BEEF BAN: AN ANALYSIS

Vol 2/ Issue 2/ Dec 2016 [ISSN 2394 -9295]

Yamini Rathore	Ekta Jain
B.Com LL.B(H)	B.Com LL.B(H)
5th Semester	5th Semester
Amity Law School, Noida	Amity Law School, Noida
Email Id: yamini9431@gmail.com	Email Id: ektajain3125@gmail.com

ABSTRACT

The concept of Hinduism is based on the omnipresence of the Divine ,and the soul is present in all creatures including cattle‟s, which confers that killing an animal would be a sin, thus by that natural life cycle of an animal is been obstructed. A cow is considered to be the abode of all the Gods, it is considered the pious animal among all the animals. In spite of being so religious, still India is among the top exporters as well as consumer of beef. Just for the sake of earning capital, beef is being exported in large amount from our country which mutilates the religious sentiments of a particular committee. In this paper, we try to focus on the reverence of cow from ancient period and how the process of cow slaughtering initiated in India. Here, we also try to view recommendations of various committees along with the legislations passed by the state for banning beef in India so as to protect and preserve the cow and its progeny which in turn enhances the cattle wealth in our nation.

Key Words: Cow Slaughter, Constitution, Judicial Trend

INTRODUCTION

―Dhenunam asmi kamadhuk [1]

these lines were said by the Lord Krishna in bhagwad gita which means that among cows I am the wish fulfilling the cow.

Worshiping a cow is a myth not only in India but also in Nepal and Burma, cow has been considered as a sacred animal in our country since Vedic period. Merely the gesture of showing respect to cow makes the false representation that Hindus worship a cow. India is among the top 10 world largest producer of the Cow Milk. To the hindus cow is as a symbol of Earth it feeds and give all, which represents the generosity of cow as of our beloved mother earth which shows the life and supporting the life of the humans. It takes nothing more than just water, grass and grain and gives vast variety of products which are made from its milk.

HISTORICAL RELEVANCE

The significance of cow came in existence in the Vedic period by the arrival of lord Krishna, the Vedic period was a more a pastoral rather than agricultural. The life of the people at that time was bounded or we can say that was shackled with cow. In bhagwad gita it is very well said in Sanskrit

Aayudhaanaamahamvairam dhenoonaamasmi Kaamadhuk |

Prajanashchaasmi Kandarpaha Sarpaanaamasmi Vaasukihi ||[2]

In this verse Lord Krishna sys that among all cows he exhibit as a Kamadhuk (kamadhenu) which means the wishful filling cows widely and popularly known as Saurabhi Cows. Saurabhi cows are who and how are they so elevated and prominent that they represent a significant portion of the energy of Lord Krishna has been revealed in the information depicted in the Anusasana Parva of the Mahabharat by Krishna Dwaipayana Vyasa.

The saurabhi cows descended from the spiritual world, and in India sacred cows are the descendant of the saurabhi cows. All cows in the world are somehow the factual descendant of the sacred cows of India they are pious as well as should be respected, cared and lovingly cared. No one should cause any harm in any way to cows and should not even think of eating a flesh of cow as it is the most sinful action in all the creation.

To abrogate the consumption of cow meat has also been scriptured in the RIG VEDA (10.87.16 -19) The fiend who smears himself with flesh of cattle, with flesh of horses and of human bodies,

Who steals the milch­ cow‘s milk away, O Agni­ tear of the heads of such with fiery fury.

The cows gives milk each year, O Man – Regarder let not the Yatudhama ever taste it. If one would him with the biesting, Agni pierce with thy flame his vitals as he meets thee.

Let the fiends drink the poison of the cattle, may Aditi cast off th evildoers.

May the God Savitar give them up the ruin, and be their share of plants and herbs denied them. Agni, from days of old thou slayest demons shall Raksasas in fight o‘ercome thee.

Burn up the foolish ones, the flesh – devourers let none of them escape thine heavenle arrow.[3]

The lines which are plucked out from the RIG VEDA construe that cow slaughter and meat eating as blasphemous while rest of it depicts the stealing of cattle and milk by the demons and evil spirits.

In that era, cow use to be the backbone of the family, life of the hindus were revolving around the cowfom its dairy products to tilling the field. The cow was considered as a caretaker which led to the identification of maternal figure. Hence, the name GAUMATA was given.

