Friday, March 02, 2012

Guest Post by Shraddha Chigateri on "Now you see it, now you don’t...’ Hindu sentiment and the legal discourse on cow slaughter"

Anup Surendranath’s recent post on the Madhya Pradesh anti-cow slaughter law is an interesting and timely intervention on the nature of the broader legal discourse on cow slaughter. It provides us with tiny glimmers of light (of legally protecting the diversity of food consumption practices in India) in the overarching darkness of the recent legal and judicial developments on the regulation of cow slaughter. Surendranath argues that the bans on the possession of beef per se, as opposed to the bans on the possession of beef obtained through slaughter in a state that prohibits such slaughter, have no constitutional basis, even within the logic of the jurisprudence on cow slaughter. The argument that he makes is that the constitutional discourse upholding state bans on cow slaughter and ancillary activities, including possession and sale of beef, is based on the ‘agricultural interests’ of the state, and these are not contravened when beef is imported from another state.

Several interesting issues are raised by Surendranath’s post, which are about the broader legal discourse on cow slaughter- what is the purpose of the laws on cow slaughter? Are the cow slaughter bans constitutional? On what basis do we assess the constitutionality of the bans? Surendranath’s argument is that the ‘agricultural interests’ of states provides the underlying rationale for the bans. This is also what demarcates, for him, constitutional bans from unconstitutional bans. While he recognises that non-secular aims are achieved through secular means, his argument is that the constitutionality of the laws banning cow slaughter is dependent on the notion of ‘agricultural interests’. Surendranath’s arguments on ‘agricultural interests’ are not unjustified. The Supreme Court pronouncements on cow slaughter have repeatedly invoked Art 48 of the Constitution of India which speaks of the scientific organisation of agriculture and animal husbandry to justify the bans on cow slaughter. I would argue however, that each reiteration of the scientific rationality of the bans, whether in be in terms of ‘agricultural interests’ or in terms of the organisation of animal husbandry obfuscates more than it reveals.

Article 48, as I have argued elsewhere, was written into the Constitution to protect ‘Hindu sentiments’, but in the language of the scientific organisation of agriculture and animal husbandry. The Article in effect speaks through both sides of its mouth, so to speak. It masquerades as one thing while doing something quite different. The Article and the jurisprudence that has flown from it, create a chimera where Hindu sentiments on cow slaughter come into view at certain moments and then they disappear. Surendranath locates a disjunction between ‘agricultural interests’ and religious sentiments in the concomitant disjunctions between the legal and political discourses on cow slaughter. I would argue instead that there is a sleight of hand wherein ‘agricultural interests’ serves as an emperor’s clothes’ style legal fiction both within the parameters of legal discourse as well as in wider politico-legal discourse. This legal fiction creates a myth that Art 48, the laws based on it and the attendant jurisprudence on cow slaughter are not about religion at all, but about the scientific organisation of agriculture and animal husbandry. In wider politico-legal discourse, the legal fiction of ‘agricultural interests’ serves to constitutionally legitimise the Hindu right’s more brutal interventions in the regulation of cow slaughter, whilst reassuring their political base of their Hindu credentials.

There are consequences to this legal fiction, the most egregious of which is that the jurisprudence on cow slaughter falls far short of the constitutional ideals of secularism. The courts, since the decision of Mohd Hanif Quareshi and others v State of Bihar, have subjected both the Muslim professions associated with cow slaughter, as well as the Muslim practice of sacrificing cows on Bakr Id to critical scrutiny, but they have not turned their critical gaze to an evaluation of the Hindu belief in the sacredness of the cow. They have instead accommodated this belief either implicitly or explicitly. Moreover, the fiction of the scientific rationale of Art 48 has allowed the courts to employ the ‘usefulness of cattle’ as a framework for regulating the slaughter of cattle. But this has not been done with any serious engagement with, or recognition of, the diversity of perspectives on the ethical, ecological, cultural and economic relationship with cattle when arriving at their preferred science. This meant that for the longest time, the cow was declared as useful for all its life, and that bulls and bullocks could be slaughtered past their usefulness. This is despite the Supreme Court itself recognising in Hanif Quareshi that the cow’s more humble cousin, the buffalo, was by far the more productive. In 2005 in the State of Gujarat vs Mirzapur Moti Kureshi Kassab Jamat and Ors, the Supreme Court went much further and upheld the constitutionality of a total ban on the slaughters of cows and her progeny. Some might argue (as the court does in its reasoning), that this judgement merely extended a 40 year old jurisprudence on the usefulness of cattle. In fact the consequence of the judgement was to overturn 40 years of compromise (in effect, if not in reasoning) between divergent conceptions of the ecological and economic relationship with cattle.

