What the law says

Legal farce

Print edition : October 30, 2015

A farmer ploughing his field at Turuvolu village in Visakhapatnam district of Andhra Pradesh. Photo: C.V. Subrahmanyam

Article 48 is a handy tool to cloak and pursue the majoritarian agenda by the state. It requires deft reasoning by the judiciary to lift the veil and see the hollowness of the claims advanced by the States in defence of their absolute ban on slaughter of the cow and its progeny.

THE HEADLINE—“ORGANISATION OF agriculture and animal husbandry”—of Article 48 under the Directive Principles of State Policy of the Constitution may sound innocuous, but its enunciation can leave one confused. It reads: “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.” Clearly, the Constitution-makers envisaged that latter part of the provision against cattle slaughter would help in realising the goal of organising agriculture and animal husbandry on modern and scientific lines while preserving and improving the breeds.

Although the Article does not speak of the sacredness of the cow, especially when seen in the context of the popular perception of the issue of cow slaughter, most of the States and Union Territories have relied on it to prohibit the slaughter of cattle and the sale and possession of beef. Only seven States and one Union Territory—Arunachal Pradesh, Meghalaya, Mizoram, Nagaland, Tripura, Manipur, Kerala and Lakshadweep —have not enacted a law banning cow slaughter.

In fact, such a ban is qualified by criteria such as the age of the cow and other bovine animals. Thus, Assam and West Bengal allow the slaughter of cattle that are more than 14 years old or have become unfit for work or breeding because of permanent injury, deformity or some incurable disease on production of a “fit-for-slaughter” certificate. In Tamil Nadu, the certificate can be obtained if the cattle are over 10 years old or suffer from disabilities. Tamil Nadu bans slaughter of cows and heifers in slaughterhouses throughout the State.

In Gujarat, while slaughter of cows, calves, bulls or bullocks is prohibited totally, slaughter of buffaloes is permitted on certain conditions.

In Karnataka, slaughter of cows and calves of cows and buffaloes is prohibited. However, slaughter of bulls, bullocks and adult buffaloes is permitted on the basis of the fit-for-slaughter certificate if they are over 12 years old or are unfit for breeding or milk production or as draught animals. Karnataka does not permit transport of cattle for slaughter outside the State and prohibits sale or purchase of cow or calf for slaughter and their disposal. Uttar Pradesh issues a certificate for slaughter of bulls or bullocks if they are over 15 years old and have some disability.

While Andhra Pradesh prohibits slaughter of cows, it issues a fit-for-slaughter certificate for bulls and bullocks if the animals are not viable for the purpose of breeding or agricultural operations. Bihar prohibits slaughter of cows and calves, but permits slaughter of bulls or bullocks that are over 15 years old or have become permanently incapacitated.

Delhi prohibits slaughter of all agricultural cattle and their transport or export for slaughter. It permits export of cattle only on the condition that they will not be slaughtered. It does not permit their export to States that allow cow slaughter. Uttar Pradesh has adopted a similar ban on export.

Goa bans slaughter of cows except for medical research or when the animal has a contagious disease. Goa prohibits sale of beef or beef products in any form, but permits import of beef from other States. It allows slaughter of cattle if they meet the fit-for-slaughter criteria. In Jammu and Kashmir, voluntary slaughter of any bovine animal is punishable with imprisonment, which may extend up to 10 years, and be liable to a fine under the Ranbir Penal Code, 1932. The fine amount may be five times the price of the animals slaughtered and as determined by the court. Possession of flesh of killed or slaughtered animals is also an offence punishable with imprisonment of up to one year and a fine of up to Rs.500.

Recently, a two-judge bench of the Jammu and Kashmir High Court in Jammu directed the State to implement the law prohibiting slaughter of cattle. Another bench in Srinagar, however, held that the direction is no bar on the State Assembly amending the law. When the State government sought a stay on the Jammu bench’s ruling, the Supreme Court asked the Chief Justice of the High Court to constitute a three-judge bench to resolve the contradictory rulings, while keeping the Jammu bench’s ruling in abeyance for two months.

Kerala does not have laws prohibiting cow slaughter, but the panchayat laws in the State prohibit slaughter of useful animals in non-municipal areas. Under the Kerala Panchayat (Slaughter Houses and Meat Stalls) Rules, 1964, no certificate shall be granted in respect of a bull, bullock, cow, calf or buffalo unless the animal is over 10 years old and is unfit for work or breeding or the animal has become permanently incapacitated. In 1976, the Kerala government issued an executive order banning the slaughter of useful animals in municipal areas.

In Madhya Pradesh, slaughter of cows, bulls, bullocks and calves of cows and buffaloes is prohibited. However, bulls and bullocks are slaughtered provided they are over 15 years or have become unfit for work or breeding. Like Delhi, Madhya Pradesh prohibits transport or export of cattle for slaughter to a State where slaughter is permitted. The State also prohibits sale, purchase and disposal of the cow and its progeny and the possession of flesh of cattle. Maharashtra prohibits slaughter of cows, bulls, and bullocks and consumption and possession of their meat. The Maharashtra Animal Preservation (Amendment) Act, 2015, allows slaughter of water buffaloes. Carabeef (water buffalo meat) is considered inferior to cow meat and makes up only 25 per cent of the total beef market in the State.

Odisha prohibits slaughter of cows but permits killing of bulls and bullocks if they are over 14 years old or have become permanently unfit for breeding and as draught animals. Puducherry permits slaughter of bulls and bullocks on similar grounds.

