Constitutional validity of Cow Slaughter Ban in Maharashtra – a detailed analysis

Constitutional validity of Cow Slaughter Ban in Maharashtra – a detailed analysis

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Maharashtra Legislature had passed the Maharashtra Animal Preservation (Amendment) Bill, 1995, in the year 1995 when the Shiv Sena – BJP ruled the state. This Bill has now been assented to by the President Shri Pranab Mukherjee after a long gap of nearly 19 years. The newly passed Bill amends the Maharashtra Animal Preservation Act of 1976 under which slaughter of cows was already prohibited in Maharashtra. With this new Amendment, the slaughter of bulls as well as bullocks (which was previously allowed based on a fit-for-slaughter certificate) will also be banned now. [Note: Copy of the new Amendment is still not available online. Therefore, I am writing this article based on the information available in media.]

Ban on slaughter of cows and its progeny

After the news of this Amendment having become law came out, mainstream media and social media have gone overboard with all types of hate messages. Many people have tried to slam the new law to be on account of the religious views of Hindus and the BJP. Many legal questions are being raised about the validity of the new law. Questions about the fundamental rights of the butchers are being raised. Questions about the rights of the beef-eaters have also been raised. Many of the comments appearing on the social media (and, unfortunately even on the mainstream media, especially in the comments sections) have gone on religious lines, targeting Hindu practices.

The objective of this article is not to reply to the hate messages on the religious lines, but to comment on the constitutional and legal validity of the new Amendment in law for the state of Maharashtra. Let me point out at the outset itself that the constitutional validity of similar laws has already been upheld by the Supreme Court and these decisions of the Supreme Court will be discussed in the ensuing paragraphs in detail.

Firstly, let me point out that there are only 7 States or Union Territories in India (out of a total of 29 States and 7 UTs), namely, Arunachal Pradesh, Kerala, Meghalaya, Mizoram, Nagaland, Tripura and Lakshadweep, which have no law banning cow slaughter in one form or another. All other remaining 29 States and UTs have enacted laws to prevent the slaughter of cow and its progeny in one form or another.

However, various State laws banning cattle slaughter are not similar and there are many variations. The laws in Delhi, Gujarat, Madhya Pradesh, Punjab, Rajasthan and Uttar Pradesh completely ban the slaughter of cow and its progeny, including bulls and bullocks of all ages. Laws of other States ban slaughter of cow and its progeny in varying degrees. In fact, most of these State laws prohibit the slaughter of cows of all ages. But, Assam, Tamil Nadu and West Bengal laws permit the slaughter of cows of over a particular age, as laid down in those laws. There are varying provisions in these State laws for ban on slaughter of calf, bulls and bullocks.

What I would like to say is that it is not that cow slaughter is being banned in any State for the first time. As mentioned above, as many as 29 States or Union Territories (out of a total of 36) already have laws banning slaughter of cow or its progeny. Some of these state laws even completely ban slaughter of cow and its progeny, for example the Gujarat law. Even in Maharashtra, there is already a law banning cow slaughter. However, with this new Amendment in the said law, the scope of the ban on slaughter has been extended and it appears from media reports that now even the slaughter of bulls and bullocks has also been completely banned. Therefore, the new law in Maharashtra should be seen in the context of the laws already existing in other states that ban (completely or subject to certain conditions) slaughter of cow and/or its progeny. At the outset itself, let me point out again that these laws have mostly be upheld by the Supreme Court.

Now, let me discuss, in detail, the question of legal and constitutional validity of the laws banning cow slaughter.

Firstly, Entry No. 15 in the State List in Seventh Schedule to the Constitution of India lays down as under:

“15. Preservation, protection and improvement of stock and prevention of animal diseases; veterinary training and practice.”

This means that the enactment of laws banning the slaughter of cow and its progeny is within the exclusive powers of the State legislatures. That is why various states have enacted their own laws banning cow slaughter to various degrees, and there are certain states (such as Kerala) where there is no such law. This also explains as to why there is no Central law on this subject (however, there are certain provisions in the Constitution which may still allow a Central law on a subject which is in the State List in the Seventh Schedule, under certain situations, e.g., Articles 249, 250, 252 and 253 of the Constitution).

Secondly, Article 48 of the Constitution lays down a directive principle of state policy which directs (though it is not binding and it is not enforceable) the State to prohibit cow slaughter, by providing as under:

48. Organisation of agriculture and animal husbandry.—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.”

Certain other directive principles contained in the Constitution, which are relevant for this purpose, are Article 48-A and clause (g) of Article 51-A of the Constitution, which are reproduced below:

48-A. Protection and improvement of environment and safeguarding of forests and wild life.—The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.”