What is interesting about Surendranath’s post is that it gets us thinking about how best we may proceed in the legal story on the regulation of cow slaughter. Are we to look for glimmers of light within the jurisprudence of Art 48? It might seem that all is not lost when the Supreme Court proclaims in Akhil Bharat Goseva Sangh v State of AP and Ors that the decision in Mirzapur did not mean that the slaughter of cattle by itself is unconstitutional. However, the narrowing of spaces for dissent and diversity within the logic of Mirzapur as well as the many more strident enactments since Mirzapur provides a cautionary tale. If we are to take seriously the idea that there are diverse perspectives on the economic, cultural, ethical relationship with cattle- including dalit, Muslim and dominant caste Hindu- all of which have to be taken into account and balanced in the regulation of cow slaughter, we might well start with unmasking the anti-secular legal fiction inherent in the jurisprudence on cow slaughter. The question is not whether the laws on cow slaughter are constitutional because they conform to the varying interpretations of Art 48, but whether they are unconstitutional because they repudiate the fundamental principle of secularism underpinning the Constitution itself.

2 comments:

Anup said...

Shraddha,

Thank you for an extremely engaging post.

Before I put forth my substantive comments, I hope I can take the liberty to clarify the scope of my post. My limited aim was to consider whether bans on possession would be justified even if we accept the framework of justifications put forth by States and accepted in judgments of the Supreme Court. I did not mean to imply any commitment towards or agreement with ‘agricultural interests’ as justification for anti-cow slaughter laws.

I was trying to argue that despite this rationale being accepted, no state can impose a blanket ban on the consumption of beef. I do recognise that such an approach does nothing for the Art.19 rights of those engaged in professions connected to cow slaughter or the rights of Muslims under Art.25. But I wanted to focus on the possible constitutional challenges to regulating dietary preferences within the already established legal discourse.

As far as the critique of 'agricultural interests' as the basis for anti-cow slaughter legislations is concerned, I am in complete agreement. But I was struck by your suggestion that courts should perhaps critically evaluate the position of the cow as a sacred Hindu symbol. I think it might be very difficult for a court to reach a position where it can make such an evaluation. Faced with legislations that do not textually invoke religion as a justification in any manner, as a matter of constitutional adjudication, wouldn’t it be very difficult for a court to go behind the stated objectives of the legislation and look for the ‘actual’ objectives? When petitioners have challenged anti-cow slaughter laws on grounds of freedom of religion, it has enabled the court to go into questions of religion (and arguably come up with incorrect answers). However, this approach of examining religious claims might not be available to the court while examining the justifications put forth by the states.

I do believe that a much better way to challenge the anti-cow slaughter laws (and you make this point as well) is for the courts to engage in a heightened scrutiny of the claims of the state based on ‘agricultural interests’ rather than display undue deference to the legislature on this issue. However, in terms of judicial review of such legislations, it might be difficult to translate this (in the courts) into a critical evaluation of the protection of cow as a sacred Hindu symbol.

-- Anup

Rohit De said...

Shradha and Anup, thank you for your timely interventions. I think we need to call out the Mirzapur decision for what it is, judicial fiction. The Mirzapur decision overruled not one, but 6 Supreme Court decisions which upheld the principle that an absolute ban is unconstitutional.



While the motivating factor behind Art.48 might have been Hindu sentiments, the wording of Art.48 forced the states in Hanif Qureshi to make their arguments on economic grounds. As the court after perusing the government's own statistics arrived at the conclusion that aging cows hurt the nation's economy. The "cow dung and urine defence" was attempted in Hanif Qureshi and rejected. It's resurrection by Justice Lahoti is frankly a mystery (as Justice Mathur's dissent points out(http://indiankanoon.org/doc/55842/)