In Vedic span cow slaughter wasn‘t a prominent topic, but after 1000A.D. with the invasion of various Islamic rulers of Arab and Turkish origin it became influential as well as controversial for Hindus. In Islamic tradition, they beheaded goats and sheep‘s as a sacrifice. These rulers were not in a habit of eating beef but after arriving in India, they started sacrificing cows in India, on the occasion of Bakri – Id.

Later with the arrival of Ranjit Singh, founder of Sikh Empire from 1801 – 1839, he banned cow slaughter throughout his domain.

Babur, who invaded India and established the Mughal Empire banned cow slaughter in his empire and later many Mughals like Akbar, Jahangir, Ahmed Shah imposed restrictive banned on cow slaughter, but Aurangzeb whose idea was to convert India into Muslim country legalized cow slaughter, in fact he converted one of the Jain temple namely CHINTAMANI PARSHVANATH into a mosque and ordered that cow to be slaughtered in hat sanctum, and later his father restored that building to Hindus.

The last Mughal emperor Bahadur Shah Zafar banned cow slaughter in his reign.

The dawn of British raj in India, changed the scenario of India, britishers had a tradition of eating beef and it was a prominent food for them. the Indians Rebellion of 1857 which was against the British East India Company in which the cow‘s veneration played a prominent role. Some renowned leaders of our country whose aim was to liberate India such as Mahatma Gandhi, Bal Gangadhar Tilak, Lal Lajpat Rai, Rajendra Prasad started to build enthusiasm among people to participate in the Swadeshi Movement and assured that once the goal is achieved, the first step of Swadeshi Government will be to ban the cow slaughter.

In 1940, the Indian National Congress set up an special committee and gave view that cow slaughter should be strictly prohibited in the country but other committees were against the view of prohibiting cow slaughter, as the leather of cow after slaughter should be sold and exported to obtain foreign exchange. In 1944, shortage of cattle made an anxiety to the government and the result of which was banning cow slaughter by the British government in India. Some historical survey between 1717 – 1977 reveals that out of 167 communal riots between Hindus and Muslims 22 cases were of cow slaughter.[4]

POST- INDEPENDENCE PERIOD

Central government in 1950, directed the state government not to prohibit cow slaughter strictly as the good prices in export market will no longer be available, as well as total ban will be pernicious to export trade. Later, in July 1995 the government of India stated before the Supreme Court of India, ―It is obvious that the central government as a whole is encouraging scientific and sustainable development of livestock resources and their efficient utilisation which inter alia include production of quality meat for export as well as for domestic market. This is being done with a view of increasing the national wealth as well as better returns to the farmers. The government has started releasing grants and loans for setting up of modern slaughter house. [5]

JUDICIAL TREND

Legislations

In India, numbers of states have legislations in place to ban slaughter of cows. But now, in some states, only cow slaughter is banned or prohibited which implies slaughter of buffaloes, bulls, bullocks and other cattle can be made for consumption.

In other states like Punjab, Rajasthan, Himachal Pradesh all forms of cattle slaughter is banned. Although there is no nationwide ban on consumption or sale of beef, allowing for importing or sale and for restaurants to serve meat except in Maharashtra.

Goa, Daman & Diu etc. ban slaughter of young cows but allow slaughter for old and sick cows. While Assam, West Bengal requires a FIT for SLAUGHTER‘ certificate for each cow before it is slaughtered, depending upon the age, gender, economic viability which is given when cattle turns economically useless.

There are some states which allow the slaughter of cows even without the need of certificate like Manipur, Meghalaya, Sikkim, Kerala, Arunachal Pradesh, Mizoram, Nagaland and Tripura as the beef consumption is highest there. Kerala holds the distinction of being the only south Indian state having no laws on cattle slaughter.

Constitutional support for ban on cow slaughter

Laws governing cattle slaughter vary from state to state.

―Preservation, Prevention and improvement of stock and prevention of animal diseases, veterinary training and practice is ENTRY 15 of STATE LIST of VII Schedule of the Constitution (article 246) state legislature has exclusive powers for prevention, protection of slaughter of cattle. [6] Prohibition of cow slaughter is also imbibed in DIRECTIVE PRINCIPLES OF STATE POLICY contained in article 48 of the Constitution i.e. ―the state shall endeavour to organize 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 other milch and draught cattle. [7] Article 51A (g) states that ―it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. [8]

Complete ban on slaughter of cows is in consonance with ARTICLE 48, ARTICLE 246(ENTRY 15, STATE LIST) and ARTICLE 51A.