51-A. Fundamental duties.—It shall be the duty of every citizen of India—

*** *** ***

(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;”.

Therefore, it should be clear at the outset itself that the Constitution itself requires the State to enact laws to ban cow slaughter, and to protect the environment / forests / wild-life of the country. The Constitution also casts a fundamental duty on every citizen of India to have compassion for living creatures and to protect and improve environment / forests / wild-life, etc. Therefore, a law banning cow slaughter should not be considered something that is unconstitutional per se.

Let me now point out that a large number of petitions, etc., have been filed before various High Courts and the Supreme Court challenging various state laws banning cow slaughter. In fact, this issue has gone even up to a 7-judge bench of the Supreme Court, which is very rare. Therefore, the question about the validity of the laws banning cow slaughter is no longer res integra. This question has already been decided by the Supreme Court on various occasions and laws banning cow slaughter have generally been held to be constitutionally valid.

Let us analyse some of these judgments of the Supreme Court where laws banning cow slaughter were challenged.

In the case of Mohd. Hanif Quareshi v. State of Bihar, 1959 SCR 629 : AIR 1958 SC 731, which was decided by a 5-judge Constitution bench of the Supreme Court, the challenge was to three laws banning the slaughter of certain animals, passed by the States of Bihar, Uttar Pradesh and Madhya Pradesh. In Bihar, the Bihar Preservation and Improvement of Animals Act, 1956, was introduced which imposed a total ban on the slaughter of all categories of animals belonging to the species of bovine cattle. In Uttar Pradesh, the Uttar Pradesh Prevention of Cow Slaughter Act, 1955, was enacted which also imposed a total ban on the slaughter of cows and her progeny which included bulls, bullocks, heifers and cows. In the State of Madhya Pradesh, it was the CP and Berar Animal Preservation Act, 1949, which was amended and applied and it imposed a total ban on the slaughter of cows and female calf of a cow, while the male calf of a cow, bull, bullock, buffalo (male or female, adult or calf) could be slaughtered only on obtaining a certificate.

Following three grounds for challenging the constitutional validity of these 3 laws were discussed in the above judgment:

  1. that the total ban offended the religion of the Muslims as the sacrifice of a cow on a particular day is enjoined or sanctioned by Islam;
  2. that such ban offended the fundamental right guaranteed to the kasais (butchers) under Article 19(1)(g) of the Constitution and was not a reasonable and valid restriction on their right; and
  3. that a total ban was not in the interest of the general public.

The Supreme Court held as under:

  1. A total ban on the slaughter of cows of all ages and calves of cows and calves of she-buffaloes, male or female, was quite reasonable and valid and is in consonance with the directive principles laid down in Article 48;
  2. A total ban on the slaughter of she-buffaloes or breeding bulls or working bullocks (cattle as well as buffaloes) as long as they are capable of being used as milch or draught cattle was also reasonable and valid;
  3. A total ban on slaughter of she-buffaloes, bulls and bullocks (cattle or buffalo) after they ceased to be capable of yielding milk or of breeding or working as draught animals could not be supported as reasonable in the interests of the general public, and was invalid.

The above-mentioned first ground of challenge (i.e., that the total ban offended the religion of the Muslims as the sacrifice of a cow on a particular day is enjoined or sanctioned by Islam) was rejected by the Constitution bench of the Supreme Court due to the meagre materials placed before the Court and the bald allegations and denials made by the parties. It was noticed that many Muslims do not sacrifice cows on BakrI’d day. The Supreme Court further observed as under:

“It is part of the known history of India that the Moghul Emperor Babar saw the wisdom of prohibiting the slaughter of cows as and by way of religious sacrifice and directed his son Humayun to follow this example. Similarly, Emperors Akbar, Jehangir and Ahmad Shah, it is said, prohibited cow slaughter. Nawab Hyder Ali of Mysore made cow slaughter an offence punishable with the cutting of the hands of the offenders. Three of the members of the Gosamvardhan Enquiry Committee set up by the Uttar Pradesh Government in 1953 were Muslims and concurred in the unanimous recommendation for total ban on slaughter of cows. We have, however, no material on the record before us which will enable us to say, in the face of the foregoing facts, that the sacrifice of a cow on that day is an obligatory overt act for a Mussalman to exhibit his religious belief and idea. In the premises, it is not possible for us to uphold this claim of the petitioners.”

