The following is a guest post by Tariq Ahmad, a legal research analyst in the Global Legal Research Directorate of the Law Library of Congress. Tariq has previously contributed posts on Islamic Law in Pakistan – Global Legal Collection Highlights, the Law Library’s June 4, 2013 Panel Discussion on Islamic Law, Sedition Law in India, and an FALQ post on Proposals to Reform Pakistan’s Blasphemy Laws. This blog post is part of our Frequently Asked Legal Questions series.
In the last several months cow slaughter has re-emerged as a major socially and politically divisive issue in India. In the absence of a central law, efforts are being made in a number of India’s 29 states and seven union territories (federally-administered regions) to tighten laws on cattle slaughter and to more strictly enforce bans already in place. Most, though not all, Hindus (who make up close to 80% of India’s 1.2 billion population) consider the cow to be a sacred and revered animal. However, beef is also considered a staple part of the diet by many Muslims, Christians, tribal communities, and Dalits (lower caste Hindus) in the country. It is also reportedly considerably less expensive than chicken and fish. Concern has also arisen about how sudden bans would impact the livelihood of members of the large beef slaughter and leather industries, which are mainly dominated by Muslim butchers and traders, and which “employ or contribute to the employment of millions of people.” Critics are also concerned that the increasingly “religiously-charged public discourse” surrounding the consumption of beef could undermine the secular ethos of the country.
Despite the ban on cow slaughter in most Indian states and the taboo nature of its consumption, beef is “big business” in the country. Currently, according to the United States Department of Agriculture, India is the world’s biggest exporter of beef.
This post explains some of the recent controversies surrounding beef bans in India, the constitutional provisions used to establish jurisdiction for or justify the laws, and the positions the Supreme Court of India has taken over the years on the constitutionality of these laws and regulations.
1. What led to the current controversy over beef bans in India?
The controversy resurfaced in the headlines when on March 2, 2015, the President of India, Pranab Mukherjee, gave his assent to the Maharashtra Animal Preservation (Amendment) Act, 1995, nearly 19 years after the amending legislation was passed by the BJP-Shiv Sena led Maharashtra State Assembly in 1995. BJP (the Bharatiya Janata Party, which translates to the Indian People’s Party) has historically been one of two major political parties in India, and is seen as being associated with Hindu nationalism. Shiv Sena is a smaller party with a strong Hindu nationalist ideology.
The law amends the Maharashtra Animal Preservation Act, 1976, to extend the complete ban on the slaughter of cows to bulls and bullocks. Prior to the amendment, bulls and bullocks were considered “scheduled animals,” meaning that approval for slaughter could be granted if a fit-for-slaughter certificate is issued for the animal. Authorities were only permitted to grant such a certificate if the animal is not considered economical for the purposes of agriculture, draught, breeding, or providing milk or bearing offspring. The term of imprisonment for contravening the ban was also raised from six months to five years, and the possible fine raised from 1,000 rupees to 10,000 rupees (about US$152). Additional criminal provisions were inserted into the Act to prohibit the transport, export, sale, purchase, or disposal of cows, bulls, and bullocks for the purposes of slaughter. A new section 5D was also added to prohibit the possession of the flesh of animals slaughtered in contravention of the Act.
The amending legislation is currently under review by the High Court of Bombay, which refused to grant interim relief to stay the provisions until it finally decides upon the legality of the law. However, on April 29, 2015, the Court directed the state government to not enforce the law for a period of three months, or until the final hearing of petitions against the law, to give citizens a reasonable amount of time to dispose of meats that are subject of the ban. On September 22, the Court refused to relax the ban for a three day period during the Islamic religious holiday of Bakr-Eid.
On March 16, 2015, the state assembly of Haryana passed new legislation, which the State Animal Husbandry and Dairy Development Minister characterized as the most stringent in the country. According to news reports, the law bans cow slaughter, the sale of beef and beef products “except for medicinal purposes,” and the export of cows without an authorized permit. The punishment for cow slaughter is three to 10 years’ imprisonment and a fine of up to 100,000 rupees (about US$1,522).