This gives power to state to enact legislations banning cow slaughter which will help improving the fundamental compassion towards living creatures.

Equilibrium of Right to Trade with Protection of Cows:

ARTICLE 19(1) (g) of the Indian Constitution states about the fundamental right to trade which is not an absolute right. This right of trade works in consonance with the reasonable restrictions imposed on right to trade in article 19(2) which implies that the state cannot make any law which restricts the exercise of the right conferred in the interest of the sovereignty and integrity of India, friendly relations with foreign states, public order, security of state, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

These restrictions on fundamental right to carry on trade or business are imposed to protect the interest of general public and are held constitutionally valid in the eyes of law.

As in regard with the cow slaughter, total ban restriction actually tilts more towards being unreasonable. Complete ban is unfair to the butcher communities and put farmers in burden who have to maintain cattle which is no longer of use to them. If a cattle is held to be economically viable and is fit for agricultural purpose, then the legislation imposing a ban on slaughter of the same is considered as reasonable and necessary and is in constitutional consonance with article 19(1).

Laws banning cow slaughter –its validity and constitutionality:

With the inclusion of ARTICLE 246(ENTRY 15 STATE LIST) and ARTICLE 48, several states enacted legislations that prohibits either consumption of beef or the sale of cows (possession) or both.

Madhya Pradesh enacted Madhya Pradesh Agricultural Cattle Preservation Act 1959 that prohibited transport, sale, purchase and disposal of cattle and their progeny (bovines also). These laws however have gone through judicial scrutiny.

Supreme Court decision in Mohd. Hanif Quareshi[9] case in 1958 provided the benchmark for the laws regulating cow slaughter and act as a precedent as was followed for nearly 50 years, wherein a petition was filed by three thousand Muslim Butchers. The petitioners argued that the prohibition on the slaughter of cattle imposed through the CP & BERAR ANIMAL PRESERVATION ACT 1949 as well as the UTTAR PARDESH PREVENTION OF COW SLAUGHTER ACT 1955, curtailed their fundamental freedom of occupation under Article 19(1) (g) as well as denied them of their religious customs of killing goats and sheep‘s during Bakrid, infringing Article 25 and that the total ban was not in the interest of general public.

Supreme Court by 5 judges bench held that:

Total ban on cow slaughter by state is allowed to restrict fundamental freedom by imposing reasonable restrictions in order to uphold Directive Principles of State Policy laid down in Article 48.

Court while considering petitioners contention on right to practice any profession or to carry on any occupation relied on the usefulness of bovine cattle in agrarian economy which includes in milk production, use of bulls for draught power and manure for agriculture and thereby concluded that a total ban on she buffaloes and working bullocks or breeding bulls as long as they are capable of being used as milch or draught cattle was also reasonable and valid and rejected the arguments on right to equality.

Rejected the argument that impugned Act violated Muslims right to profess their religion under article 25 because it found that the sacrifice of cows as a religious duty was not obligatory.

There have been several other challenges to Acts regulating cow slaughter on the grounds of right to religion and right to profess any occupation as stated in Hashumatullah v. State of Madhya Pradesh[10], Abdul Hakim & others v. State of Bihar[11], Mohd. Faruk v. State of Madhya Pradesh[12] wherein Supreme Court held that the total ban on cattle slaughter was not permissible if, under economic conditions, keeping useless bull or bullock be a burden on society and therefore not in public interest.

In State of West Bengal v. Ashutosh Lahiri[13], three judge bench of Supreme Court rendered an important decision. It was contented that state of West Bengal had wrongly invoked section 12 of West Bengal Animal Slaughter Control Act 1950, when it exempted the slaughter of healthy cows on Bakrid occasion on the ground that it was required for the religious purposes of Muslim communities. Power to grant such an exemption was challenged where Supreme Court uphold the Calcutta High Court‘s decision that the slaughter of cows by Muslims on Bakrid was not a religious requirement and therefore the exemption was outside section 12‘s scope.