Moreover, the challenge to the constitutional validity of the said laws on the basis of the right to equality under Article 14 was also clearly rejected by the Supreme Court.

The question whether the restrictions permissible under clause (6) of Article 19 of the Constitution may extend to “total prohibition” [on the contended fundamental right of the butchers to slaughter animals of their liking or in which they were trading] was treated by Supreme Court as a vexed question and was left open without expressing any final opinion since the Supreme Court decided to concentrate on the issue as to whether the restriction was at all reasonable in the interests of the general public, irrespective of the fact whether it could be held to be partial or total.

After considering a lot of documentary evidence, the Supreme Court arrived at certain findings of fact. The court opined that cow progeny ceased to be useful as a draught cattle after a certain age and they, although useful otherwise, became a burden on the limited fodder available which, but for the so-called useless animals, would be available for consumption by milch and draught animals. The Court also noted that the response of the States in setting up gosadans (protection homes for cows and cow progeny) was very poor. On the basis of these facts, the Court concluded that in spite of there being a presumption in favour of the validity of the legislation and respect for the opinion of the legislatures as expressed by the three impugned laws, they were inclined to hold that a total ban of the nature imposed could not be supported as reasonable in the interests of the general public.

Thereafter, in another case vide Abdul Hakim Quraishi v. State of Bihar, (1961) 2 SCR 610 : AIR 1961 SC 448 : (1961) 1 Cri LJ 573, which was also decided by a 5-judge Constitution Bench of the Supreme Court, certain amendments made to the aforesaid 3 laws in the States of Bihar, Madhya Pradesh and Uttar Pradesh were challenged on the ground of Article 19(1)(g) read with Article 19(6) of the Constitution. Relying upon the aforesaid earlier decision in the case of Mohd. Hanif Quareshi v. State of Bihar, 1959 SCR 629 : AIR 1958 SC 731, it was held that the ban as imposed by the impugned Act was “total” and hence an unreasonable restriction.

Similarly, in the case of Mohd. Faruk v. State of M.P., (1969) 1 SCC 853, another 5-judge Constitution bench of the Supreme Court struck down a notification issued by the State Government whereby the earlier notification issued by the Jabalpur Municipality, which permitted the slaughter of bulls and bullocks along with other animals was recalled. Drawing a distinction between cases of “control” and “prohibition”, the Supreme Court held that when the exercise of a fundamental right is prohibited, the burden of proving that a total ban on the exercise of the right alone would ensure the maintenance of the general public interest lies heavily upon the State. Since the State Government failed in discharging that burden, the said notification was held struck down.

In the case of Haji Usmanbhai Hasanbhai Qureshi v. State of Gujarat, (1986) 3 SCC 12, the constitutional validity of the provisions of law amended in Gujarat banning the slaughter of bulls and bullocks below the age of 16 years was challenged. A legislation called the Bombay Animal Preservation (Gujarat Amendment) Act, 1979, which amended the Bombay Animal Preservation Act, 1954, in its application to Gujarat State, was passed by the Gujarat Assembly. By insertion of a new sub-section (1-A) in Section 5 of the said Bombay Act, slaughter of a bull and a bullock below the age of 16 years was banned by clauses (c) and (d) of the said sub-section (1-A), respectively. This amendment banning the slaughter of bulls and bullocks below the age of 16 years was challenged by the petitioners who pleaded that such a restriction on their right to carry on the trade or business in beef and allied articles was unreasonable. Another plea on their behalf was that the total ban offended their religion as qurbani (sacrifice) at the time of BakrI’d or Id festival is enjoined and sanctioned by Islam. However, the High Court rejected the challenge on both the grounds. Appeal against this decision of the High Court was dismissed by a 5-judge Constitution bench of the Supreme Court. As the bulls and bullocks up to the age of 16 years continued to be useful, the prescription of the age of 16 years up to which they could not be slaughtered was held to be a reasonable restriction, keeping in mind the balance which has to be struck between public interest which requires useful animals to be preserved, and permitting the said petitioners to carry on their trade and profession. It was held that the test of reasonableness of the restriction on the fundamental right guaranteed by Article 19(1)(g) was satisfied.

In the case of Hashmattullah v. State of M.P., (1996) 4 SCC 391, a total ban on the slaughter of bulls and bullocks in the State of Madhya Pradesh imposed in the M.P. Krishik Pashu Parirakshan (Sanshodhan) Adhiniyam, 1991, was challenged. A 3-judge bench of the Supreme Court struck down the said amending Act as being ultra vires the Constitution.

