On 22nd March, 2017, the Government of Uttar Pradesh (‘UP’) issued an order directing the closure of public slaughterhouses in the State, which were operating without licenses, or failed to comply with the licensing conditions, or violated the concerned rules or regulations. Through the successive orders dated 24th March, 27th March and 28thMarch, 2017, the State Government has ostensibly made it a drive against ‘illegal slaughterhouses’ in UP. Were these really “illegal” slaughter houses ? Who failed to maintain these slaughter house in accordance with the law?
As noted by the Allahabad High Court in its recent order dated 03.04.2017, it is the responsibility of the local Municipalities to establish and maintain ‘corporation slaughterhouses’ meant for slaughter of animals, but due to their negligence in maintaining proper standards, many of these slaughter houses are closed or have been closed down.
Most of these ‘illegal slaughterhouses’ are nothing, but either State establishments that have been allowed to rot. Now the State is taking advantage of its wrong and implementing a divisive policy, in the name of protection of public health and welfare. Others are private licensed slaughter houses, whose licenses have not been renewed for allegedly failing to adhere to regulatory norms pertaining to sanitation and hygiene.
Origin of the Anti-Cow Slaughter movement in India
It is well-documented that a sustained campaign to prohibit cow slaughter began only in the late 19th century, with the onset of Hindu revivalist movements like Arya Samaj. In fact, the founder of Arya Samaj, Swami Dayanand Saraswati, founded the first Gaurakshini Sabha (‘cow protection societies’) in Punjab in 1882, and thereafter, many more of such sabhas were set up in Northern and Central India. The symbol of cow was used to mobilise the Hindu upper classes and upper castes, along with the rural agriculturists in United Provinces, Bihar and Bengal, amongst others. Many small scale skirmishes started happening between Hindus and Muslims over the issue of cow slaughter, which erupted in a major communal riot in 1893, when more than 100 people died in Bombay, Junagarh, Oudh and Bihar. Initially, the movement was not against cow slaughter per se, but against cow slaughter in public. So Muslim butchers could slaughter cows in their yards, but not at public roads. However, with growing mobilisation and support from Hindi intelligentsia, the movement became more hardened and adopted a total prohibitionist approach towards cow slaughter.
Constituent Assembly Debates
As is well-known, the first draft of the Indian Constitution did not have any provision on cow slaughter. The Draft Constitution, prepared by the Drafting Committee of the Constituent Assembly under the aegis of Dr. B.R. Ambedkar in February, 1948, too did not contain any reference to cow slaughter. However, it was introduced by way of an amendment in the draft Constitution by Pandit Thakurdas Bhargava, who presented both religious and economic arguments for this amendment. In fact, an explicit demand to include prohibition on cow slaughter as part of fundamental rights was specifically rejected by the Constituent Assembly, and it was agreed to include it in the Chapter on Directive Principles in Part IV of the Constitution. Despite the apprehensions raised by many members that the said amendment was an attempt to include the blanket ban on cow slaughter through indirect means in the text of the Constitution, the consensus was arrived at on the basis of the explicit assurance given by members like Pandit Bhargava in November, 1948 that the objective of protection of cattle should be achieved ‘without using any sort of coercion’.
Another example of leaving the policy on cow slaughter to the discretion of the individual states was when the Constituent Assembly rejected the amendment to shift Entry 15 of List II (State List), i.e., “preservation, protection and improvement of stock” to List III (Concurrent List), wherein both the Central and State Governments are empowered to make laws. Thus, the constitutional consensus pertaining to the vexed issue was complex, i.e., treating it as a matter of policy for the State Governments as they deem fit, without any need for a central law on the issue, and not limiting the protection only to cows, but extending it to all milch and draught cattle, owing to its vital significance to Indian agriculture.
However, the critics did point out that Article 48 was an insidious way to satisfy the ‘majority Hindu sentiment’ against cow slaughter, which actually became evident in subsequent years, whether in legislation or in judicial decisions.
Maintaining the Constitutional consensus for almost 50 years
Perceiving the text of Article 48 to be an endorsement of a blanket prohibition on the slaughter of cattle, including cows, bulls and bullocks, many States passed legislation to that effect. The courts were watchful, in Mohd. Hanif Quareshi & Ors. vs. State of Bihar & Ors. [1959 SCR 629], the five judges bench of the Supreme Court struck down the provisions of Bihar Preservation and Improvement of Animals Act, 1956, Uttar Pradesh Prevention of Cow Slaughter Act, 1955 and the C.P. and Berar Animal Preservation Act, 1949, which imposed a total ban on the slaughter of all cattle, including buffaloes. Contrary to his views during the Constituent Assembly debates, Pandit Bhargava, who appeared as an amicus in the case, argued that these laws, enacted in pursuant to Article 48 of the Constitution, “were equally, if not more fundamental and must prevail.”