On September 9, 2015, further controversy arose when the High Court in the Muslim majority state of Jammu and Kashimir (Indian-administered Kashmir) urged the state government to implement an existing ban on the slaughter and sale of beef contained in the 1932 Ranbir Penal Code. A week later, however, another division bench of the High Court in Srinagar admitted a writ petition challenging the constitutional validity of the penal provisions that instituted the ban. In response to the “conflicting” orders between two benches of the High Court, the Supreme Court of India suspended the ban for two months and directed the chief justice of the High Court to establish a larger bench to resolve the contentions. On October 16, 2015, the full bench of the High Court set aside the initial order and directed the “State government and the legislature to consider the issue.”
Recent outrage also erupted over temporary bans on the slaughter and sale of all meat in the city of Mumbai and a number of other states and localities that were imposed in deference to the religious festival of Paryushana, which is observed by the strictly vegetarian Jain community. On September 14, 2015, the High Court of Bombay lifted the ban on the sale of meat for a certain day.
Despite repeated, failed attempts in the past to enact nationwide legislation on cattle slaughter, the home minister, Rajnath Singh, has recently implied that the central government will again try to bring a nationwide ban on cow slaughter. However, “getting such a legislation cleared by the Parliament is not guaranteed as it [the BJP-led government] is short of a majority in the upper house.”
The issue of beef consumption has also led to recent incidents of communal violence and social conflict. On October 12, 2015, in the village of Bisara near the northern Indian city of Dadri (in the state of Uttar Pradesh), a Muslim man was beaten to death by a mob based on the rumor that he and his family were storing and consuming beef. His son was also seriously injured in the attack.
2. What constitutional provisions apply to laws relating to cattle slaughter?
The regulation of cow slaughter is seen as a state matter under India’s Constitution. The list of areas for which the states are responsible, contained in the seventh schedule of the Constitution, includes, as Entry 15, “[p]reservation, protection and improvement of stock and prevention of animal diseases; veterinary training and practice.” Various state-level laws restricting or prohibiting cattle slaughter have been justified based on a number of Directive Principles of State Policy contained in the Constitution. These are “guidelines for the government while framing laws and polices” and are nonjusticiable. For example, article 48 states that:
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.
Constitutional justifications for cattle protection are also made on the basis of animal and environmental protection policy additions made to the Constitution. Articles 48-A and 51-A were introduced pursuant to the Constitution (Forty-second Amendment) Act, 1976. Article 48-A stipulates that the “State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.” This is categorized as a directive principle of state policy. Article 51-A(g) (also nonjusticiable) makes it a fundamental duty of every citizen to “protect and improve the natural environment, including forests, lakes, rivers and wild life, and to have compassion for living creatures.”
3. How similar are the various state-level laws banning or restricting cattle slaughter?
India’s legislation on the slaughter of cows, bullocks, and buffaloes vary from one state to another. The north, central, and western regions of India appear to have the most stringent laws, while the southern and northeastern states appear to be relatively permissive. According to information from the Department of Animal Husbandry, Dairying & Fisheries and a BBC report, 19 states and six union territories ban the slaughter of cows. According to the same BBC report, “[e]leven states and two union territories ban slaughter of cows, calves, bulls and bullocks.” These states include: Himachal Pradesh, Indian-administered Kashmir, Haryana, Uttarkhand, Uttar Pradesh, Gujarat, Madhya Pradesh, Maharashtra, Punjab, Rajasthan, Delhi, Chandigarh, and Chhattisgarh. The state of Chhattisgarh does not permit the slaughter of buffalo, which do not have the same sacred status under the Hindu religion.
Eight states and four union territories in eastern and southern India have laws that prohibit the slaughter of cows. However, they permit the slaughter of bulls and bullocks on the issuance of a “fit-for-slaughter” certificate. These include Orissa; Telangana; Bihar; Jharkhand; Andhra Pradesh; Goa, Daman and Diu; Dadra and Nagar Haveli; Pondicherry; Tamil Nadu; Karnataka; and Andaman and Nicobar Islands.
Two states, Assam and West Bengal, both of which have large Muslim populations, permit the slaughter of all cattle on the issuance of “fit-for-slaughter” certificate. Eight states and one union territory, including Arunachal Pradesh, Kerala (which has a significant Christian population), Meghalaya, Mizoram, Manipur, Tripura, Sikkim, Nagaland, and the union territory of Lakshadweep have no state-level legislation or regulation banning or restricting the slaughter of cattle.
Criteria for granting slaughter permission vary between different states, but usually involve animals being over a certain age, or considered “permanently incapacitated” due to some injury, deformity or other cause, or considered uneconomical for purposes of work, breeding, draught, or milk.
