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This article is written by Ayushi Dubey, a third-year student of Institute of Law, Nirma University. The article highlights various reasons as to why cow slaughter should not be banned in India. The author has discussed manifold cases to strengthen the argument that banning of cow slaughter in India is a violation of Fundamental Rights of the people.

Introduction

The issue of cow slaughter is not new to India. From the colonial rule to the NDA government, we have seen many aspects of it. The issue has always been in controversy due to the involvement of religious sentiments of people. The two main religions in the debate are the Hindus and the Muslims. The Hindus argue that cow is their holy animal and therefore, it should not be slaughtered. Whereas, the Muslims want to slaughter it because a good number of people from the Muslim community are butchers and secondly, their religion demands the sacrifice of a cow as well. The arguments are further dealt with in detail throughout the article. The article through various judicial pronouncements has raised arguments that why cow slaughter should not be banned in India.

Violation of Right to Work under Article 19(1)(g)

Every citizen, under Article 19(1)(g), has the right to choose every 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. A blanket ban on cow slaughter has the potential for creating a standstill in the meat business as due to the same, the butchers, gut merchants and cattle traders will incur huge losses despite there fundamental right to carry on any trade or occupation of their choice.

Under Article 19, the burden falls on the state in order to defend and justify the validity of the legislative statue, further, the restrictions under Article 19(6) should not be arbitrary, excessive, irrational, beyond the requirements of the interest of the general public and a direct and proximate nexus between the restrictions and the object which is sought to be achieved should exist therein.

A ban imposed on the freedom to carry trade or commerce is unreasonable if it is imposed not for the public interest, but simply to respect the values and beliefs of a section of people. And according to the case Deendayal [1], an alternative to this blanket is adopting an economical approach vis prohibiting the killing of useful animals but not of those animals who are economically useless to the society. The case of Manickchand [2], held Prohibition of slaughter of bulls, bullocks etc. below the age of twenty-five years is unreasonable as these animals cease to be useful after the age of fifteen years.

The case of Haji Usmanbhai Hasanbhai Qureshi v. State of Gujarat [3], held that the maintenance of useless cattle involves a wasteful drain on the nation’s cattle feed. To maintain them is to deprive the useful cattle of the much-needed nourishment, this, in turn, tends to deteriorate the bleed thereby being detrimental to the limited resource pool which can be further utilized for more effective and efficient uses. Further, the apex court in the case of Hasmatulla v. MP [4] held that blanket ban on cattle slaughter does not necessitate compliance with Article 48, a balance between the right of the butchers to carry on their trade and public interest must be struck.

The landmark judgement of Hanif Qureshi & Ors. v. State of Bihar [5], mentions the invalidity of a total ban on the slaughter of all cattle animals whilst keeping in mind the economic losses they may bring and the inefficient usage of resources they may cause. Therefore, the powers and capacity of the legislature and the impact of legislation on the citizen’s fundamental rights clearly depict that the ban on cow slaughter violates Article 19(1)(g).

Violation of Right to Choice under Article 21

Complete prohibition and ban on the slaughter of cow lead to clear infringement of the right to life & personal liberty enshrined in Article 21 of the Constitution of India. The Right to Life and Personal Liberty is considered as the most sacrosanct right among all other fundamental rights. Right to life & personal liberty is a comprehensive term which includes varieties of rights, and attributes which go to make up personal liberties of a man. In the case of Maneka Gandhi v. Union of India,[6] it was held that Article 21 consists of wide varieties of right & some of them are given a special status of a different fundamental right having special protection under art. 19.

The Right to Life guaranteed under Article 21 embraces within its sweep not only physical existence but the quality of life and if any statutory provisions run counter to such a right it must be held unconstitutional. It is a right which protects the inner sphere of the individual from interference from both state, and non-state factors and allows individuals to make autonomous life choices.

In HinsaVirodhak Sangh v. Mirzapur Moti Kuresh Jamat[7], the Supreme Court observed that what a person eats is a matter of his personal choice which forms the part of the right to privacy under article 21 of the Constitution of India.

Any restrictions on the right of an individual which violates Article 21 of the Constitution of India can be sustained only if the state establishes the existence of compelling state interest and even the plea of the existence of compelling state interest is subject to scrutiny on the ground of reasonableness and proportionality of the intrusion.

Further relying upon the provisions of Food Safety and Standards Act, 2006 and the regulations framed thereunder, it is submitted that bovine flesh has been statutorily accepted as a nutritious food.

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Violation of Right to Religion under Article 25 and 29

The blanket ban on cow slaughter violates people’s rights guaranteed under Article 25 and Article 29 of the Constitution. It is contended that the sacrifice of bulls and bullocks is an essential part of the festival of Eid.