While the precedent laid down in HANIF QUERESHI case was reversed in the case of Mirzapur Moti Kureshi Kassab[14] in 2005 where 7 judge bench accepted Gujarat Government‘s assertion that new technological and veterinary care developments had extended the economic life of cows. The petitioners here challenged the amendments in section 5 of the Bombay Animal Preservation Act, applicable to state of Gujarat as well, which changed the ban on slaughter of bulls and bullocks under the age of 16 to completion as they become economically unbeneficial over 16 years of age. Court held that preservation and protection of agricultural animals is necessary because of the growing adoption of non -conventional energy sources like biogas, dung for fuel, manure which can even be generated once they become old and therefore can‘t be said as useless. As the protection conferred by the impugned enactment on cow progeny is needed in the nation‘s economy interest as blanket ban on slaughter of bulls and bullocks of all ages in addition to slaughter of cows, was valid and consistent with Article 19(1) (g) and Article 14.

Subsequently, in the judgement delivered in Hinsa Virodhak[15] case of 2008, Supreme Court held that the shutting down of slaughter houses for a limited period of time during Jain festival was reasonable and held that the absolute ban in MIRZAPUR case was unconstitutional as the large number of people are non -vegetarian and cannot be forced to become vegetarian for a long period and what one eats is one‘s personal affair and is a part of right to privacy articulated in Article 21. The state cannot prevent a citizen from possessing and consuming a particular type of food which is not obnoxious.

Constitutionality of legislation regulating slaughter of cows and beef consumption in India articulated in the Maharashtra Animal Preservation Act 1978.

The Amendment Act was passed in 1995 by Maharashtra legislature which received President‘s assent 20 years later. Section 5 of the act sought to extend the bans on slaughter of cows and calves to bulls and bullocks and section 5A and section 5B prohibits the transport, export as well as sale, purchase, disposal of cows, bulls and bullocks for slaughter purposes. Section 5C prohibits the possession of the flesh of cows, bulls or bullocks slaughtered in contravention of the Act. Section 5D prohibits possession of beef, whether or not obtained through lawful slaughter from another state and further the Amendment Act also stipulated the penalty on the accused if any such act is being done in contravention of such provisions.

Maharashtra Beef Ban Law had been amended basically to include section 5D. The Bombay High Court while dealing with contentions before it, determined the constitutionality of the extension of the ban on cow and calf slaughter to bulls and bullocks as was bound by the precedent set in MIRZAPUR case.

Court has not struck the provision imbibed in Section 5A of Beef Ban Law, restricting people from transporting bovine animals outside the state with the knowledge that it will be slaughtered. Court reasoned that if anyone transports a cow, bull or bullock to a place outside Maharashtra for slaughter; the State of Maharashtra cannot term the act of slaughter as an offence as it is outside their legislative competence to do so. Court upheld the provisions validity stating there was a direct and proximate nexus between the section and the object of preserving the cattle inside the state.

Section 5C which deals with the possession of the flesh of the cow, bulls or bullocks slaughtered in contravention of the Act, was upheld as the prohibiting had the direct nexus to the objective of the Act as possession per se is no offence and includes conscious possession as an offence.

Court has struck down the provision of the law dealing with procurement from outside Maharashtra (section 5D), as it is unconstitutional and infringes the right to privacy included in the right to life and personal liberty (Article 21), as it includes the right to eat food of one‘s own choice. If a person procures beef from a place where it is legal to consume and possess beef, law cannot prohibit him from eating it. The court here relied on the judgement of Supreme Court in HINSA VIRODHAK which addressed that ―the state cannot prevent a citizen from possessing and consuming a food which is not obnoxious and if state does so, it amounts to infringement of Article 21.

The judgement clearly allows import of beef from outside but the consumers and the sellers of beef have to obtain a proof of invoice to show that the meat is procured from outside, and the onus lies on the police to prove the guilt of someone found in beef possession and to examine the same. Importers and exporters have to be monitored then carefully and also the starting of the procurement process is to be traced.

“Therefore, preventing citizens from eating beef obtained from a state where there is no prohibition on slaughter was not in consonance with the objective of protecting the cow progeny, from slaughter within the state, and it restricts the scope of state intervention beyond agricultural interest.