Refuting this contention, the Supreme Court categorically held that the directive principles could not override the explicit restriction imposed under Article 13(2), i.e., the State being barred from enacting laws impinging on the fundamental rights of persons. Following the principles of harmonious construction, the Court observed that
“the State should certainly implement the directive principles, but it must do so in such a way that its laws do not take away or abridge the fundamental rights, otherwise the protecting provisions of chapter III will be a mere rope of sand.”
It is precisely this proposition of law which has been given a go by in the Mirzarpur case as we will see.
While recognising the usefulness of the cow and her progeny as well as the utility of draught bullocks, the Court noted that the presence of useless cattle and maintaining them involved a huge drain on the existing cattle feed, and deprived the useful cattle of their nourishment, besides violating the fundamental rights of butchers, hide merchants, etc, under Article 19(1)(g) of the Constitution. Thus, the Court struck down the blanket ban on the prohibition of all cattle, and limited it to the slaughter of milch and draught cattle, in accordance with the intention of the Constitution drafters.
This tenuous balance between useful (up to the age of 16 years) and useless cattle was maintained by the Apex Court for almost 50 years, in the face of sustained attempts by the various State governments to impose absolute prohibition on the slaughter of cattle, except buffaloes.
Fundamental Rights reduced to a ‘rope of sand”
However, this balance and almost five decades of settled jurisprudence was overturned by the same Supreme Court in State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat & Ors. [(2005) 8 SCC 534 ‘Mirzapur’], wherein a seven judge bench upheld the total prohibition on the slaughter of bulls and bullocks under Bombay Animal Preservation (Gujarat Amendment) Act, 1994. Going against the grain of Article 13(2), the Court emphasised the primacy of directive principles of state policy over fundamental rights, and how the directive principles and fundamental duties under Article 51A were relevant for assessing whether the restrictions imposed on fundamental rights were reasonable or not. Holding that cattle neverbecome useless, owing to the use of their dung/urine as manure, and were therefore entitled to protection under Article 48, even when they cease to be milch and draught, the Court held that the total prohibition on the slaughter of cattle was reasonable in public interest under Article 19(6) of the Constitution.
Relying on unverified data, and studies presented by the Gujarat government, and relying on the directive principles, the Court paved the way for total prohibition on the slaughter of cattle, which was never contemplated by the Constitution assembly, and in fact, stoutly opposed by the members.
Sadly, this judgment has become the blue print on the basis of which cow vigilante groups have wreaked havoc in the country, brutally lynching and killing Muslim men, either on the allegation of eating ‘beef’, or for transporting milch cows, or publicly flogging Dalit men for transporting dead cattle. Unless Mirzapur is overturned, and the balance reached in Quareshi is restored, the violence and atrocities against the minority communities in the name of ‘cow protection’ will continue unabated. Besides, this has no relation, whatsoever, to the principles of Article 48, i.e., to organise agriculture and animal husbandry on modern lines, and is completely based on the religious sentiments of the upper caste Hindus.
Prohibition on Consumption of Beef
The constant fear that the complete ban on cattle slaughter was, in fact, an indirect means to impose forced vegetarianism came true, when in 1995, the Maharashtra Legislative Assembly passed the Maharashtra Animal Preservation (Amendment) Act, 1995 (‘MAPA’), imposing a complete ban on the slaughter of bulls and bullocks as well as, for the first time, prohibiting the consumption of beef (flesh of cow, bulls or bullocks) that was even slaughtered outside Maharashtra. This bill did not receive the presidential nod for almost 20 years, when on 4th March, 2015, the President, Mr. Pranab Mukherjee, gave his assent to this controversial law, and it came into immediate effect.
On 6th May, 2016, a two judges bench of Justice A.S. Oka and Justice S.C. Gupte of Bombay High Court struck down the prohibition on consumption of beef slaughtered outside Maharashtra, and the provision on reversal of burden of proof as violative of fundamental rights to privacy and procedure established by law guaranteed under Article 21. Being bound by the Mirzapur decision, the High Court upheld the slaughter provisions. By locating the right of the citizens to eat food of their choice within the larger framework of the fundamental right to privacy under Article 21, the High Court held that “the State cannot prevent a citizen from possessing and consuming a particular type of food which is not injurious to health”. Appeals against the High Court order are currently pending in the Supreme Court, wherein a group of thirty consumers of beef from Bombay are defending their fundamental right to eat the food of their choice.
Complete prohibition on slaughter is detrimental to cattle preservation
Contrary to popular beliefs and State laws, experts consider the total ban on the slaughter of bulls and bullocks are, in fact, quite harmful to the preservation of cattle in India, since it deeply affects the local farming economy by restricting the farmers’ freedom to buy and sell cattle of their choice. This, in turn, impacts their capacity to rear cattle, since they would stop rearing male cattle, which would then severely hamper the breeding practices, thereby affecting the preservation of indigenous cattle breeds.
This has been borne out by the recent insightful articles of Dr. Sagari Ramdas, a known veterinary scientist in India, who has also filed an expert affidavit in the beef ban SLP pending in the Supreme Court.