The ban depending upon the directive principles of State policy is postulating a supposition that the legislation has been made in public interest. Even assuming that the ban is in concurrence with the directive principles of State policy, it is not necessary to presume that the restrictions imposed by the provisions thereof on the fundamental rights are reasonable. The Apex Court in the case of Akhil Bharatiya Karmachari Sangh v. Union of India,[8] contended that the reasonableness of restrictions imposed by the said sections needs to be examined independently. Also, in the case of Pathumma v. State of Kerala [9], it was contended that the directive principles of State policy can never negate the requirements envisaged under Part III of the Constitution.

Also, while dealing with the issue of violation of fundamental rights, the Court has to see whether or not the restrictions imposed are reasonable and also whether there is any existence of a compelling public interest. In the case of Javed v. State of Haryana [10], it was contended that the test of reasonableness cannot be dispensed with the sole reason that the Statute enacted is in furtherance of the directive principles of State policy. The Apex Court in the case of Minerva Mills v. Union [11] of India negates the contention that the directive principles automatically support legislation that curtails the fundamental rights.

Also, in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat [12], it was observed that the increasingly large number of uneconomical bullocks was negatively hampering the human life and was causing health-related problems. It was also noticed that the Gaushalas in Maharashtra were in a state of the plight and also indulging in the illegal sale of uneconomical bullocks. Therefore, the restrictions imposed thereof, by the said Amendment are not for the benefit of the public and also cannot be considered reasonable by any stretch of the imagination. It was also urged that once a statute is shown to transgress upon the fundamental rights, the onus is on the State to establish the reasonableness of restrictions imposed by the Statute.

Further, if we invoke the Clause (1) of Article 25 of the Constitution of India, thereby submitting that the slaughtering of cattle on the occasion of Bakri Eid and every festival is a religious practice protected under the said clause. The slaughtering of cows on the occasion of Bakri Id is an essential religious practice under the said proviso. However, as laid down in Hamilton’s translation of Hedaya Book XLIII, Maidah in Part 6 of the Holy Quran, which marks the end of the Haj Pilgrimage3 wherein cattle are sacrificed, and Verse 24, it is the rightful duty of every Muslim who has arrived at the age of maturity, to offer a sacrifice of either a cow among seven people or one goat per person. The very fact of an option, therefore, runs counter to the question of an obligatory duty. However, economic compulsion creeps in as the majority of the Muslim population is poor and therefore, not in a financial position to sacrifice a goat. As a result of the total ban, people would not even be allowed to make the said sacrifice which is an essential practice, enjoined upon them by the Holy Quran, and practised by all Muslims since time immemorial.

Also, it was held in the case of I.R. Coelho (Dead) By Lrs. v.State of Tamil Nadu & others [13], that when there is an infringement upon the fundamental rights of the citizens, the burden of proof lies not on the Petitioner alleging infringement to show that the infringement is not reasonable or is contrary to morality. It is, therefore, upon the State to justify the ban by showing that the infringement of the said right can be saved on grounds of morality, public health and other such grounds. Secularism is a positive concept of treating all religions equally, which forms a basic structure of the Constitution and any violation of Article 25 would tantamount to the violation of the basic structure. By banning the slaughter of cow and her progeny, the State is favouring one religion over the other under the guise of Article 48 of the Constitution.

Article 29 of the Constitution protects the interests of the minorities by making provisions for them for conserving their language, script or culture. It also mandates that no discrimination would be done on the grounds of religion, race, caste, language or any of them.

Therefore, a ban on cow slaughter is violative of Article 29 of the Indian Constitution which states that any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own has the right to conserve the same. The ban fails to accommodate diverse religious practices and has systematically normalised, legitimised and prioritised a dominant Hindu ethic at the expense of the rights and beliefs of the already subjugated Muslim community. The interests of both parties should therefore, be balanced.

Conclusion

The fact that this issue would still take time to get resolved is important note. Unless and until people don’t start thinking beyond their religious sentiments, a logical argument could not be accepted. The article has tried highlighting the economic loss that the ban on cow slaughter would cause to the country. In order to protect the religious sentiments of one, the law cannot affect the religious sentiments of another. And when there are conflicting interests between two people, an amicable solution has to be reached. A balance has to be made and partially allowing cow slaughter of un-economic cows or cows which are old and cannot produce milk is one such solution.

References

  1. 2003 (3) WLN 453.
  2. 1984 3 S.C.C. 65.
  3. (1986) 3 S.C.C. 12.
  4. AIR 1996 SC 2076.
  5. 1958 AIR 731.
  6. (1978) 1 S.C.C. 248.
  7. (2008) 5 S.C.C. 33.
  8. (1981) S.C.R. (2) 185.
  9. (1978) 2 S.C.C. 1.
  10. (2003) 8 S.C.C. 369.
  11. A.I.R. 1980 S.C. 1789.
  12. (1999) 3 G.L.R. 2007.
  13. A.I.R. 2007 S.C. 861.

 

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