India’s beef laws : Cow Protection

Reading time : 6 minutes

Hindus do not consider the cow ‘God’ per se, but they, however, consider the bovine holy and sacred, as ‘she’ is associated with Hindu deities (Lord Shiva’s anthropomorphic Nandi Bail, for instance). Hindus see the cow as a particularly generous, docile creature, the one that gives more to human beings than she takes from them.

This, however, wasn’t the case with all the bovine cattle – oxen were sacrificed and eaten in ancient Hindu culture, but cow (at the time mostly because of its milk) was strictly off-limits. Similarly, carabeef (buffalo meat) is still used in many parts to compensate for the lack of beef.

But as Buddhism and Jainism began taking root in India, with the rise of its core principle, ahimsa, many Hindus stopped eating meat, and cows came to be associated with the Brahmins. The belief that gained traction around this time was that people turning to vegetarianism were “superior” to those choosing the opposite. Even today, this belief plays a central role in reassuring people of their foothold in society (and religion) based on this very belief.

Constituent Assembly and ‘Cow Protection’

The debate around anti-cow slaughter laws dates back to at least a millennium, hence it was bound to be a sticking point in the Constituent Assembly. The Assembly’s leaders received incessant requests to criminalize cow slaughter from the public and its members alike. Gandhi even issued a statement that such a move wouldn’t be in line with the spirit of the Constitution. This was to no avail, and taking into consideration the strong religious sentiment of the majority, protection of cows was added into Directive Principle State Policy, and Art 48 was born.

States and the Beef Ban

Beef ban or anti-cow slaughter laws immediately (and rightly so) take us to the ring-wing ideology of BJP, with Muslims bearing the brunt of it.[[1]] However, this is not completely true – Congress, way back in 1955, was the first to ban beef, when BJP wasn’t even formed. But, since agriculture, including animal husbandry, is a State subject, there exists a complete lack of central authority on the subject. Hence, exist varying state laws on the issue – most states, majorly Gujarat, Madhya Pradesh, Punjab, Rajasthan, Maharashtra, Himachal Pradesh, Jammu and Kashmir, Haryana, and Delhi, Goa, etc. have a complete ban on cattle slaughter in general, that is including buffalos and bullocks of all ages.

 West Bengal allows it for unfit cows, after obtaining due certification and Kerala allows for cattle slaughter for animals that are unfit for work, cannot breed, or are permanently injured and over 10 years old.

A few north-east states, like Arunachal Pradesh, Meghalaya and Mizoram, don’t have any laws prohibiting the slaughter. [[2]]

This is majorly because the vast majority of population in these states is either Christian or tribal. The former’s religion allows beef and the allied meat, while the latter’s ethnic practices vastly differ from the Hindutva ideology of the mainland. Keeping in mind the sensitive and fragile cultural differences, BJP made sure that beef doesn’t become a bone of contention for their 2018 elections in Meghalaya, Nagaland and Mizoram. In fact, the saffron party went a step ahead to assure that the beef won’t be banned in the three states.

Besides varying cultural ideologies, another major reason for its popularity in these states would be that it is quite possible to preserve it by fermentation, unlike chicken, which makes it cheaper and more viable.

Assam’s Cattle Preservation Bill, 2021, restricts the sale of beef only to certain places, and completely prohibits it in Hindu-dominated localities and within 5km radius of a Hindu temple. It, however, retains West Bengal’s stance on the slaughter. A major portion of Assam where the Hindutva ideology couldn’t penetrate is the Bodo and other tribal areas that birthed their own nationalism in the 20th Century. So, beef ban was not an option here, owing to numerous alliances with these groups. Thus, the saffron party was extremely wary of its Hindutva ideology thwarting its efforts to forge alliances and incorporate tribal and Christian leaders into its party. Ultimately, this wariness is what ensured its victory in the 2018 elections.