From beef to buffalo: Widening the net
In all the debates on slaughter of cattle as well as in judicial decisions, the ubiquitous buffalo was never the bone of contention. Though similar to the category of milch cattle, buffalo never got the ‘constitutional protection’ that other milch/draught cattle got like cow and her progeny, bulls and bullocks. Despite the lack of ‘protection’, buffaloes produce 51.5% of India’s total milk. India is also the largest exporter of buffalo beef in the world. Further, a steady increase in the buffalo populations have been noticed in the last 30 years, while the indigenous cattle populations deceased from 178 million (1997) to 151 million (2012), despite a plethora of laws banning cow slaughter in most States of India.
However, this situation changed with the recent order of the UP Government to close down all ‘illegal slaughterhouses’ in the State, as noted before, which was challenged in Saeed Ahmad vs. State of UP [Miscellaneous Bench No. 6871 of 2017]. The Petitioner, who was a retail meat seller of goat meat in Lakhimpur Kheri, UP, had a valid license for his meat shop, which was not renewed by the Muncipal Corporation, owing to the Government order of closure of all ‘illegal slaughterhouses’ and non-availability of facilities for legal slaughter of animals.
As evident from Section 30, the UP Municipal Corporation Act, 1959, it is the obligation of the Municipal Commissioner to fix premises within the city wherein slaughter of animals or the cutting up of carcass of such animal to be permitted, which were not meant for retail sale directly.
The High Court, while noting in detail the concerned orders of the UP Government that ostensibly were only targeting ‘illegal slaughterhouses’, and had nothing to do with retail meat selling, refers to the orders of the Supreme Court in many cases pertaining to the establishment and maintenance of slaughterhouses, in accordance with the Prevention of Cruelty to Animals Act, 1960 the Prevention of Cruelty to Animals (Slaughter House) Rules, 2001, and the Food Safety and Standards Act, 2006. At the same time, the local laws like the U.P. Municipal Corporations Act, 1959 and the U.P. Municipalities Act, 1916 provide for the establishment of slaughterhouses, the issuance of licenses for running a private slaughterhouse, and for retailing and selling foodstuffs having animal origin.
Though the UP Government is using the orders of the Supreme Court or the National Green Tribunal to justify the closure of the ‘illegal slaughterhouses’, it singularly belies the fact that it is the Municipal Corporations or Zila Parishads that have failed in establishing modern facilities for slaughter houses, despite assurance given to the Supreme Court. While noting this inconsistency, the High Court has pointed out that the absence of such facilities has resulted in near prohibition on the activities of meat selling, thereby impinging on the fundamental rights of people.
Right to food of choice: one woman’s food is another woman’s poison
More importantly, the High Court emphasises how such policies are affecting the private lives of consumers who wish to consume foods of their choice, but are not able to access them. This was evident from severe meat shortage in the whole of UP, and even in neighbouring areas like Delhi.
The Court aptly notes “the competing rights of trade, profession, health, safety as well as consumption and the obligation of the State to make facilities available are issues that may be addressed to. The inaction of the State Government in the past should not be a shield for imposing a state of almost prohibition.”
It further states “food habits in this State have flourished and are an essential part of life as an element of the secular culture that has come to exist and is common amongst all sections of the Society. Compliance of law should not end in deprivation, the cause whereof may be attributable to the inaction of the State.”
By referring to the series of Supreme Court cases on slaughter as well as the Bombay High Court order striking down the prohibition on the consumption of beef, the Allahabad High Court held that “food that is conducive to health cannot be treated as a wrong choice” and the State is obligated to maintain the requirement of supply of healthy foodstuffs. The case is still pending in the High Court.
To sum up, one can clearly say that the current campaign against beef consumption and the slaughter of bulls, bullocks and now even buffaloes in the name of preventing ‘cow slaughter’ is a complete perversion of the principle behind Article 48, and what was agreed to by the Constitution makers in 1948. It was a delicate compromise that was deftly handled by the Supreme Court till 2005, when it decided to turn decades of settled jurisprudence on its head in Mirzapur.
Now when the country is almost torn apart by the divisive politics of cow vigilante groups and unabashedly supported by the current political regime, it is again up to the Supreme Court to set the course right, to emphasise that preservation of human life and dignity is paramount, and to bring back the consensus of the Constituent Assembly. The Supreme Court will soon have this opportunity in a group of petitions challenging the judgment of the High Court of Bombay, seeking an overruling of its own decision in Mirzapur.
Amritananda Chakravorty is an independent advocate practicing in New Delhi. She is a DFID Commonwealth Shared Scholarship Awardee for 2006-2007 for pursuing LLM from the University of Warwick, UK. She was associated with Lawyers Collective for almost 8 years, and was involved in many strategic litigations including challenging mandatory death penalty for drug offences, anti-sodomy offence, recognition of transgender rights, commutation of death sentences, challenging closure of brothels, protection against sexual harassment by judges, travel restrictions imposed on human rights activists, and challenging the beef ban amongst others.
Sketch credit : Hemant Morparia
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