In this article, Arnaz Pestonji, pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata discusses on the current debate on the ban of cattle slaughter.
Considered holy by many Hindus, slaughter of cattle is a sensitive political topic which has gained much attention since the present government came to power in 2014. After gaining power, the present government enacted strict laws holding persons criminally liable for cattle slaughter, which is not just limited to cows but includes all sorts of cattle such as buffalo, bull, bullock, steers, heifer, calves and camel as well.
However, the debate on cattle slaughter is not a new phenomenon and has been prevalent in the Indian society since 1948. After various lively debates in the Constituent Assembly, a ban on the slaughter of certain animals was included as a Directive Principle of State Policy.
Cow Slaughter under the Constitution of India
Under Article 48 of the Constitution of India, the State shall endeavour to take steps for preserving and improving the breeds, and prohibiting the slaughter of cows, calves and other milch and draught cattle.
Article 48A of the Constitution of India mandates that the State to enact laws in order to protect and improve the environment and to make provisions for the safeguard of forest and wildlife of the country.
Also, the Constitution casts a Fundamental Duty upon every citizen of India under Article 51A(g), to protect and improve the natural environment and to have compassion for living creatures”.
The ban on cow slaughter was justified because this enactment enabled the State to protect and improve the environment. The excreta of cow progeny is a source of rich organic manure which helped in improving the quality of the earth and avoided the use of chemicals and inorganic manure.
Also, under Entry 15 of List II (State List), the State Legislatures can make laws to implement directive contained in Article 48 regarding prohibition of cattle slaughter as they have been empowered by the Constitution of India to enact laws related to Preservation, Protection and Improvement of stock.
The structure of the Constitution of India is such that even a blanket wide ban on cattle slaughter falls within the ambit of constitutionality and can hence be termed as constitutional. However, the fact that such type of ban is violative of various fundamental rights of citizens cannot be disregarded either.
Opposition To Ban on Cattle Slaughter
Numerous ordinary citizens, butchers, gut merchant and cattle dealers in India have challenged this ban by filing petitions in various Courts across the nation on the ground that it violates their fundamental rights as under.
Article 19(1)(g) – Freedom to practise or carry on any profession, trade, business or occupation.
Under this article, every citizen has the right to choose any employment or to take up any trade or calling, subject only to the limits as may be imposed by the state in the interest of public welfare.
Butchers, gut merchants and cattle dealers have suffered a great amount of losses after the ban on cattle slaughter came into effect even when the constitution has provided them with the right to carry on any trade or occupation of their calling.
Also, under Article 19(2), State has been empowered to put reasonable restrictions on freedoms that have been guaranteed under Article 19, however, even these restrictions cannot be irrational, unconstitutional or arbitrary.
Article 21 – Right to Liberty states that,
“No person can be deprived of their right to life or liberty except according to the procedure that has been established under law. “
Art. 21 refers to “right to life” and embodies several aspects of life including the right to live with human dignity, right to livelihood, right to legal aid, right to pollution free air, right to health, right to food etc.
Legislation that bans cattle slaughter have taken the right away from the people to choose what they want to eat and thus right of citizens to be able to consume food of their choice has been snatched away from them which portrays India society as one that is bigoted and anti-liberal.
The exception provided under Article 21 which states that the liberty of an individual can be restricted by the State as per the procedure established by law, however this procedure also cannot be irrational, unconstitutional or arbitrary.
The Current Debate
Reasons why it should be banned
Environmental concerns: The environmental concerns have to be placed on the same pedestal as human rights concerns, both being traced to Article 21 of the Constitution. A Bench headed by Justice K S Radhakrishnan stated that ”Animals also have honour and dignity which cannot be arbitrarily deprived of and its rights and privacy have to be respected and protected from unlawful attacks,”. It further added that the “Court has a duty under the doctrine of parents patriae to take care of the rights of animals since they are unable to take care of themselves as against human beings”. (See here)
Not An Absolute Ban
The issue relates to a total prohibition imposed on the slaughter of cow and her progeny. The ban is total with regard to the slaughter of only one particular class of cattle. The ban is not on the total activity of butchers (kasais); they are left free to slaughter animals other than cow progeny and carry on their business activity.
Reasons not to ban
Alternatively, certain findings were concluded by the constitution bench in the case of Qureshi v. State of Gujarat
Wasteful Drain of Resources: The cattle population that is fit for breeding and work must be properly fed for maintaining the health and nourishment of the nation. The maintenance of useless cattle which cannot work or breed involves a wasteful drain on the nation’s cattle feed.
Losses for Cattle Dealers: A total ban on the slaughter of cattle would bring a serious dislocation, though not a complete stoppage, of the business of a considerable section of the people who are by occupation Butchers (kasai), hide merchant and so on.
Anti-liberal: Such a ban will deprive a large section of the people of what may be their staple food or protein diet.