Fundamental Rights Scrutiny

This part addresses the merit of the ban or anti-cow slaughter laws, taking into account fundamental rights’ perspective.

Gandhiji, in his magazine, Harijan, expressed his concern over an alarming number of Hindus viewing Congress as the ‘catalyst’ of Hinduism. He recognized the need of the majority (Hindus) to extend their beliefs to the minority by translating them into laws by criminalizing cow slaughter. He explicitly said that, “Let us at the outset realize that cow worship in the religious sense is largely confined to Gujarat, Marwar, the United Provinces and Bihar. It is obviously wrong legally to enforce one’s religious practice on those who do not share that religion…” [2]

This tells us that even the prime leaders of the Assembly, regardless of what their subordinates pushed for, drew the line between religion and law. They were wary of the majority Hindutva ideology being able to overwhelm the minority. Hence, despite endless debates and propositions, even when the push came to shove, Dr. Rajendra Prasad responded diplomatically to the growing distress (over the “abuse” of their religion by the minority) of people, by incorporating an anti-cow slaughter in Directive Principles State Policy, and not fundamental rights.

Dharam Dutt v. Union of India, 2004 [[3]] determines the test of ‘reasonableness’:

  • Whether the right claimed is a fundamental right.
  • Whether the restriction is one contemplated by way of clauses (2) to (6) of Art. 19.
  • Whether the restriction is reasonable or unreasonable.

State of Madras v. VG Row, 1952 [[4]] laid down the test of judicial review: that the Court should consider not only the extent and the duration of restriction (or a restrictive law), but also the circumstances and manner it’s been authorized in.

Applying this test in State of Gujarat v. Mirzapur Moti Kureshi Kassab, 2005, [[5]] the Supreme Court upheld:

  • the temporary ban (of 9 days) on cattle slaughter and meat production citing religious tolerance.
  • It further held that the ban on slaughterhouses and meat production for a considerable period of time would amount to excessive restriction, which would in turn be violative of Art 19(1)(g) to practice any profession or trade.
  • What one eats is one’s personal affair and a part of Right to Privacy embedded in Art 21.

Similarly, in Mohammed Faruk v. State of Madhya Pradesh, 1969, [[6]] it was held that a complete ban on cattle slaughter, was violative of petitioner’s Fundamental Right pertaining to Art 19(1), and that such prohibition will ultra vires if it is issued only to respect majority’s susceptibilities and sentiments, as their beliefs are not same as the claimant (or the minority).

In Abdul Hakim Quraishi v. State of Bihar, 1961, [[7]] it was held that excessive ban or unnecessary pre-requisites for the on cattle slaughter, which practically led to total ban, was indeed violative of Art 19(1) of butchers or kassai.

“It is true that in the aforesaid Constitution Bench decision, it was held that total prohibition of cow and cow progeny slaughter may be justified. However, it has not been held in that decision that laws and policies which permit such slaughter are unconstitutional. Therefore, the position of law remains that the directive principles and fundamental duties cannot in themselves serve to invalidate a legislation or policy”. The said case related to export policy of meat from buffaloes that are certified as not useful for milching, breeding or draught purposes. Export policy was therefore held valid in Akhil Bharat Goseva Sangh, 2006 [[8]].

In Chintaman Rao v. State of MP, 1950 [[9]], it was held, that ‘reasonable restriction’ on Fundamental Rights cannot be beyond public interest. It cannot be arbitrary or excessive, and requires ‘intelligent care’ and ‘deliberation’ It needs to strike a proper balance between the freedom granted in Art 19(1) and social control in Art 19(6).

Record has shown time and again (like for instance, in Abdul Hakim Quraishi v. State of Bihar) that legislators have tried to reinforce the Hindutva ideology in the name of ‘public interest’.

