In a previous entry in this column, “Holy cow! It’s always been about politics, not religion” (Jan 9, 2022), I had written about the confusing and contradictory path the Constitution-makers had taken when it came to the matter of cow-slaughter. Although there was a demand to ban cow-slaughter on the same lines as the ban on untouchability, opposition from minority members of the Assembly meant that a compromise was found, and what is now Article 48 was introduced into the Constitution.
Article 48 itself is interestingly structured. It states:
“The State shall endeavour to organise 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 calves and other milch and draught cattle.”
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Though the debate is all about banning cow-slaughter, the slaughter part is slipped into the last third of the sentence as though it was an afterthought in the context of this Article. This compromise left no one happy. The Hindu members who pushed for it thought it was dilution of a core Congress demand, and those who opposed it thought it provided a backdoor for a complete and total ban on cow-slaughter affecting the lives and livelihoods of Muslims and Dalits. Post-independence developments show that those opposed to it were right.
Even if the Constitution did not ban cow-slaughter, various state legislatures took Article 48 as a sign that they could go down that path. Soon after the Constitution came into effect, several states passed laws which prohibited the slaughter of not just cows but all kinds of cattle, including buffaloes. One such law was the innocuously titled Bihar Preservation and Improvement of Animals Act, 1955, which imposed a total prohibition on slaughter of all cattle.
The constitutional validity of this law was challenged in Mohd Hanif Kureshi v State of Bihar (1956) by a range of petitioners, from butchers to merchants who dealt with animal guts, as being violative of their right to carry on trade, business and profession, apart from their religious rights under Article 25. The state government defended it by saying that this was nothing but a law which implemented the directive principle in Article 48 and therefore justified.
A five-judge bench of the Supreme Court in this case attempted to strike the same kind of balance that the Constitution-makers had. They upheld the law to the extent they banned the slaughter of cows, buffaloes and calves but struck down those parts of the law which attempted to ban the slaughter of buffaloes and bullocks beyond breeding or milk-producing age. Quite strangely, half the judgement isn’t a discussion of the law but a discussion of various reports talking about the economic benefits of cows and cattle and the need to ban their slaughter.
This balance was, however, overturned in 2005 by the Supreme Court in an even more bizarre judgement in State of Gujarat v Mirzapur Moti Kureshi Kassab. Here, a seven-judge bench decision endorsed Gujarat’s complete and total prohibition of slaughter of all cattle irrespective of age, gender or usefulness, relying, like the earlier bench, much more on the reports of commissions and committees, and less on the law itself. Whereas the earlier judgement in 1956 at least acknowledged the harm to the livelihoods a total ban would have, the 2005 judgement dismissed it as a mere “inconvenience”.
Since this judgement, total bans on cattle slaughter have proliferated with no concern for the loss of livelihoods of not just butchers or merchants but also millions of farmers who are saddled with cattle they can no longer maintain. One can’t help but get the sense that cattle got a more compassionate consideration in the courts than the people affected by the law.