Why the constitutional justification for the ban on cow slaughter needs to be revisited
By Madhav Chandavarkar
The Maharashtra Animal Preservation (Amendment) Bill, 1995 was recently passed by President Pranab Mukherjee. It amended the Maharashtra Animal Preservation Act, 1976 to ban the possession and selling of beef. It also extended the ban on cattle slaughter to bulls, bullocks and unproductive cows that could previously be declared fit-for-slaughter. The amendment has resulted in a wide outcry by many against what they perceive to be a majoritarian imposition of Hinduism. They call the amendment an unjust restriction of rights and say it is unconstitutional. This is however, not technically accurate; Article 48 of the Constitution of India, a part of the Directive Principles of State Policy, provides that 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.” It is probably surprising to most that the legitimacy of anti-cattle slaughter laws is ostensibly drawn from “modern and scientific lines” but the Constituent Assembly debates on the introduction of Article 48 throw light on this dichotomy.
Article 48 was originally tabled by Seth Govind Das, who intended it to be a part of the Fundamental Rights chapter rather than the Directive Principles. This was however, rejected by the Assembly as fundamental rights were intended to protect the rights of humans rather than animals. Pandit Thakur Dass Bhargava then proposed that it be included in the Directive Principles of State Policy (the Articles in this chapter, though un-enforceable, place a duty on the government to achieve its objectives). Bhargava, Das, and many other speakers justify the inclusion of the Article during the debate but they largely relied on poor reasoning and the religious zealotry of most of the speakers is easily apparent. The dissenting opinions given by the two Muslim speakers stand out in contrast; their pleas that the ambiguity about the religious nature of the Article be removed are grounded in reason and are eerily prescient when read today. I urge all interested parties to themselves read the full debate; it is not overly lengthy and the interjections by the Vice-President, who is the convener of the debate, will elicit smiles from some readers.
The rationale behind Article 48, as provided by Bhargava and his colleagues, is ostensibly economic. Bhargava begins by describing how agricultural production can be increased by measures such as the construction of dams, the usage of machines, and the proper utilization of water. While these seem in line with modern thinking he goes on to state that the most important measure is improving the health of cattle but fails to provide any reason why this is the case. Then, seemingly forgetting his earlier suggestions, Bhargava comes to the conclusion that “the whole agricultural and food problem of this country is nothing but the problem of the improvement of [the] cow and her breed.” He justifies the necessity of the Article by citing statistics about how the cattle population fell drastically between 1940 and 1945 but neglects to mention that this can be attributed to the need for army rations during World War II.
Seth Govind Das, the next speaker, is unapologetic in his primary motivation for tabling the Article; he readily admits that he is a “religious minded person” and has “no respect for those people of the present day society whose attitude towards religion and religious minded people is one of contempt.” However, he does attempt to also justify the Article on cultural and economic grounds. Das argues that India’s ancient history has endowed it with a culture that is impervious to the imposition of new cultures only to contradict himself by stating how this culture is in need of protection. His economic justification mirrors that of Bhargava’s but with slight alterations; Das says that cow milk is essential to removing infant mortality but only substantiates this claim with the unanswered question: “How can they [children] be saved without milk?”
Das and Bhargava were both aware that this amendment would have religious repercussions, and they both resorted to the same argument to circumnavigate them. This was to cite how the ban of cow slaughter by Mughal emperors was an example of how the Muslim community also recognised the necessity of preserving cows. This argument fails to take into account the political expediency of minority rulers acquiescing to the customs of the majority of their populace. Das, in fact, quotes Babur’s instruction to Humayun to “refrain from cow-slaughter to win the hearts of the people of Hindustan” without recognising this expediency.
The speeches of the rest of the supporters of Article 48 degenerate further into impassioned pleas and obvious zealotry, and away from reasoned arguments and logic. Only Professor Saxena acquits himself favourably in this regard, but his argument that Article 48 is needed because half of India’s national income is derived from cattle wealth is woefully outdated.
It is at this stage that the Vice-President allowed dissenting opinions to be voiced, the first of which was that of Mr. Z.H. Lari. Mr. Lari makes it clear that he neither supports nor opposes the Article, and readily admits that Islam only permits the slaughter of cows and does not necessarily require it. His primary concern is the possibility that Bakrid celebrations will be marred by arrests made as a result of this Article. In fact, Lari states that he is in favour of the Article being included as a fundamental right as that would make it clear that the Hindu majority wished to preserve cattle for religious reasons. He makes the valid point that modern and scientific agriculture would mean mechanisation, and not a blanket ban on cattle slaughter. Lari is extremely conciliatory in his language, stating that his motivations are not “anger, malice or resentment” but a “regard for cordial relations between the communities” and a desire to avoid “any misunderstanding between the two communities on this issue”
Syed Muhammad Saiadulla is the last speaker. He begins his stance by accepting and honouring Hindu sentiments regarding the slaughter of cows and states that he would not object if Hindus want to “place this matter in our Constitution from the religious point of view.” However he is wary of an economic justification and predicts that it would “create a suspicion in the minds of many that the ingrained Hindu feeling against cow slaughter is being satisfied by the backdoor.” It is safe to say that this prediction has come true, as many people, wisely or unwisely, have gone past the point of suspicion. Saiadulla then used examples from his home state of Assam to prove that “in order to improve the economic condition of the people…useless cattle should be done away with and better breeds introduced.”
Both Lari and Saiadulla’s requests to clearly state the religious motivations in Article 48 were rejected on the grounds of secularism. It seems that the Assembly’s efforts to avoid favouring one religion have been counterproductive. There is now a Constitutional justification for Hindu fundamentalists to enforce their beliefs on the population that has the cloak of economic reasoning. The Indian economy is now drastically different that the one in 1948 and the need for the prohibition of cattle slaughter must be re-examined. This revision must also include a debate about the liberties of non-Hindus and non-religious Hindus to eat and sell beef or enjoy economic activities of their choice. Bhargava mentions in his speech that he does “not want that due to its [the Article] inclusion in the Fundamental Rights, non-Hindus should complain that they have been forced to accept a certain thing against their will.” However, he follows this by opining that “there will be absolutely no difference if the spirit of the amendment is worked out faithfully, wheresoever this amendment is placed.” It is unclear as to what the spirit of Article 48 actually was and whether it was worked out faithfully, but it is clear that non-Hindus are now complaining that they have been forced to accept a certain thing against their will.
Madhav Chandavarkar is a Research Associate with Takshashila Institution. His Twitter handle is @MadChap88