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The beefed up ban in Maharashtra
Raghavi Viswanath and Surbhi Sharma comment on theMaharashtra legislature recently passed the new Maharashtra Animal Preservation (Amendment) Bill, 1995 which has enforced a blanket ban on the slaughter of cows, bulls and bullocks (which was previously allowed based on a fit-for-slaughter certificate). |
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Introduction
Recently the Maharashtra legislature passed the new Maharashtra Animal Preservation (Amendment) Bill, 1995 which has enforced a blanket ban on the slaughter of cows, bulls and bullocks (which was previously allowed based on a fit-for-slaughter certificate). Following suit, Haryana also passed a similar bill on 16 March 2015, which imposes a fine ranging from Rs 30,000 to Rs one lakh.Much opposed to the image presented to the rest of the world, India Inc. is not vegetarian anymore. Over the past decade, the vegetarian hypocrisy has been exposed as meat consumption has doubled in the last five years itself. Currently, 60% of the Indian populace consumes meat. Among the various kinds of meat, beef is the cheapest. While consumption of beef has been considered taboo for a long time, in lieu of the religious sentiments of staunch Hindus and Jains, a vast section of the rural population have relented to economic compulsions and taken to beef.
Beef-eating is most prevalent in the north-eastern states such as Arunachal Pradesh, Meghalaya, Mizoram and Nagaland where beef is sold openly in the cities. Manipur also accounts for a large section of beef-eaters with a large section of its Christian population. Kerala holds the distinction of being the only the South Indian state having no restrictions on cattle slaughter. The dietary habits of Dalit Hindus are reflected in the fact that beef is the most widely consumed meat in Uttar Pradesh. Furthermore, in Goa, beef forms an integral part of the culinary experience offered to tourists as well. The state requires 30 to 50 tons of beef every day to meet the needs of
1. Rukmini S, Meat of the matter, The Hindu, 11 July, 2014.
2. Cattle Slaughter in India, http://en.wikipedia.org/wiki/Cattle_slaughter_in_India (last accessed on 11th May, 2015.)
3. Supra, see note 3.
the 30% of its population that consumes beef as well as the tourists. With the beef consumers and abbatoirs venting their anger on the BJP government for the shortage of beef, the BJP government has decided to import slaughtered beef from the neighboring states of Karnataka and Maharashtra.
The blanket ban on slaughter of cattle in Maharashtra is the culmination of a thirty years long effort. However, it has sparked debate over the constitutionality of such laws once again. In light of the prevalence of consumption of beef across Indian states, the right to choice of food guaranteed under Article 21 of the Constitution and the State’s authority to regulate culinary choices has come under judicial scrutiny.
Constitutionality
In India, cow has been considered sacred, in fact worshipped by the Hindu community. The slaughter of cows is therefore, not an indigenous Indian practice. The slaughter of cattle is engraved in Indian national memory as associated with national oppression, at first by Muslim conquerors and later by the British. Cow slaughter, in fact, became prominent in India only during the medieval ages. The cow became a symbol of dispute after the successive invasions of foreign rulers beginning with Ahmad Shah Abdali who looted the Golden Temple and filled its pool with the blood of slaughtered cows, as an act of ultimate defiance. Subsequently, cow slaughter was made a capital offence during Ranjit Singh’s reign .The cow was increasingly accorded a religious status. The first war of Indian independence itself was a Sepoy Mutiny, in which soldiers, led by Mangal Pandey refused to open beef-coated cartridges with their mouth. Later, in 1870, the Namdhari Sikhs launched the Kuka Revolution against the British, protesting against the slaughter of cows by sacrificing their own lives.
4. Mayabhushan Nagvenkar, BJP acts to end beef shortage in Goa, 14 March, 2015, http://www.firstpost.com/india/bjp-acts-end-beef-shortage-goa-starts-importing-meat-maharashtra-karnataka-2153619.html (last accessed on 11th May, 2015.)