Sometimes it was by either increasing the age-limit of slaughter to 20-25 years (despite scientific data showing that the cattle is practically useless after the age of 15 and their life expectancy doesn’t go beyond 16-17 years) or by making the process of obtaining the due certificate highly complicated. It further allowed anyone to raise grievance about the slaughter with the State Government within 20 days of obtaining the due certificate, thus putting the slaughter on hold.

Another example of the same would be Akhil Bharat Goseva Sangh, 2006, where the permission to establish a slaughterhouse on the outskirts of a village in Andhra Pradesh had been revoked by Gram Panchayat, citing religious sentiments of the villagers.

While there are numerous examples where courts have been impartial in their judgments regarding the sensitivities of the bovine, the recent Allahabad High Court judgement takes a complete left turn in this regard. Bench of Justice Shekhar Kumar Yadav actually observed that cow should be declared a national animal, and her protection a fundamental right of the Hindu, citing her importance in Hindu culture and making references to Vedic culture. He clamped down quite heavily on ‘beef eaters’. [[10]]

“When the culture and faith of a nation faces injury, the nation gets weaker,” Justice Yadav added, completely failing to notice the cultural nuances between the Northeast and the rest of the country.

Another interesting fact to note here is that all the legislations pertaining to cattle slaughter ban cow slaughter completely, and no contention was raised about it. The right-wing only “allowed” the slaughter of other cattle, as a compensation for prohibiting cow’s.

States’ lukewarm stance on the issue can be seen in the nature of pre-requisites for the slaughter to take place for local consumption. One could argue that India’s a top exporter of carabeef regardless of its laws, but this argument lacks some merit:

  • India slipped from the top to a nine-year low as the demand from Vietnam falls. [[11]]  Human Rights Watch (HRW) report attributed the decline to cow vigilantism. [[12]]
  • The beef exports when Modi first came to power (2014) stood at an all-time high in a decade. But FY 2015 saw an 11% drop in the exports [[13]]. This drop coincided with the infamous Dadri Lynching [[14]] of September 2015.
  • Even though beef exports increased by 1.2% and 1.3% for FYs for 2016-17 and 2017-18 respectively, India couldn’t compete with the US in terms of quality, owing to its lack of animal health regulations. So, India’s low-cost carabeef is exported to the low and middle-income countries of Asia and Middle-east. US and other developed countries target developed-countries with their high-end products. While giving preference to dairy necessities, Indian buffalo remains underexploited for meat for better part because of low domestic consumption. [[15]]
  • USDA did (rightly) predict that if India continued its cattle-rearing practices and feeding practices could drop India’s production significantly by 2020. This can be attributed to the growing cow vigilantism under Modi’s regime [[16]]

BJP, Beef and Islamophobia

There is a general assumption that BJP is inherently anti-cow slaughter, and that mob lynching over cow slaughter is a recent phenomenon. While the former may hold some grain truth, given the saffron party’s open declaration and affiliation to the Hindutva ideology, the latter needs to be taken with a pinch of salt – as I mentioned before, anti-cow slaughter stance has been politically prevalent since the late 19th Century, and taken up the Congress in the 20th. The first recorded attack on Muslims over cow slaughter dates back to 1890s, as Mohammad Sajjad discusses in his work, Muslim Politics in Bihar: Changing Contours. Gandhiji in his Hind Swaraj mentioned, “a man is just as useful as a cow no matter whether he be a Mohammedan or a Hindu.” Even though the statement was to protect Muslims against cow vigilantism, it reflected cow-protectionist sentiments. To further understand the epoch of such attacks, it is significant to know that such attacks have taken place every Baqrid starting from 1926, and continuing into post-independence era as well (till 1968). Thousands of Muslims were killed every Baqrid for wanting to sacrifice cow.

As mentioned before, many members of the Assembly strived for cow-protection against the protesting voices of the minority (Muslims and tribals). Thus, even though prohibition on cow slaughter never became a right/law, cow vigilantism remained rooted in the politics – for instance, Bihar’s first CM, S.K. Sinha, was an ardent cow vigilante, who went on to make statements as extreme as, “gaay ki azaadi hi Bharat ki azaadi hai.” (Freedom for the cow is freedom for India).