Some states like Andhra Pradesh or Karnataka stipulate exemptions in their laws that under certain conditions the slaughter of a cow or other cattle is allowed if it is done for “experimental or research purposes, in the interest of public health, or if the animal is suffering from any disease that is contagious and harmful to other animals.” (Halsbury’s Laws of India, Vol. 2, pg. 157)
Penal provisions also vary from one state jurisdiction to another. Punishments range from up to six months to up to 10 years’ imprisonment along with varying levels of fines. Gujarat, for example, has set a punishment of up to seven years’ imprisonment and a 50,000 rupee (about US$761) fine, whereas Delhi has a maximum punishment of five years’ imprisonment and a 10,000 rupee fine (about US$152). Many of the states also ban the sale or possession of beef and the export or transport of cattle for slaughter. Some laws specifically prohibit export for slaughter, or export for any purpose, or export to another state where slaughter is not banned by law. Enforcement or implementation of these laws reportedly varies greatly as well.
4. How has the Supreme Court ruled on the bans or restrictions on cattle slaughter?
In a 1958 case, Mohd. Hanif Qureshi v. State of Bihar, the Supreme Court of India was called upon to decide whether the cattle slaughter laws of Bihar, Uttar Pradesh, and Madhya Pradesh infringed on the fundamental rights of the petitioners guaranteed under articles 14, 19(1)(g) and 25 of India’s Constitution. The petitioners were members of the Muslim Quraishi Community who were mainly engaged in the butchers trade.
The Court found that the latter part of the directive in Art. 48 enjoins the state to prohibit the slaughter of cows and calves and “…those animals which are presently or potentially capable of yielding milk or of doing work as draught cattle but does not…extend to cattle which at one time were milch or draught cattle but which have ceased to be such.” (Id. pp. 641-642.) The Court further held that directive principles should “conform to and run as subsidiary to the fundamental rights” in the Constitution. (Id. pp. 649)
The Court held that restrictions on the slaughter of cattle did not infringe on the petitioners’ freedom to practice their religion under article 25 since it had not been established that the sacrifice of cows on the religious holiday of Bakr-Eid is of an obligatory or essential part of the Islamic religion as opposed to being optional. (Id. pp. 650-652.) The Court did find that the relevant state laws had a direct and immediate effect on the freedom of the petitioners to practice their trade or profession, as protected under article 19(1)(g). However, clause 6 of article 19 permits laws to restrict this right if the measure is determined by the Court to be reasonable and in the interest of the general public. The Court found that the “country is in short supply of milch cattle, breeding bulls and working bullocks” and therefore a “total ban on the slaughter of these which are essential to the national economy for the supply of milk, agricultural working power and manure” is a reasonable restriction to impose in the interests of the general public. The Court also held that “a total ban on the slaughter of cows of all ages and calves of cows and calves of she-buffaloes, male and female” is reasonable and in “consonance with the directive principles laid down in Art. 48.” (Id. p. 690.)
However, the Court held that a total ban on the slaughter of “useless cattle,” which “involves a wasteful drain on the nation’s cattle feed which is itself in short supply and which would deprive the useful cattle of much needed nourishment, cannot be justified as being in the interests of the general public.” Therefore, the Court held that a total ban on the slaughter of bulls, bullocks and she-buffaloes after they had ceased to be useful was invalid under the Constitution. (Id. p. 631.)
The Court also noted that though the constitutional issue before the Court could not be decided on the mere grounds of the sentiment of the Hindu community, it nevertheless, “has to be taken into consideration, though only as one of many elements, in arriving at a judicial verdict as to the reasonableness of the restrictions.” (Id. p. 665.)
After Mohd. Hanif Qureshi, many states and localities attempted to circumvent the decision to allow the slaughter of some cattle through various changes in state-level laws, which led to a number of subsequent cases. In response to this decision, certain amendments were made to the cattle slaughter laws of Bihar, Uttar Pradesh, and Madhya Pradesh, which allowed the slaughter of bulls, bullocks and she-buffaloes on the issuance of a fit for slaughter certificate only if they were above the age of 20 or 25 and if they were “permanently unfit” or “useless.”
In 1960, in Abdul Hakim Quraishi And Others vs The State Of Bihar, the Supreme Court held that the high age requirements, the introduction of procedural hurdles, and additional appeal processes involved in issuing a certificate imposed unreasonable and disproportionate restrictions on the rights of the petitioners in the case.