REALITY CHECK

In 1947, the Ministry of Agriculture appointed The Cattle Preservation and development Committee, which raised the most prominent issue banning cattle slaughter, recommending preservation of cattle wealth and hence promoting its development. An Expert Committee under the Chairmanship of Sardar Bahadur Datar Singh was constituted by Government Resolution dated 19th November 1947G. The introductory part of the Resolution reads as follows:

―It has been brought to the notice of the Government of India that large numbers of cattle are annually slaughtered in this country for meat, that this slaughter is often indiscriminate, that it includes animals of all ages and qualities and that the slaughter results in short supplies of milk and work bullocks and in the depletion of the country‘s cattle wealth. There has been considerable agitation in the press, on the platform and on the floor of the Legislature in regard to this matter, and Government has been urged to take immediate steps to prohibit slaughter by legislation. As this is a complicated socio -religious subject the Government of India have after careful consideration decided to appoint an Export Committee of officials and non -officials to consider the question in all its aspects and to recommend a comprehensive plan of action which can be put into immediate effect for preserving the cattle wealth of the country and for promoting its development.

In considering, this particular, attention should be given to:

1. The cause and the extent of periodical variation in the population of each class of cattle and the effect of such variation on the supply of milk and bullock power.
2. Detailed examination of the available statistics of slaughter, proportion of useful animals therein and an estimate of the material loss caused thereby.
3. Population trend of old and unproductive cattle and the problem of their maintenance and economic utilization in view both of shortage of cattle feed and of prevailing sentiments against slaughter.
4. How agencies like Gaushalas and Cattle Protection Societies and Salvage Centres can be utilized for preserving cattle wealth and for promoting its development.
5. Review of existing regulations regarding restrictions on cattle slaughter and of the administrative arrangements for the enforcement of the regulations[16]

Also, the slaughter of cattle is not desirable in India under any circumstances whatsoever, and that its prohibition shall be enforced by law. The Committee suggested that, the first stage, which should be given effect to immediately, should cover the total prohibition of slaughter of all useful cattle other than a) animals over 14 years of age and unfit for work and breeding and b) animals of any age permanently unable to work or breed owing to age, injury or deformity. The committee also suggested that unlicensed and unauthorized slaughter of cattle should be immediately prohibited and made a cognizable offence under law. In the second stage, the Committee envisaged that slaughter of cattle should be prohibited totally. The Committee also made suggestions for arrangements for maintenance and care of serviceable and unproductive cattle and for development of feed and fodder etc.[17]

CONCLUSION

Life of a human being revolves around the four basic fundamental principles – DHARMA i.e.(religion), ARTHA(aim), KAMA(preaching) and MOKSHA(liberation). Cow slaughter, being the leading factor behind incessant communal riots in India, resulting in the deaths of many, leads to the violation of the four basic fundamental principles of a human life as stated above.

In spite of various legislations articulated in Article 48, Article 51A (g) and Article 246(entry 15, state list) of the Indian Constitution banning cattle slaughter, India is still the largest exporter and consumer of beef. Slaughtering of cows is not considered merely a religious rather a legal offence which should be penalized. Stringent laws for the protection and prevention of cattle wealth have to be executed by the Central Government and not merely by the State Governments , as it is vital to respect the sentiments in a pluralistic democracy.

REFERENCES

1. Sanskrit shlok by lord Krishna given in srimad bhagwad gita : in chapter 10 verse 28
2. Sankrit shlok by lord Krishna given in srimad bhagwad gita : in chapter 10 verse 28
3. Lines stated in RIG VEDA (10.87 16 -19)
4. Report on National Commission on cattle, chapter II(Cow Protection in Pre Independence India)
5. ab Report of National Commission on Cattle – Chapter I (13 Constituent Assembly Debate On Cow Protection)
6. CONSTITUTION OF INDIA, 1950
7. CONSTITUTION OF INDIA,1950
8. CONSTITUTION OF INDIA, 1950
9. Mohd. Hanif Quareshi & Other vs The State Of Bihar( AIR 1959 SCR 629) 10. 1996(4)SCC 391

11. AIR 1961 SC 448

12. 1970 AIR 93, 1970 SCR(1) 156

13. 1995 AIR 464, 1995 SCC(1) 189

1. State Of Gujarat vs Mirzapur Moti Kureshi Kassab; (2005)8 SCC 534
2. Hinsa Virodhak Sangh vs. Mirzapur Moti Kuresh Jamat & Ors. AIR 2008 SC 1892
3. 16.2 CHAPTER II EXECUTIVE SUMMARY(http://dahd –archive.nic.in/dahd/reports/report -of -the – national -commission -on -cattle/chapter -ii -executive -summary.aspx)
4. 16.4 CHAPTER II EXECUTIVE SUMMARY(http://dahd –archive.nic.in/dahd/reports/report -of -the – national -commission -on -cattle/chapter -ii -executive -summary.aspx)