Urdu author, Asghar Imam Falsafi, in his book, Hamari Durgat, records dozens of mob lynching incidents of Muslims on Baqrid (1947-1951), and added that the victims hardly received any help from the authorities. Muslim butchers were the most targeted and vulnerable class. Since post-independence journalism was heavily controlled by the State, such incidents never made to national or local ‘dailes’ or they would be covered as riots than one-sided Islamophobic massacre.

All this only took place because most states started enacting and enforcing anti-cow slaughter laws in the name of Cattle Preservation Acts, and local authorities clamped down on the minority, of which, Muslims became the prime targets.

Another reason why the saffron party is associated with the lynching is because the BJP-era is characterized with robust increase the digital world – smartphones and internet became a common phenomenon only after 2010. Thus, came frenzied means of communication channels with unprecedented ease – the lynching of Pehlu Khan on a Rajasthan highway, for instance, could not have been reported in a similar fashion, if there was no video footage of the event.

Conclusion

Cow vigilantism has always been perceived as a symbol of ‘preserving’ Hindu culture. This enabled many BJP-allied right-wing groups like RSS or The Bhartiya Gau Raksha Dal to take matters in their own hands to “preserve” and “spread” Hinduist ideology. India used to be the largest exporter of beef, but with more and more mob lynching coming to light, it has widely affected India’s exports, as it is now in the third position. Government appears to be torn between ameliorating the cattle rearing and trade practices and disappointing its right-wing allies. Although, the saffron party did declare its affiliation to Hinduism in the 90s, when it wasn’t even power.

We first need general tolerance in the government, which can later be translated into public’s acceptance of varied and diverse choice of the minorities. We need education inclusive of minorities’ cultural uniqueness, so children are able to accept and respect the cultural nuances as adults.

As more and more incidents come to light, many youths, especially in the metropolitan settings is able to sympathize with the victims regardless of their or the latter’s cultural affiliation. Moreover, our judiciary, over the years, has done a fairly decent job in protecting the rights of minorities, every time the issue of ‘majority vs minority’ has come up this context.


[1] https://thewire.in/communalism/cow-lynching-muslim-internet-state-sanction

[2] https://scroll.in/article/998735/cow-protection-was-a-sensitive-subject-in-india-even-when-the-constitution-was-being-framed

[3] Dharam Dutt v. Union of India, 2004, 1 SCC 712: AIR 2004 SC 1295

[4] State of Madras v. VG Row, 1952 SCR 597: AIR 1952 SC 196

[5] State of Gujarat v. Mirzapur Moti Kureshi Kassab, 2005 SCC 534

[6] Mohammed Faruk v. State of Madhya Pradesh, 1969 SCC 853

[7] Abdul Hakim Quraishi v. State of Bihar, 1961 2 SCR 610: AIR 1961 SC 448

[8] Akhil Bharat Goseva Sangh, 2006 SCC 162

[9] Chintaman Rao v. State of MP, 1950 SCR 759: AIR 1950 SC 118

[10] https://theprint.in/judiciary/cow-is-the-basis-of-hindu-faith-must-declare-it-national-animal-allahabad-high-court-says/726338/

[11] https://www.moneycontrol.com/news/india/indias-beef-exports-slide-to-9-year-low-as-vietnam-demand-falls-7076731.html

[12] HRW Report

[13] Beef Export Stats

[14] https://www.thequint.com/news/india/was-the-dadri-lynching-really-a-murder-based-on-a-personal-grudge

[15] USDA Report

[16] https://theprint.in/india/better-to-have-killed-me-man-thrashed-by-cow-vigilantes-says-wont-transport-meat-again/475034/

Author: Ria Ghelani, Balaji Law College, Pune University

Editor: Kanishka VaishSenior Editor, LexLife India.

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