5. Ibid
6. Marvin Harris, India’s Sacred Cow, Human Nature,February 1978.
7. Supra see note 2.
8. http://m.newshunt.com/india/english-newspapers/news-bharati/newsbharatispecial3/the-genesis-of-cow-slaughter-in-india_36895111/999/c-in-l-english-n-newsbhar-ncat-newsbharatispecial3 (last accessed on 10th May, 2015)
This issue surfaced again in the Constitutional Assembly debates where demand for a constitutional provision banning slaughter of cows was raised. The supporters of this view vociferously argued that this prohibition was not purely motivated by religious reasons but also had cultural and economic significance. When the Bill for a constitutional provision for preservation of cattle was tabled by Seth Govind Das in 1950, he intended to incorporate it within the fundamental rights. However, his proposal was rejected. Subsequently, Pandit Thakur Das Bhargava and other members justified the protection to the cow, on the rationale of economic thought, though their reasoning was not sufficient enough to convince the Muslim members. Both Das and Bhargava tried to sidestep the apparent religious zealotry by taking aid of historical evidence such as Babur instructing Humayun to refrain from slaughter of cows in his secret testament, to corroborate their claims that the protection of cows was a duty impressed upon Muslims as well. However, they conveniently overlooked the political setup of the Mughal Empire at that time and the need to pacify the religious concerns of their populace. Z.H.Lari and Syed Saidulla were the first to express their dissent. Although they remained conciliatory in their comments, they argued that the overbearing Hindu religious motive could not be ignored. The economic justification was also watered down to merely a backdoor. Lari also added that mechanization of agriculture rather than a blanket ban on cattle slaughter would be the ideal way to economize the agricultural output.
Upon the advice of BR Ambedkar, a concession was made and Article 48 was included within the Directive Principles of state policy. Article 48 reads that States as well as the Union are expected to take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle. Further, Article 51A enumerating the fundamental duties enjoins upon the citizens of this country to cherish the ideals, which inspired our freedom struggle. One needs to understand that this inclusion was a compromise considering that the directive principles are non-justiciable. Therefore, this only encourages and gives complete discretion to States to enact appropriate legislation prohibiting slaughter leaving open
9. Constitutional Assembly Debate on 24th November, 1948 available at http://parliamentofindia.nic.in/ls/debates/vol7p12.htm (last accessed on 10th May, 2015).
10. Madhav Chandavarkar, The prophecies of reason, http://logos.nationalinterest.in/2015/03/the-prophecies-of-reason/ (last accessed on 10th May, 2015).
11. http://www.firstpost.com/india/hindutva-fallacy-sorry-rss-beef-ban-nothing-
religion-2161729.html (last accessed on 10th May, 2015).
Upon the advice of BR Ambedkar, a concession was made and Article 48 was included within the Directive Principles of state policy. Article 48 reads that States as well as the Union are expected to take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle. Further, Article 51A enumerating the fundamental duties enjoins upon the citizens of this country to cherish the ideals, which inspired our freedom struggle. One needs to understand that this inclusion was a compromise considering that the directive principles are non-justiciable. Therefore, this only encourages and gives complete discretion to States to enact appropriate legislation prohibiting slaughter leaving open the option of non-legislation, for instance, in Muslim-dominated areas. Accordingly, entry 15 of the State list under Schedule VII allows states to legislate on preservation, protection and improvement of stock and prevention of animal diseases; veterinary training and practice.
Religion and symbolism
In the Hindu religion, cow is referred to as ‘mother’ or the gaumata and is associated with the worship of Lord Krishna. The religious roots of this agitation cannot be ignored. This also tends to create a deep impression in the minds of the populace who immediately begin to make community-based associations.
It is a known fact that legitimacy to certain symbols has an impact on the social perception of those symbols. As Joseph Gusfield notes, “The fact of affirmation through acts of law and government expresses the public worth of one set of norms, of one sub-culture vis-à-vis those of others. It demonstrates which cultures have legitimacy and public domination, and which do not.” This can be understood in the context of the current beef ban which seems to keep the beliefs of the Hindu community over those of the Muslims.
