Explained: The unending beef between law and justice on the issue of cow slaughter in India

Constituent Assembly debates suggest that members introduced a provision on prohibition of cow slaughter for economic reasons but the issue had already been influenced by religious belief to an extent that some members justified killing men to save cows.

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ON March 12, 10 persons accused of murdering 45 years old cattle trader, Qasim, and assaulting 62 years old Samaydeen on a false rumour of cow slaughter in the 2018 Hapur mob lynching case were convicted to life imprisonment.

In 2018, Qasim was chased and lynched to death by a mob on rumours of having slaughtered a cow. When Samaydeen, a bystander, tried to intervene, he was attacked too. 

A trial court convicted the 10 accused under Sections 302 (punishment for murder) and 307 (attempt to murder) read with 147 (punishment for rioting), 148 (rioting, armed with deadly weapon), 149 (every member of unlawful assembly guilty of offence committed in prosecution of common object) and 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence) of the Indian Penal Code, 1860. All accused persons have been fined to pay ₹58,000 each.

Statistics by IndiaSpent database, which records cow vigilantism violence, reveal that since 2014, cases of cow lynching and vigilantism have exponentially increased, especially in states where the ruling Bharatiya Janata Party (BJP) is in power.

The data indicates that about 97 percent of such cases have been reported after the BJP came to power in 2014. These attacks are often carried out by far-right groups such as the Vishva Hindu Parishad, Bajrang Dal and local gau rakshak samitis (cow protection committees). A significant number of victims involve Dalit and Muslim men. 

A 2019 report on the Status of Policing in India reveals that one in three police officers think it is 'natural' to a large extent for a mob to punish 'culprits' of 'cow slaughter'.

Why and how have the rights of cows taken precedence over the rights of humans in India? Here we look at a history of communal and legal strife in India, punctured by some major inversions.

Constituent Assembly debates on cow slaughter: Economic versus religion

The cow is a revered animal in Hinduism. Sections of Hindus, marked by caste (mostly dominant caste) and regional (mostly in the so-called cow-belt of the subcontinent) identities, consider cow slaughter taboo. During the pre-independence era, M.K. Gandhi had strongly advocated for a total ban on cow slaughter.

In the book The Mind of Mahatma Gandhi, it is reported that he once said: "The central fact of Hinduism, however, is cow-protection. Cow protection to me is one of the most wonderful phenomena in human evolution…

"The ancient seer, whoever he was, began with the cow. The appeal of the lower order of creation is the gift of Hinduism to the world. And Hinduism will live so long as there are Hindus to protect the cows."

Also read: The debilitating saga of mob lynching

However, Constituent Assembly debates reveal that Article 48 (organisation of agriculture and animal husbandry) of the Directive Principles of State Policy, which provides for the protection of the cow, was included in the Indian Constitution on the basis of the economic importance cows hold and not based on religious beliefs.

It could rather be said that the religious undertone for introducing this was not explicitly recognised by those who advocated for its inclusion.

At that time, India was even more of an agrarian economy than it is now, and primacy was given to cows because they are milk-producing animals, cow dung was used as organic manure and fuel, and cows and bulls provided draught power for ploughing fields.

Pandit Thakur Dass Bhargava introduced the draft Article 38A (present-day Article 48) in the Directive Principles of State Policy.

It is widely known that while Bhargava became the face of the amendment, the person behind the introduction of the provision of cow protection in the Constitution was Rajendra Prasad, the President of the Constituent Assembly.

On August 7, 1947, a week before independence, Prasad wrote a letter to Jawaharlal Nehru in which he said: "I mentioned the agitation which is spreading at a tremendous speed about the stopping of cow slaughter… The Hindu sentiments in favour of cow protection is old, widespread and deep-seated and it has taken no time to rouse at this moment to a pitch when it is difficult, if not impossible, to ignore it…"

Several members of the Constituent Assembly, particularly Bhargava, Seth Govind Das, Shibban Lal Saxena, Ram Sahai, Raghu Vira and R.V. Dhulekar strongly advocated for the inclusion of a prohibition on cow slaughter under Chapter III on fundamental rights.