Another case related to bylaws enacted in the municipality of Jabalpur required a license to be obtained for the slaughter of bulls and bullocks in specific premises. In 1967, a notification was issued cancelling the bylaws, which in effect imposed a complete ban on the slaughter of bulls and bullocks within the limits of the municipality. In a 1969 case, the Supreme Court decided that the notification rescinding the bylaws infringed article 19(1)(g) of the Constitution.
In 1986, in Haji Usmanbhai Hasanbhai Qureshi & Ors. vs. State of Gujarat, the Court upheld an amendment to the Bombay Animal Preservation Act which banned the slaughter of bulls and bullocks below the age of 16. The Court held that based on scientific developments since 1962, “the longevity of the cattle and their useful span of life has increased and, therefore, the prescribed age of sixteen years can be said to be a reasonable restriction on the right of the appellants to carry on their trade and profession as mentioned in Article 19(1)(g) of the Constitution.” (Id. p. 730.)
Another attempt was made by the state of Madhya Pradesh to circumvent the Mohd. Hanif Qureshi decision when it amended the cattle preservation law to impose a complete ban on bulls and bullocks. The state sought to justify its actions by “referring to the manifold benefits of cattle dung, which would be available to the agriculturists and farmers even from the useless animals.” (Infra. p. 7.) However, the Supreme Court in 1996, in Hashmattullah vs State Of Madhya Pradesh, found that “no conclusive material has been placed on record to show that the restriction now placed is to be regarded as reasonable” or that “there is any change in the circumstances or that the decisions of this Court in the aforesaid three cases require reconsideration.” (Id.)
In 2005, however, in State Of Gujarat vs Mirzapur Moti Kureshi Kassab, a seven-judge constitutional bench of the Supreme Court partially overturned the long line of its own precedents it had established since 1958 in Mohd. Hanif Qureshi. The Court upheld an amendment to the Bombay Animal Preservation Act, 1954, the effect of which was to impose a total ban on the slaughter of bulls and bullocks of any age (previously there was only a partial ban on the slaughter of bulls and bullocks that were under the age of 16 years).
The Court argued that environmental principles and duties in articles 48-A and 51-A(g) of the Constitution, which were introduced in 1976, were not available to the bench in Mohd. Hanif Qureshi. Furthermore, the Court held that the use of terms “Milch and draught cattle” in article 48 was employed to distinguish or classify the cattle and was not dependent on the cattle being able to perform a specific function. In other words, a cow does not lose its protection if it ceases to perform its particular function or reaches a certain age. The Court goes on to state that this argument is “further strengthened by Article 51A(g) of the Constitution” which introduces the fundamental duty that the “State and every citizen of India must have compassion for living creatures.” (Mirzapur Moti Kureshi Kassab, p. 23.)
The Court also challenged its previous holding that a total ban on the slaughter of bulls and bullocks was an unreasonable restriction and not in the public interest as per the test provided in article 19(6) of the Constitution. Here the Court made reference to changes in the factual situation in the country to justify the law. The Court held that:
1. Fodder shortage is no longer a problem and that cow’s progeny can be “fed and maintained without causing any wasteful drain on the feed requisite for active milch, breeding and draught cattle.” (Id. p. 47);
2. The limitation imposed on the right contained in article 19 should not be characterized as a total prohibition since only a part of the petitioner’s business is affected in that they are “not prohibited from slaughtering animals other than the cattle belonging to the cow progeny.” (Id. p. 48);
3. Food security was a greater concern in the past but this is no longer the case; and
4. Bulls and bullocks remain useful past a certain age, since urine and dung are tremendously useful for the production of manure and biogas, particularly as renewable sources of energy.
In a subsequent 2008 decision (Hinsa Virodhak Sangh vs Mirzapur Moti Kuresh Jamat & Ors), the Supreme Court also upheld a temporary nine day closure of municipal slaughter houses during the Paryushan festival celebrated by members of the Jain religion. The Court considered the religious sentiments of the Jain community and the public interest objective to preserve mutual respect and tolerance between India’s diverse communities. In doing so, the Court overturned its past position that sentiments of a particular section of the people cannot solely be used to justify imposing a prohibition. A short closure, which was not for a “considerable period of time,” is not an unreasonable restriction, and therefore, not a violation of the Constitution including article 19.
right to eat also comes under right to life.right?