It needs to be understood that the Hindu texts itself do not disallow Hindus from consuming beef. A survey of Vedas shows that amongst the nomadic pastoral Aryans who settled here, animal sacrifice was a dominant feature till the emergence of settled agriculture. Even later Brahminical texts provide evidence for eating beef. Yajnavalkya in fact encouraged people to eat the tender flesh of the cow and so did the Taittiriya Brahman. Unlike what is common belief, the Manusmriti also did not prohibit consumption of beef that used to be one of the choicest offerings to the Gods. This goes on the show that Hindu religion itself does not prohibit slaughter of cows let alone curtailing the rights of those practicing other religions to do the same.
The language of Article 48 affirms the legislative intent to attribute a sense of sanctity to the cow in keeping with the Hindu tradition. In fact, the Directive Principles give the States unfettered powers to legislate on slaughter of cows. Therefore the
12. D Barak Erez, Symbolic Constitutionalism: On sacred cows and abominable pigs, Law Culture and Humanities, 2010.
13. Beef Eating: Strangulating History, The Hindu, 14th August 2001, http://www.thehindu.com/thehindu/2001/08/14/stories/13140833.htm (last accessed on 10th May,2015)
underlying religious connotation of the ban cannot be undermined. This gives legitimacy to the BJP government to implement stringent laws against cow slaughter. After Maharashtra and Haryana, other BJP ruled states like Jharkhand and Rajasthan have expressed their intention of enacting similar legislations. The BJP has tried to enforce such a ban in the past, during its 13-day government in 1996 due to which it faced political isolation. Therefore, even though the BJP is now wary of introducing a Central legislation (which it can do employing the power conferred upon the Parliament to make laws on state subjects in cases of national interest ), it is implementing the same on a state-by-state basis.
Balancing right to trade with protection of cow
The fundamental right to trade as provided under Article 19(1)(g) of the Indian Constitution is not an absolute right. The concept of reasonable restriction has been recognized under Article 19(2) which states that the State cannot make any law which restricts the exercise of the right conferred in the “interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”. There have been many instances when the right to trade has been infringed in the interest of public order and morality. In M.C. Mehta v. Union of India, the Supreme Court ordered the closure of tanneries at Jajman near Kanpur, polluting the river Ganga. The interaction between freedom of trade, business, occupation and profession, and right to environment has been settled in favour of the latter in Abhilash Textile and Sushila Saw Mill cases. Upholding the order of prohibition of nuisance causing activities like discharging dirty water on public road, the Gujarat High Court in the former case observed, “No one has a right to carry on business so as to cause nuisance to the society....The petitioners cannot assert their
14. Article 249 of the Constitution of India, 1950
15. Article 19(1) of the Constitution of India, 1950.
16. (1987) 4 SCC 463.
17. Abhilash Textile v. Rajkot Municipal Corporation AIR 1988 Guj 57.
18. Sushila Saw Mill v. State of Orissa AIR 1995 SC 2484.
right, much less fundamental right, to carry on business without any regard to the fundamental duty.... Such restrictions placed on the fundamental right to carry on trade or business are in the interest of general public and constitutionally valid....".
Similarly in cases of prostitution, gambling etc., right to trade has been restricted in the interest of public policy. Censorship has been another method of restricting the right to freedom of speech and expression and trade in light of public interest. However, when it comes to complete ban on slaughter, this restriction tilts more towards being unreasonable. As has been stated before, Maharashtra already had a legislation which banned the slaughter of cows which were fit for agricultural use. This restriction was reasonable and necessary for the protection of the interests of farmers. But a complete ban not only is unfair to the butcher community but also puts a burden on the farmers who have to continue maintaining cattle which is no longer of use to them.