On this, Bhargava said: "While moving this amendment, I have no hesitation in stating that for people like me and those that do not agree with the point of view of Dr Ambedkar and others, this entails, in a way, a sort of sacrifice.

"Seth Govind Das had sent one such amendment to be included in the Fundamental Rights and other members also had sent similar amendments. To my mind, it would have been much better if this could have been incorporated in the fundamental rights, but some of my assembly friends differed and it is the desire of Dr Ambedkar that this matter, instead of being included in fundamental rights, should be incorporated in the Directive Principles…

"I have purposely adopted this course, as to my mind, the amendment fulfils our objective and is midway between Directive Principles and the Fundamental Rights."

Also read: One year since the SC's judgment, lynchings continue to "corrode the nation"

However, Dr B.R. Ambedkar was against the inclusion of cow protection as a fundamental right as he reasoned that Part III only applied to human beings.

Bhargava also stated: "I do not want that, due to its inclusion in the Fundamental Rights, non-Hindus should complain that they have been forced to accept a certain thing against their will."

Explaining the introduction of Article 38A, he stated that the amendment has three parts. He said: "Firstly, agriculture should be improved on scientific and modern lines. Secondly, cattle breeds should be improved; and thirdly, cows and other cattle should be protected from slaughter."

He added: "Therefore, I want to submit before you that the slaughter of cattle should be banned here. Ours is an agricultural country and the cow is 'kamdhenu' to us— fulfiller of all our wants. From both points of view, of agriculture and food, protection of the cow becomes necessary."

An amendment to draft Article 38A was moved by Das, who wanted to extend the scope of prohibition for prohibiting cow slaughter to covering not just cows but their progeny by adding that the word cow would include bulls, bullocks and young stock of genus cow. However, the amendment motion was unsuccessful.

Das also said: "As Pandit Thakur Das told you, I had submitted this earlier to be included in Fundamental Rights but I regret that it could not be so included. The reason given is that Fundamental Rights deal only with human beings and not animals."

Das's speech reflected that the issue could not be distinctly separated from Hindu religious sentiments.

He said: "The protection of cows is a question of long standing in this country. Great importance has been attached to this question from the time of Lord Krishna. I belong to a family which worships Lord Krishna as 'ishtadev'. I consider myself a religious minded person, and have no respect for those people of the present-day society whose attitude towards religion and religious-minded people is one contempt…"

Das may have referred to the issue from the economic point of view but his primary concern was the importance of cows in Hindu religion and culture.

He added: "Moreover, cow protection is not only a matter of religion with us; it is also a cultural and economic question… I would like to emphasise one point to my Muslim friends also. I would like to see my country culturally unified even though we may follow different religions. Just as a Hindu and a Sikh or a Hindu and a Jain can live in the same family, in the same way, a Hindu and a Muslim can also live in the same family. "

"Muslims should come forward to make it clear that their religion does not compulsorily enjoin on them the slaughter of the cows. I have studied a little about all the religions. I have read the life of Prophet Mohammad sahib. The prophet never took beef in his life. This is a historic fact," Das asserted.

Also read: International Religious Freedom Report: Why does domestic pride turn to international shame for the current regime? 

Saxena had also clarified that the amendment had both religious and economic aspects. However, he only spoke on religious aspects. 

He said: "[I] personally feel that cow protection, it has become a part of the religion of the Hindus, it is because of its economic and other aspects, I believe that the Hindu religion is based mostly on the principles which have been found useful to the people of this country in the course of centuries."

Saxena further said: "Therefore, if 30 crores of our population feel that this thing should be incorporated in the laws of the country, I do not think that we as an assembly representing 35 crores should leave it out merely because it has a religious aspect."