In State of W.B. v. Ashutosh Lahiri, (1995) 1 SCC 189, an important decision was rendered by a 3-judge bench of the Supreme Court. It was contended that the State of West Bengal had wrongly invoked Section 12 of the West Bengal Animal Slaughter Control Act, 1950, when it exempted from the operation of the Act, the slaughter of healthy cows on the occasion of BakrI’d on the ground that such exemption was required to be given for the religious purpose of Muslim community. The power to grant such an exemption was challenged. The Calcutta High Court held that such slaughter of cows by members of Muslim community on BakrI’d day was not a requirement of Muslim religion and, therefore, such exemption was outside the scope of Section 12 of the Act. Consequently, the impugned order was held to be dehors the statute. Thus, the High Court struck down the power of the State Government to grant such an exemption. There was a total ban imposed on the slaughter of healthy cows and other animals mentioned in the Schedule under Section 2 of the Act. The State of West Bengal appealed against this order of the High Court. In appeal, the Supreme Court held that it was a settled legal position that there was no fundamental right of Muslims to insist on slaughter of healthy cows on the occasion of BakrI’d. The contention that not only an essential religious practice under Article 25(1) of the Constitution, but even optional religious practice could be permitted, was discarded by the Supreme Court. By upholding the view taken by the High Court, the Supreme Court held as under (para 9 of SCC):

“We, therefore, entirely concur with the view of the High Court that slaughtering of healthy cows on BakrI’d is not essential or required for religious purpose of Muslims or in other words it is not a part of religious requirement for a Muslim that a cow must be necessarily sacrificed for earning religious merit on BakrI’d.”

The case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534, is the most important judgment on the issue of banning of cow slaughter. This case was decided by a 7-judge Constitution bench of the Supreme Court, which is the largest bench so far on this issue. The majority decision in this case was delivered by 6 judges (written by Chief Justice R.C. Lahoti) and a minority decision was delivered by a single judge (Justice A.K. Mathur). The issue in this case related to Section 2 of the Bombay Animal Preservation (Gujarat Amendment) Act, 1994, which had introduced certain amendments in Section 5 of the Bombay Animal Preservation Act, 1954 (as applicable to the State of Gujarat).

The effect of the aforesaid amendment was that the slaughter of bull or bullock of any age whatsoever was completely banned (previously, the ban was only on the slaughter of bulls and bullocks below the age of 16 years), which was under challenge in this case. The complete ban on the slaughter of cows was already there in the Act and that was not under challenge in this case.

The Statement of Objects and Reasons of the said Amendment Act are important and its relevant extract are reproduced below:

“The existing provisions of the Bombay Animal Preservation Act, 1954 provides for prohibition against the slaughter of cow, calf of a cow, and the bulls and bullocks below the age of sixteen years. It is an established fact that the cow and her progeny sustain the health of the nation by giving them the life-giving milk which is so essential an item in a scientifically balanced diet.

The economy of the State of Gujarat is still predominantly agricultural. In the agricultural sector, use of animals for milch, draught, breeding or agricultural purposes has great importance. It has, therefore, become necessary to emphasise preservation and protection of agricultural animals like bulls and bullocks. With the growing adoption of non-conventional energy sources like biogas plants, even waste material has come to assume considerable value. After the cattle cease to breed or are too old to do work, they still continue to give dung for fuel, manure and biogas, and therefore, they cannot be said to be useless. It is well established that the backbone of Indian agriculture is, in a manner of speaking, the cow and her progeny and have on their back, the whole structure of the Indian agriculture and its economic system.

In order to give effect to the policy of the State towards securing the principles laid down in Articles 47, 48 and clauses (b) and (c) of Article 39 of the Constitution, it was considered necessary also to impose total prohibition against slaughter of progeny of cow.