The immediate impact of this beef ban has been the loss of jobs at many abattoirs. The Deonar abattoir in Mumbai, where 450 bulls, bullocks and buffaloes were slaughtered daily on an average has had to remove 298 bullocks from its compound. Maharashtra’s beef trade is controlled largely by Muslims of the Qureshi community, who work as butchers, agents and dealers. Along with the Qureshis, many Dalit families in the area also work as caretakers of the cattle. The effect of the ban has impacted everyone working at Deonar with the mutton industry having its own butchers and dealers. The two-fold impact of this will be that firstly, prices of other meat, like mutton will increase and secondly, the competition for carabeef will increase leading to rise in price and decrease in its availability. However, the mutton traders aren’t happy about the increase in prices as the customers will not agree to pay a higher price.
Moreover, this ban would also adversely impact the indigenous industries such as the leather industry. Due to the presence of Deonar, Maharashtra plays a pivotal role in the supply of raw material to tanneries. India produces 10% of the world’s leather and its leather products are exported to 15-20 countries. Now the prices of the raw material will increase making it impossible for traders to buy them at such high rates
19. Supra see 16.
20. Anjali Lukose, At Asia’s largest abattoir, butchers fear livelihood loss as beef ban sets in, The Indian Express, 23rd March, 2015.
and further sell their product. The ban in Maharashtra will particularly affect the center of India’s leather industry in Kolhapur. This has major implications with regards to the BJP’s Make-in-India campaign which has prioritized the leather industry, with the locals complaining that their trade will be impaired because of the ban.
Therefore, whereas the right to trade and occupation of the butchers and traders is completely violated, the practice of this right by the leather industry has become hard. Referring to the case of Mohd. Hanif Qureshi v. Bihar, (which has been analyzed later) the Supreme Court has been of the view that a total ban on slaughter cannot be justified on grounds of public interest.
Judicial trend
With the inclusion of Article 48, several states enacted legislations prohibiting either the consumption of beef or the sale of cows or both. Madhya Pradesh enacted the Madhya Pradesh Agricultural Cattle Preservation Act of 1959 which prohibited the transport, sale, purchase and disposal of cattle and their progeny. Karnataka, Bihar and Gujarat followed suit. These laws increasingly faced judicial scrutiny. The Supreme Court laid down the precedent with respect to cattle slaughter in Mohd. Hanif Qureshi v. Bihar , 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 and Berar Animal Preservation Act,1949 as well the Uttar Pradesh Prevention of Cow Slaughter Act,1955, curtailed their enjoyment of the fundamental freedom of occupation as well as denied them of their religious customs of killing goats and sheep during Bakrid. A five-judge Bench held that the state is allowed to restrict fundamental freedoms in order to uphold the Directive Principles of State Policy. A restriction, however, must be reasonable. Insofar as this petition was based on the right to freedom of religion, however, it was rejected outright due to the lack of any evidence that cattle slaughtering was a religious duty in Islam. As for the infringement of freedom of occupation, the Court found that the legislation could
21. Rahul Sachitanand, How Maharashtra’s beef ban will hit leather products hub Kolhapur, Economic Times, 15th March, 2015
22. AIR 1961 SC 448.
be considered reasonable if it addressed cattle yielding milk or used for breeding or work. The considerations of the impact on the number of cows and the need to protect the interests of the general public in insuring adequate supply of cows, bulls, bullock and other milch cattle, were taken into account. The Court however maintained 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 on grounds of public interest.
In State of W.B. v. Ashutosh Lahiri, 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 de hors the statute. The Supreme Court upheld the decision of the High court.
Meanwhile, the Central Government also instituted the Datar Committee (Cattle Preservation and Development Committee 1947-48) and the Nanda Committee(1954) to inspect the status of cow slaughter and the anomalies of the cattle preservation legislation. The experts opined that while a total ban on cattle slaughter was unreasonable as well as undesirable in light of the dry fodder. The Datar Committee also recommended that the inconsistencies in State laws created administrative difficulties, and a uniform legislation could only be enacted if people were sufficiently convinced of the economic justifications for the same.