The debates and sentiments of the majority could be best described by R.V. Dhulekar's speech in which he said: "We want that India should declare today that the whole human as well as the whole animal world is free today and will be protected. The cow is a representative of the animal kingdom, the peepal tree is the representative of the vegetable kingdom, the touchstone or the shaligram is the representative of the mineral world. We want to save and give peace and protection to all the four worlds…"

He added: "Some people here talked to me and said 'You say that you want to protect the cow and want it to be included in the Fundamental Rights. Is the protection of the cow a fundamental right of a human being? Or is it the fundamental right of the cow?' I replied to them and told them, 'suppose it is a question of saving your mother or protecting your mother'."

Dhulekar's speech, unfortunately, offered a justification for killing humans in the name of cow lynching.

He further said: "Whose fundamental right is it? Is it the fundamental right of the mother? No. It is my fundamental right to protect my mother, to protect my wife, my children and my country. In the Fundamental Rights you have said that you will give justice, equity and all these things. Why? Because you say 'it is your fundamental right to have justice'.

"What does that justice mean? It means that we shall be protected, our families shall be protected. And our Hindu society, or our Indian society, has included the cow in our fold. It is just like our mother.

"In fact it is more than our mother. I can declare from this platform that there are thousands of persons who will not run at a man to kill that man for their mother or wife or children, but they will run at a man if that man does not want to protect the cow or wants to kill her."

Two members of the Constituent Assembly had opposing views on this amendment.

Z.H. Lari, a member from United Provinces, said: "The House, at the same time, must appreciate that Mussalmans of India have been, and are, under the impression that they can, without violence to the principles which govern the State, sacrifice cows and other animals on the occasion of Bakrid (Eid-ul-Adha).

"It is for the majority to decide one way or the other. We are not here to obstruct the attitude that the majority community is going to adopt. But let there not linger an idea in the mind of the Muslim public that they can do one thing, though in fact they are not expected to do that.

"The result has been, as I know in my own province on the occasion of the last Bakrid, so many orders under Section 144 (of the Code of Criminal Procedure) in various places, districts and cities. The consequence has been the arrests of many, molestation of even more, and imprisonment of some.

"My own submission to this House is that it is better to come forward and incorporate a clause on Fundamental Rights that cow slaughter is henceforth prohibited, rather than it being left vague in the Directive Principles, leaving it open to the provincial government to adopt it one way or the other…"

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He added: "We feel … we know that our religion does not necessarily say that you must sacrifice cows: it permits it. Therefore, let the leaders of the majority community here and now make it clear and not leave it to the back-benchers to come forward and deliver sermons one way or the other."

The Muslim members of the Constituent Assembly wanted that the amendment should clarify the religious stance of the Hindus and they are ready to abide by it. However, the majority should not promote the amendment under the garb of economic importance.

Another member, Syed Muhammad Saadulla, most effectively summarised the debate on prohibition of cow slaughter: "Subject of debate before the House now has two fronts, the religious front and the economic front. Some who want to have a section in our Constitution that cow killing should be stopped for all time probably base it on the religious front. I have every sympathy and appreciation for their feelings for, I am a student of comparative religions."

He added: "I know that the vast majority of the Hindu nation revere the cow as their goddess and therefore they cannot brook the idea of seeing it slaughtered. I am a Muslim as everyone knows. In my religious book, the Holy Quran, there is an injunction to the Muslims saying— 'La ikraha fid Din', or, there ought to be no compulsion in the name of religion. I therefore do not like to use my veto when my Hindu brethren want to place this matter in our Constitution from the religious point of view."

Saadulla concluded by stating: I do not also want to obstruct the framers of the Constitution, I mean the Constituent Assembly, if they come out in the open and say directly: "This is part of our Constitution. The cow should be protected from slaughter and therefore we want its provision either in the Fundamental Rights or in the Directive Principles."

However, he opposed the ban on economic considerations. 

On this, he had said: "But those who put it on the economic front, do create a suspicion in the minds of many that the ingrained Hindu feeling against cow slaughter is being satisfied by the backdoor. If you put it on the economic front, I will place before you certain facts and figures which will show that the slaughter of cows is not as bad as it is sought to be made out from the economic point of view."

