Monday, February 20, 2012

Guest Post by Anup Surendranath: Anti-Cow Slaughter Legislations: The Curious Case of the Prohibition on Possessing Beef

The recent Presidential assent for the 2010 Madhya Pradesh Govansh Vadh Pratishedh (Sanshodhan) Adhiniyam (notified on 31 December 2011 in the M.P Extraordinary Gazette No. 594 and hereinafter referred to as the ‘2010 M.P law’) has invited a lot of attention and the provisions in the Act on the burden of proof, powers of arrest and quantum of punishment particularly so.  The Frontline, in its latest edition, carries an article on the above issues and refers to Madhya Pradesh’s (M.P) legislation being unique in its ban on the consumption of beef. In this post I engage with the ban on possession and consumption of beef and will argue that M.P’s model of banning possession and consumption is likely to pass constitutional muster whereas wider bans in Gujarat’s anti-cow slaughter law and Karnataka’s draft bill might well be unconstitutional.  

 s.5 of the 2010 M.P law provides that “No person shall have in his possession or shall transport beef of any cow progeny slaughtered in contravention of the provisions of this Act.” I do not think the claim that M.P’s ban is unique is entirely accurate. s.8 of the Delhi Agricultural Cattle Preservation Act, 1994 also contains a similar prohibition on possession on flesh of cattle slaughtered in contravention of that Act.  The model of prohibition invoked in the laws legislated by M.P and Delhi is limited to possession of meat that is procured as a result of a slaughter that is in contravention of the Act as opposed to a much wider and general prohibition on beef per se. This narrower model is likely to pass constitutional muster because it is in tune with the justificatory framework for anti-cow slaughter laws accepted by the Supreme Court. States have claimed and been allowed the legislative power to prohibit cow slaughter on grounds of protecting agricultural interests in the State under List II and therefore a ban on possessing beef procured in contravention of such a legislation would seem justified.

However, what would clearly be unconstitutional is a much wider ban on the possession of beef per se as provided for in s. 6B of the Gujarat Animal Preservation (Amendment) Act, 2011 and also in Karnataka’s 2010 anti-cow slaughter bill awaiting Presidential assent. Given that main argument for anti-cow slaughter legislations has been to safeguard the right of individual States to further their agricultural interests as they deem fit, there is no reason why the people in Gujarat or Karnataka cannot possess and consume beef imported from States where cow slaughter is permitted. Since such an import of beef does not interfere with Gujarat’s right to promote agriculture by preventing the slaughter of cow within its boundaries, there is no nexus between the scope of the ban and the purpose of the legislation.

Starting with Mohammad Hanif Quareshi v. State of Bihar (1958), the Supreme Court had maintained the position that a complete ban on cows was constitutional but a complete ban on the slaughter of bulls and bullocks, irrespective of their age and utility as breeding or draught cattle was unconstitutional. The Court partially reversed this position when a 7-judge bench upheld a complete ban on the slaughter of bulls and bullocks in State of Gujarat v. Mirzapur Moti Kureshi Kasab Jamat (2005). Despite this change in position, the agricultural interests of the State concerned remained the underlying rationale for such a ban. In all anti-cow slaughter legislation cases, there is a clear acknowledgment that States have the freedom to decide the treatment of cattle taking into account factors like availability of fodder, fodder potential of the terrain, and contribution to agriculture of such cattle. Given the geographical diversity in India, it would be absurd to imagine that all States would come to the same conclusion on evaluation of such factors and therefore the BJP’s suggestion of a national law against cow slaughter hardly makes any sense. Consuming beef procured from a State where cow slaughter is permitted cannot be seen as interfering with another State’s legitimate aim of protecting cattle for agricultural purposes.

In legal terms, no State has attempted to protect cattle as important religious symbols and the absence of such a discourse indicates the complex and problematic nature of that argument in constitutional law. The legal and political discourse on cow slaughter legislations are carried out on very different terms and using vocabularies that have very little intersection. These increasing attempts to achieve non-secular aims through secular means in the context of cow slaughter comes to a head when States attempt to prohibit possession and consumption of beef per se. It does not fit the existing constitutional discourse on the issue and a ban on cow slaughter invoking religious grounds, rather than agricultural interests, might provide a better basis to attempt a wider ban. I do not think such a ban would succeed even then but it is certainly better than relying on a stretched notion of agricultural interests. Restrictions on the sale of meat on the basis of religious sentiments alone have found favour with the Supreme Court in cases like Om Prakash v. State of U.P (2004) (upholding the ban on the sale of eggs in Rishikesh in addition to the already existing ban on the sale of meat and fish) and Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat (2008) (ban on sale of meat in Ahmedabad for nine days during a Jain festival found to be constitutional).  Protection of cattle as a matter of faith is the dominant theme in the political discourse on cow slaughter and its complete absence (at least formally) in the legal discourse has led to absurd results.
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