The precedent laid down in Hanif Qureshi was reversed in the case of Mirzapur Moti Kureshi Kassab in 2005 where the 7-judge Bench headed by Chief Justice Lahoti accepted the assertion of the Gujarat government that new developments in
23. (1995) 1 SCC 189
24. (2005) 8 SCC 534.
technology and veterinary care had extended the economic life of the cow and thereafter set aside the order of the Gujarat High Court. Averring to the Preamble and the Statement of Objects of the impugned Bombay Animal Preservation Act of 1954, the Apex Court held that the blanket ban on slaughter of bulls and bullocks of all ages in addition to the slaughter of cows and calves, was valid and consistent with Article 19(1)(g).
Subsequently, in the judgement delivered in the Hinsa Virodhak case of 2008, the SC held that shutting down of slaughter houses for a limited period of time during a Jain festival was reasonable, thus, retreating from the decision of the Mirzapur case and holding that an absolute ban was unconstitutional and unnecessary.
Economics
While the state governments have conspicuously emphasized on the agro-economic motivation behind the beef ban, the fact of the matter is that this move is not as economically intelligent as is being claimed. In response to the contentions raised against the beef ban through petitions filed before the Bombay High Court challenging Sections 5(d) and 9(a) of the Act, the State government responded by stating that “It is considered that the economy of Maharashtra was still predominantly agricultural and cow progeny is its backbone. Bulls and bullocks are useful not only as draught animal but also for agricultural purposes and breeding. They never cease to be useful as their dung is also a form of rich manure. Considering their usefulness, it was felt necessary to preserve and protect this cow progeny, including bulls and bullocks”.
The rationale offered by the State government is fundamentally flawed and rather inconsistent. Justifying the ban on grounds of the economic value of bulls and bullocks, the government failed into take into the account the fact that water buffaloes, that did not have this immunity, actually produce more milk than cows and are equally common as draught animals. It is well-established that cattle past their prime are a drain on the farmer’s resources. Therefore, as a result of the absolute ban
The rationale offered by the State government is fundamentally flawed and rather inconsistent. Justifying the ban on grounds of the economic value of bulls and bullocks, the government failed into take into the account the fact that water buffaloes, that did not have this immunity, actually produce more milk than cows and are equally common as draught animals. It is well-established that cattle past their prime are a drain on the farmer’s resources. Therefore, as a result of the absolute ban
25. Ibid.
26. (2008) 5 SCC 33.
27. Maharashtra Govt justifies beef ban, Daily Pioneer, 21st April , 2015, http://www.dailypioneer.com/nation/maha-govt-justifies-beef-ban-says-economy-agro-based.html (last accessed on 10th May,2015)
on cow-slaughter, the farmers are stuck with non-performing assets that cannot viably dispose of. This is in fact a tax that the farmers are indirectly paying on the revenue forgone.
Logically speaking, no farmer, whether Hindu or Muslim, would give up healthy cattle for slaughter. Most abbatoirs run by the State government employ doctors to ensure that the cows are unfit for agriculture before permitting slaughter. Therefore, the concerns of the government of young cows being slaughtered are baseless.
More importantly, India is currently one of the hosts to the maximum number of beef consumers. In fact, it ranked seventh on beef consumption in 2012. In 2014 alone, India produced 4.1 million metric tonne of beef of which 2.050 million metric tonne were consumed domestically. Not only Muslims, but a majority of Dalit Hindus and Christians consume beef in India. As a result of the absolute ban, people would have to shift to another meat such as goat meat which would now be costlier. However, considering that beef was popular with the lower income groups because it was affordable and a major source of protein, the government will now tax the people into paying a higher price for consumption of meat to fulfil their dietary needs. Furthermore, by criminalizing their dietary choices, these sections of the population become increasingly prone to violence and intimidation, as was observed in the aftermath of the cattle slaughter legislations in Karnataka and Gujarat.