He pointed out: "I have very vast and varied experience of the province of Assam and therefore I will quote you figures from Assam only. In the year 1931, under the orders of the then Central Government a census of the cattle wealth of the province was undertaken.

"We found that in 1931, Assam had 70 lakhs of cattle as against a human population of 90 lakhs. It will stagger my friends from the other parts of India when I place before them the fact that the average yield of an Assam cow is but a quarter seer of milk daily and that it is so puny in stature that its draught power is practically nil.

"Assam is dependent for her draught cattle on the province of Bihar. During the last war, when there was tremendous difficulty as regards transport, we could not get any cattle from Bihar, with the result that we were compelled to use our own small cattle for the purpose of ploughing.

"In order to conserve this cattle, the government of Assam passed a law prohibiting the slaughter of cattle in milch or cattle which could be used for the purpose of draught. 

"But, wonder of wonders, I personally found that droves of cattle were being taken to the military depots for being slaughtered not by Muslims, but by Hindus who had big 'sikhas'(tufts of hair kept by certain dominant caste Hindus at the back of their heads).

"When I saw this during my tours I asked those persons why, in spite of their religion and in spite of government orders, they were taking the cattle to be slaughtered. They said: "Sir, these are all unserviceable cattle. They are all dead-weight on our economy. We want to get ready cash in exchange for them."

Saadulla had further pointed out that there is a community amongst Hindus who go by the name of 'Rsihis' and their sole occupation in life is to take away the skin of dead cattle. 

"There are lakhs of Muslims who do not eat cow's flesh. I am not speaking in any sense of braggadocio when I say that I myself do not take it. Before the partition the Muslims were only one-fourth of the total population.

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"They did not raise sufficient cattle to kill. It is the majority of people who sold their cattle to the Muslims to be killed. Now the Muslims form only one-tenth of the population of the Dominion of India. Do you think that the Mussalmans can raise sufficient cattle to slaughter them? Muslims are poorer than our Hindu brethren.

"The Muslims are as much agriculturists as the Hindus and the cattle in their farms form their capital asset, the natural source of their power to till the land and produce the food which will maintain them for the entire year. Therefore, it is wrong to say that the Muslims kill the cows either to offend my Hindu friends or for any other purpose. Fortunately or unfortunately the Muslims are a meat-eating people. The price of mutton is so high that many people can not buy it. Therefore on rare occasions, they have to use the flesh of the cow," he concluded.

What is the law on cow slaughter in India?

Most laws prohibiting cow slaughter in India could be divided into two categories. The first set of laws are those that impose a total prohibition of cow slaughter, such as the laws in Andhra Pradesh, Bihar, Delhi, Gujarat, Haryana, Himachal Pradesh, Jammu & Kashmir, Karnataka, Madhya Pradesh, Maharashtra, Odisha, Pondicherry, Punjab, Rajasthan, Tamil Nadu and Uttar Pradesh.

The prohibition in most of the laws in this category extends to possession, sale, transfer and consumption of beef and its products. If a person is found in violation of the provisions, the burden of proof is on the accused, unlike the general criminal jurisprudence where the burden of proof lies on the prosecution.

The offences under these laws are cognisable and in some instances, non-bailable. Under some laws, the maximum imprisonment may extend to three years. 

Some of these legislations, such as the Rajasthan Bovine Animal (Prohibition of Slaughter and Regulation of Temporary Migration or Export) Act, 1995 allow any recognised voluntary animal welfare agency, or any goshala, gosadan or any suitable person who volunteers to maintain the animal, the custody of the seized animal.

The other set of laws allows the slaughter of all animals including cows based on certain considerations, such as if the cow has attained a certain age, has become unproductive for work or breeding, suffers injury and has become deformed or suffers from an incurable or contagious disease. The second set of laws requires a 'fit-for-slaughter' certificate and includes laws in Assam, Daman & Diu, Goa, Kerala and West Bengal.

Some of the laws such as the West Bengal Animal Slaughter Control Act, 1950 provide an exemption on its application on grounds of religion, medicinal and research purposes provided that such slaughter "does not affect the religious sentiments of the neighbours of the person or persons performing such slaughter".