Timeline of the Debate in the Supreme Court
To reconcile the right of butchers to carry on trade and restrictions imposed on the killing of animals through several state laws, the Supreme Court has adopted economic approach viz killing of useful animals could be prohibited but not of those animals who have become economically useless to the society.
The Court has emphasized that a prohibition imposed on the fundamental right to carry a trade and commerce cannot be regarded as reasonable if it is imposed not in public interest, but merely to respect the susceptibilities and sentiments of a section of the people. Thus, it is unreasonable to prohibit the slaughter of cows of all ages and male or female calves of cows or buffaloes. Prohibition of slaughter of bulls, bullocks and she-buffaloes below the age of twenty-five years is an unreasonable restriction on the butchers right to carry on their trade as well as not in public interest as these animals cease to be useful after the age of 15 years (Manick Chand v. the Union of India)
The Court observed in this connection in Qureshi: “The maintenance of useful cattle involves a wasteful drain on the nations cattle feed. To maintain them to deprive the useful cattle of the much-needed nourishment. The presence of so many useless animals tends to deteriorate the breed”.
A ban was put on the slaughter of bulls and bullocks below the age of 16 years. the Supreme Court found these animals could be used for breeding, draught and agricultural purposes up to the age of 16 years. Accordingly, the Court ruled that restriction was not unreasonable, looking to the balance which needs to be struck between public interest, which requires preservation of useful animals and permitting the different traders in beef etc to carry on their trade and profession’. (Haji Usmanbhai Hasanbhai Qureshi v state of Gujarat)
“Again, the state of Madhya Pradesh imposed a total ban on the slaughter of bulls and bullocks and again the Supreme Court quashed the same”. (Hasmattullah v State of Madhya Pradesh)
After referring to all the provisions cases of this question, the Court stuck to its view that these animals were useful only up to the age of 16 years and their slaughter thereafter could not be banned. Referring to Article 48(a) Directive Principle, the Court observed that absolute ban on cattle slaughter of bulls and bullocks is not necessary to comply with article 48. The Courts had thus sought to strike a balance between the right of the butchers to carry on their trade and public interest.
However, the National Commission on Cattle was of the view that It cannot be accepted that bulls and bullocks become useless after the age of 16. It has to be said that bulls and bullocks are not useless to the society because till the end of their lives, they yield excreta in the form of urine and dung which are both extremely useful for production of biogas and manure. Even after their death, they supply hide and other accessories. Therefore, to call them ‘useless’ is totally devoid of reality. If the expenditure on their maintenance is compared to the return which they give, at the most, it can be said that they become ‘less useful’.
In the case of State of Gujarat Vs. Mirzapur Moti Kureshi Kassab Jamat and Ors it was held that “With the growing adoption of non-conventional energy sources like biogas plants, even the waste material has come to assume considerable value. After the cattle cease to breed or are too old to do work, they still continue to give dung for fuel, manure and biogas, and therefore, they cannot be said to be useless. The backbone of Indian agriculture is the cow and her progeny in a way. The whole structure of the Indian agriculture and its economic system is indirectly dependent on the cow.”. It was thus considered necessary to impose total prohibition against slaughter of progeny of cow.
Although the intention of the government behind laws related to cattle slaughter might be purely in the interest of public as cattle are an integral part of agricultural and animal husbandry sector, issuing a blanket nationwide ban on cattle slaughter appears to be anti-liberal as India is a democratic nation.
Completely banning the slaughter of cattle for professional or consumption purposes in all states is not justifiable as it completely neglects and violates the fundamental rights of the people such as Right to Personal Liberty [Article 21] and Right to Freedom to carry any trade or occupation [Article 19(1)(g)].
India is an agrarian economy, protection of cattle is of utmost importance, however, laws relating to the slaughter of cows have been made part of Code of Criminal Procedures. If the states have taken the defence of public interest or environmental protection then why should an offence related to slaughter of cows be punishable up to 10 years or for life in certain states.
Such sentences are nowhere near proportionate to the objective sought to be achieved by the government. Is there an element of religion present in the legislation related to cattle slaughter? If yes then India is a secular state, such draconian laws appear to be violative of the basic structure of the constitution.
Prohibiting consumption of cattle meat which forms a daily part of consumption habits of one section of the society to maintain the religious sentiments of another section of the society is not a reasonable legislation in a federal nation.
The judgment passed by Supreme Court in the case of Qureshi v state of Gujarat to allow the slaughter of bulls and bullocks above 16 years created a balance between the rights of the butchers to carry on their trade, liberty of citizens and public interest by preserving the cattle which are termed useful for agricultural purposes.
Similarly, the Centre, as well as the State, need to make such legislation and adopt such reasonable rules and regulations related to cattle slaughter so that a balance can be struck between the two.
Constitution of India – Prof MP Jain
Constitution of India – Durgadas Basu
Constitution of India – Seervai