cattle industry slaughter bulls, bullocks and buffaloes etc for consumption or export of meat, leather etc) and now would be rendered unemployed and without a livelihood.
With regard to the Supreme Court judgements, the question one needs to address is not whether or not the judicial interventions and proclamations on prohibition of cow slaughter are constitutional because they are in conformity with the different interpretations of Art 48 and other directive principles of the constitution, but whether they are unconstitutional because they trump certain non-negotiable fundamental rights guaranteed to every citizen under the Indian Constitution.
 P.B Gajendragadkar, Secularism and the constitution of India (University of Bombay, 1971) p.126
 Kanan Gahrana, Right to freedom of religion , a study in Indian secularism (South Asian publishers pvt ltd 1992) p132
 Constituent Assembly of India, Volume VII <http://parliamentofindia.nic.in/ls/debates/vol7p12.htm> Accessed on March 15 2015.
Shraddha Chigateri, Negotiating the ‘Sacred’ Cow: Cow Slaughter and the Regulation of Difference in India In Monika Mookherjee (ed) Democracy, Religious Pluralism and the Liberal Dilemma of Accommodation Studies in Global Justice, Ed Monika Mookherjee (Springer 2011) p.142
 C S Adcock ,Sacred cows and secular history: cow protection debates in colonial north India (Comparative Studies of South Asia, Africa and the Middle East, Volume 30,2010) Duke University Press 2010
 Shabnum Tejani, Indian Secularism Asocial and intellectual history 1890-1950 (Permanent Black 2007)
 1959, SCR 629
 Donald Eugene Smith, India as a secular state (Oxford University press 1963) p.488
 (2005) 8 SCC 534
 (2006) 4 SCC 162
 Andhra Pradesh Prohibition of Cow Slaughter and Animal Preservation Act, 1977
 [1959 SCR 629]
 (1973) 4 SCC 225
 (1978) 2 SCC 1
 Chigateri (n 4), p153
 Report on the national commission on cattle <http://www.dahd.nic.in/dahd/reports/report-of-the-national-commission-on-cattle/chapter-ii-executive-summary/annex-ii-8.aspx> assessed 2 March 2015
 Smita Gupta, BJP, Congress soft-pedal on cattle slaughter ban, The Hindu, 4 March 2015, <http://www.thehindu.com/news/national/other-states/bjp-congress-softpedal-cattle-slaughter-ban/article6959796.ece> accessed 10 March 2015
 Maharashtra Animal Preservation (Amendment) Act, 1995
 Anup Surendranath, ‘Anti-Cow Slaughter Legislations: The Curious Case of the Prohibition on Possessing Beef’, <http://lawandotherthings.blogspot.in/2012/02/guest-post-by-anup-surendranath-anti.html feb 20 2012> assessed 2 March 2015
 Ambika Pandit, Cows wasting away in govt’s gosadans, Aug 26 2005 <http://timesofindia.indiatimes.com/city/delhi/Cows-wasting-away-in-govts-gosadans/articleshow/1211179> assessed 1 March 2015
Mariya Salim is a research scholar working on Human Rights Law at the School of Oriental and African Studies, London