Also read: Country's welfare depends on the cow; it's protection should be a fundamental Right: Allahabad HC

Certain other states such as Manipur, Meghalaya and Nagaland do not have legislation prohibiting cow slaughter.

Petitions before the Supreme Court seeking directions to curb cow lynching 

In 2018, Tehseen Poonawalla and Tushar Gandhi filed public interest litigations seeking directions from the Supreme Court for the Union and state governments to deal with the issue of cow violence.

One of the issues raised before the court was that many cow protection legislations allowed individuals to take action in case of violation of any provisions.

The legislation gave immunity from any criminal prosecution if such actions were taken in good faith, for instance, Section 14 of The Rajasthan Bovine Animal (Prohibition of Slaughter and Regulation of Temporary Migration or Export) Act, 1995.

The court, however, did not go into the constitutionality of the provisions and focused on implementing preventive measures.

A Bench of former Chief Justice of India (CJI) Dipak Mishra and comprising A.M. Khanwilkar and the present CJI Dr D.Y. Chandrachud pronounced its judgment on the matter on July 17, 2018.

The court said: "Lynching is an affront to the rule of law and to the exalted values of the Constitution itself. We may say without any fear of contradiction that lynching by unruly mobs and barbaric violence arising out of incitement and instigation cannot be allowed to become the order of the day.

"Such vigilantism, be it for whatever purpose or borne out of whatever cause, has the effect of undermining the legal and formal institutions of the State and altering the constitutional order."

It issued extensive preventive and remedial measures to the Union and state governments. State governments are required to designate a senior police officer, not below the rank of superintendent of police, as the nodal officer in each district. The nodal officer shall be assisted by one officer of the rank of deputy superintendent of police in the district for taking measures to prevent incidents of mob violence and lynching.

The police were directed to register a first information report (FIR) under Section 153A of the IPC along with relevant provisions against persons who disseminate "irresponsible and explosive messages and videos of having content which is likely to incite mob violence and lynching of any kind."

One of the important directives was for the Union and state governments to broadcast on radio, television and other media platforms including official websites that lynching and mob violence of any kind would invite serious consequences under the law.

For remedial measures, the court directed the police to immediately register an FIR if an incident occurs and provided that the nodal officer must be duly informed.

The court also directed state governments to prepare a lynching or mob violence victim compensation scheme in light of Section 357A of the CrPC within one month from the date of the judgment.

Five years have passed since the judgment was pronounced and there are still legitimate concerns about compliance with the directions. Last year, the Union government informed the Supreme Court that 28 states have appointed nodal officers. It is very recently that states such as Madhya Pradesh have approved a victim compensation scheme.

Conclusion

As this look at the Constituent Assembly debates reveals, the contours of the controversy on cow slaughter are foundational to the Indian republic. The one major difference between then and now is that the pretence of economic reasons for a ban on cow slaughter has been given up, and now both the State and vigilante mobs clearly present it as an issue of Hindu pride, with a garnish of climate change science (that beef consumption produces more greenhouse gases pound for pound that other sources of protein).

However, certain fundamental questions remain. If the argument of advocates of a beef-ban among Hindus is that the religious injunction for them is not that they should not eat beef but that no one should be allowed to kill cows, does it set them on a warpath with every beef-consuming community all over the world?

For this, they have invented the convenient and preposterous fiction of 'desi' cows, saying Hindu scriptures only call for the protection of desi cows and not foreign breeds.

The more pertinent question is: In a secular democracy, can the religious beliefs of one community extend to the personal practices, including eating habits of another community? A ready comparison is idol worship, which is expressly banned in Islam. Can Muslims then argue that Hindus cannot worship idols because it goes against the fundamental principles of Islam?

The law in India has allowed this encroachment of one person's beliefs into another person's dining table, and certain provisions even protect vigilantes to this effect.

So, while some closure might have trickled down to Qasim and Samaydeen finally, but the beef between law and justice with regard to cow slaughter is going to remain unresolved in India for a long, long time.