*** *** ***.”

Likewise, the Preamble to the above Amendment Act is also of significance and is reproduced below:

“WHEREAS it is established that cow and her progeny sustain the health of the nation by giving them the life-giving milk which is so essential an item in a scientifically balanced diet;

AND WHEREAS the working bullocks are indispensable for our agriculture for they supply power more than any other animal;

AND WHEREAS the working bullocks are often useful in ploughing the fields, drawal of water from the wells and also very useful for drawing carts for transporting grain and fodder from the fields to the residences of farmers as well as to the agricultural market yards;

AND WHEREAS the dung of the animal is cheaper than the artificial manures and extremely useful for production of biogas;

AND WHEREAS it is established that the backbone of Indian agriculture is, in a manner of speaking, the cow and her progeny and have, on their back, the whole structure of the Indian agriculture and its economic system;

AND WHEREAS it is expedient to give effect to the policy of the State towards securing the principles laid down in Articles 47, 48 and in clauses (b) and (c) of Article 39 of the Constitution and to protect, preserve and sustain cow and its progeny;”

This Amendment Act was challenged before the Gujarat High Court and it had been struck down as ultra vires the Constitution by the High Court. This order of the High Court was under challenge before the above 7-judge bench of the Supreme Court.

The Supreme Court, by a detailed judgment examining all relevant issues and reviewing all previous judgments, by a majority decision of 6-1, set aside the aforesaid order of the Gujarat High Court and upheld the constitutional validity of the Bombay Animal Preservation (Gujarat Amendment) Act, 1994, which had introduced the aforesaid amendments in Section 5 of the Bombay Animal Preservation Act, 1954 (as applicable to the State of Gujarat) as per which even the slaughter of bulls and bullocks of any age whatsoever was completely banned in addition to the complete ban of the slaughter of cows.

It is pertinent to note that this 7-judge decision of the Supreme Court reversed / overruled the earlier 5-judge bench decisions in the aforesaid cases of Mohd. Hanif Quareshi v. State of Bihar, 1959 SCR 629 : AIR 1958 SC 731, and Abdul Hakim Quraishi v. State of Bihar, (1961) 2 SCR 610 : AIR 1961 SC 448 : (1961) 1 Cri LJ 573, etc., to the extent they had ruled that a total ban on slaughter of bulls and bullocks cannot be made on the ground of Article 19(1)(g) read with Article 19(6) of the Constitution.

The 7-judge bench of the Supreme Court held that:

“In the light of the material available in abundance before us, there is no escape from the conclusion that the protection conferred by the impugned enactment on cow progeny is needed in the interest of the nation’s economy. Merely because it may cause “inconvenience” or some “dislocation” to the butchers, restriction imposed by the impugned enactment does not cease to be in the interest of the general public. The former must yield to the latter.”

The Supreme Court repelled all arguments on the grounds of fundamental rights under Article 14, Article 19(1)(g), etc., of the Constitution to challenge the aforesaid total ban on the slaughter of cow and its progeny. The argument based on religion or on fundamental right under Article 25 of the Constitution was not discussed since none of parties tried to build its case on these grounds; however, still the Court took note of the above-mentioned observations of the 3-judge bench of the Supreme Court in the case of State of W.B. v. Ashutosh Lahiri, (1995) 1 SCC 189, to the effect that “slaughtering of healthy cows on BakrI’d is not essential or required for religious purpose of Muslims” and the Court also made following observations:

“…Slaughtering of cows on BakrI’d is neither essential to nor necessarily required as part of the religious ceremony. An optional religious practice is not covered by Article 25(1). On the contrary, it is common knowledge that the cow and its progeny i.e. bull, bullocks and calves are worshipped by Hindus on specified days during Diwali and other festivals like Makar Sankranti and Gopashtmi. A good number of temples are to be found where the statue of “Nandi” or “Bull” is regularly worshipped. …”.

Conclusion:

Thus, the aforesaid analysis of the provisions of the Constitution and various judgments of the Supreme Court, unequivocally shows that even a total ban on the slaughter of cow and its progeny is absolutely constitutional. A total ban on slaughter of cow and its progeny is fully permissible under the Constitution of India. Moreover, as mentioned above, many States / UTs in India have already banned cow slaughter either totally or partially; and such ban has been upheld by the courts. So, Maharashtra is not the first or the only State to ban slaughter of cow and its progeny.

Thus, there does not appear to be anything illegal or unconstitutional in the Maharashtra Animal Preservation (Amendment) Bill, 1995, which has been assented to by the President of India, and which has now become a law of the land for the State of Maharashtra.

As mentioned above, I have confined my analysis only to the legal issues and I have preferred not to reply to the religious issues. If need be, at a later stage, I may reply to those other issues as well, which I don’t think to be necessary at this stage. At this stage, it suffices to say that the constitutionality of the laws banning slaughter of cow and its progeny has been upheld by the Supreme Court on secular grounds on the basis of the provisions existing in the Constitution. Therefore, my humble request is to everybody to desist from making hate speeches on religious grounds on this issue.

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