Punjab, Haryana and Himachal Pradesh prohibit slaughter of cows and calves, their export for slaughter, and the sale of beef. Rajasthan prohibits slaughter of all bovine animals, and the possession, sale and transport of beef and beef products and export of bovine animals for slaughter.

Such variations in the State laws make one wonder about the intent of the Constitution-makers in inserting this provision in the Constitution.

Constituent Assembly debate

When the corresponding draft provision (Article 38-A) of Article 48 was debated in the Constituent Assembly on November 24, 1948, the mover of the motion, Pandit Thakur Dass Bhargava, justified it by saying that in order “to improve the economic condition of the people, we should try scientific measures, and it presupposed that the useless cattle should be done away with and better breeds introduced”. A Muslim member, Z.H. Lari sought to expose the inconsistency in the provisions of Article 48. Those who participated in the debate on the draft provision prohibiting cow slaughter argued for it on the grounds of the cow’s usefulness in an agrarian economy. Lari argued that it would be best if the Article was included in the Fundamental Rights so that the State governments could adopt it one way or the other. He, however, made it clear that Muslims believed that they could sacrifice cows on the occasion of Bakrid as Islam permitted it, although it was not made an integral aspect of the religion.

Another Muslim member, Syed Muhammad Saiadulla from Assam, wondered whether the ingrained Hindu feeling against cow slaughter was being satisfied through the back door. It was because, as he explained, slaughter of cows was not as bad as it was sought to be made out from the economic point of view.

Supreme Court’s position

Notwithstanding the cloud surrounding the meaning of Article 48, the Supreme Court’s approach to the issue has undergone a shift in the past 57 years. The court got the first opportunity to examine the issue in Mohd Hanif Quareshi and others vs State of Bihar (1958). In this case, the court acknowledged that beef or buffalo meat was an item of food for a large section of poor people belonging to the Muslim, Christian and Scheduled Caste communities, in view of their low prices. It reasoned that the ban on slaughter of female buffaloes, bulls and bullocks that ceased to be capable of yielding milk or breeding or working as draught animals was not in the interest of the general public and was invalid.

The scholar Shraddha Chigateri said it was unclear why the Supreme Court did not consider cows past their milk-yielding age a burden on the resources unless one located the basis of cow protection in Hindu sentiment.

There was a marked shift in the court’s position in 2005, when a seven-judge bench heard the case of State of Gujarat vs Mirzapur Moti Kureshi Kassab Jamat and Others. By a six-to-one majority, it upheld a total ban on cattle slaughter. It held that bulls and bullocks continued to be useful past a certain age, in terms of the added benefits of urine and dung for manure and production of biogas, especially in this age of alternative sources of energy. The usefulness of the cow, whatever its age, the court reasoned, was already settled in Hanif Quareshi. In order to strengthen its case for the protection of useless bulls and bullocks, the court relied on Article 51 A (g) to note that showing compassion towards animals meant protecting useless cattle from slaughter.

Thus, in 2005, the Supreme Court rejected the challenges to a total ban on the slaughter of the cow and its progeny, although in 1958, and in subsequent cases, it had upheld a similar challenge under Article 19(1)(g), which guarantees right to practise any profession, or to carry on any occupation, trade or business. What has not changed over the years is the court’s position that slaughtering of cows on Bakrid is not essential for the religious purpose of Muslims.

In the 2005 judgment, the dissent of the lone judge, Justice A.K. Mathur is persuasive, even if not binding. In this case, the State of Gujarat, which was the appellant, had argued that 50 per cent of the State’s agricultural holdings were small and use of tractor for agricultural operations was not possible. The State suggested that for such small holdings draught animals were the best. Further, the State claimed that it had only 25 per cent of the requirement of bullocks for ploughing its 124 lakh hectares of cultivable land. The State submitted that bulls and bullocks at every stage of their life supplied 3,500 kilograms of dung and 2,000 litres of urine and this quantity of dung could supply 5,000 cubic feet of biogas, 80 metric tonnes of organic fertilizer and the urine could supply 2,000 litres of pesticides and the use of it in farming would increase the yield substantially. It was also pointed out that biogas, prepared with cattle dung and other inputs, had become a useful source of energy.

Justice Mathur, in his dissent, pointed to the admission by the State that the quantity of urine and dung produced by the bulls and bullocks after 16 years reduced considerably and their use as draught animals after a certain age was limited. He held that the age prescribed for slaughter was done after proper scientific study, but the State government amended the law to remove the age limit for slaughtering bulls and bullocks, thus prohibiting their slaughter. He wondered how an animal whose average age was between 12 and 16, could, at the age of 16, produce dung or urine to offset the requirement of chemical fertilizers.

Justice Mathur pointed out that production of foodgrains had gone up primarily because of the use of chemical fertilizers and not organic manure. “It is scientific methods employed by veterinarians that have helped increase milk production. It is common experience that aged bulls are not used for purposes of covering the cows for better quality of the breed. Only well-built young bulls are used for the purpose of improving breeding and not aged bulls,” he wrote in his dissent. The judge was doubtful whether the small yield of cow dung and urine from aged bulls and bullocks could substantially change the top soil, as suggested by the State government.

Article 48 is a handy tool to cloak and pursue the majoritarian agenda by the state. It requires deft reasoning by the judiciary to lift the veil and see the hollowness of the claims advanced by the States in defence of their absolute ban on slaughter of the cow and its progeny.

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