As is the case with blanket bans, the communities whose interests have been adversely affected will now transport the cattle to states which do not have such legislations( statistics show that more than half of the beef from India is illegally exported to Bangladesh ), so as to subvert the existing legal sanctions. Conversely, after states like Gujarat criminalized the transport of cattle and possession of beef, they have begun to lose revenue from taxing the trucks carrying beef which crossed the State. With the beef market currently valued at Rs.10,000 crore , the potential for a black market for sale and purchase of cow meat is very high and will likely have harmful effects on the bovine trade as well.
28. Livestock and poultry: World markets and trade , United States Department of Agriculture, October 2014, http://www.fas.usda.gov/data/livestock-and-poultry-world-markets-and-trade (last accessed on 9th May,2015)
29. Rohit De, Who moved my beef?, The Hindu, 18th November, 2013.
30. Balbir Punj, Rationale for Cow Slaughter Ban, Indian Express, 4th April 2015.
31. http://www.hindustantimes.com/mumbai/maharashtra-justifies-beef-ban-says-
state-still-agri-dependent/article1-1339214.aspx (last accessed on 10th May, 2015)
Several meat lobbyists have argued that 30-40% of the farmers use a mixture of the urine produced by infirm cattle and neem as an effective pesticide, supporting the government’s claims of the usefulness of the dung and urine produced by infirm cows. However, a Standing Committee of the Parliament suggests that bio-pesticides only make up 16% of all the pesticide use. The government has cited the need for developing a market for carabeef trade (that is the meat of water-buffaloes) which is emerging in countries such as Malaysia, Vietnam and Philippines. In any case, India is not presently equipped with the required animal husbandry infrastructure to initiate trade of carabeef. The economy will therefore operate on a setback until such infrastructure is in place. The blanket ban imposed has not only unsettled but in fact reversed the regulatory consensus in place. In such a situation, the efforts of the people to circumvent the system and their consequences cannot be avoided.
Conclusion
From the above analysis it can be concluded that the agro-economic reasoning given by the Maharashtra government in lieu of the ban is flawed. Maharashtra already had a legislation which allowed slaughter of cattle that were no longer useful to the farmers. Similar laws are in force in various Indian states, for example, in Andhra Pradesh, where the slaughter of bulls and bullocks is allowed on obtaining "fit-for-slaughter" certificate, to be given only if the animal is not economical or is not likely to become economical for the purpose of breeding or draught/agricultural operations. There are clearly no economical or agricultural benefits of a blanket ban and moreover, it violates a community’s fundamental right to trade and occupation. Since the possession of beef has also been criminalized, the legislation blatantly curtails the right to choice of food of a huge population. Acquiring the color of a religiously motivated move, the only aim the beef ban seems to be achieving is satisfying the personal interests and beliefs of a few who happen to be in power.
32. Truth v Hype: Anti beef laws in Maharashtra, Haryana based more on hyperbole than facts , NDTV, 20th March, 2015, http://www.ndtv.com/india-news/truth-vs-hype-anti-beef-laws-in-maharashtra-haryana-based-more-on-hyperbole-than-facts-748141 (last accessed on 11th May 2015)
33. Vikram Doctor, Ban on cow slaughter in Maharashtra, Economic Times, 8th March 2015.
34. "Report of the National Commission on Cattle, Annex II (8)". Government of India, Ministry of Agriculture. Similarly in Bihar all cattle on obtaining a "fit-for-slaughter" certificate are allowed to be slaughtered, certificate to be given if cattle is over 14 years of age or has become permanently incapacitated for work or breeding due to injury, deformity or any incurable disease.
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| RAGHAVI VISWANATH and SURBHI SHARMA are students pursuing B.A.LLB (Hons.) from National Law Institute University, Bhopal. They may be reached at raghavi1125@yahoo.com. |
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