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The Practice Of Cow-Slaughter In India: A Socio-Legal Perspective

Since prehistoric days, the value of the cow has indeed been widely respected in Indian culture. Cow is associated with God and also as a "mother" who supports the country in terms of food and prosperity in various Rig Vedic scriptures. [1] Even then, according to an ancient analysis, cow slaughter was required for some rituals, and Hindu priests sometimes ate beef. The ritual of cow slaughter began when Muslim intruders settled in India, and after attempts to outlaw it over time, it was re-enforced by Britishers who were known to be regular beef eaters. Muslims, as one of the most oppressed and indigenous people, engaged in the ritual of cow slaughter for just a livelihood as well as a religious right after independence.

Since the beginning of the Constitution, the tradition of cow slaughter in India has been an extremely sensitive, contentious, and explosive topic that has outraged as a matter of "icy debate" in the courts. The debate's underlying premise is linked to Hindu faith and beliefs about cows, which runs counter to the interests of people who kill cows as a part of their right to preach and worship. [2]

Though there is no formal statutory protection for cows from it being sacrificed, there are a number of state laws in India that forbid or limit the practice of cow slaughter. The economic importance of cow slaughter is the basis for legalization and proscription of cow slaughter, as well as differing views of what should and cannot be slaughtered. With the growing controversy and disputes about the practice of cow slaughter, such prohibitions and restrictions appear to be very permissive and incompetently applied. [3]

Article 48 of the Indian Constitution[4] contains the regulatory precedent for the prohibiting of cow slaughter, which relies primarily on new and scientific approaches to coordinate agricultural and livestock farming as a framework for such restriction. Butchers, on the other hand, have contested the law, claiming that it infringes on their human right to practice any profession, as provided in Article 19 (1) (g) of the Constitution.

As a whole, the researcher attempts to encapsulate a raging issue concerning the practice of cow slaughter in India in this article, as well as include constitutional and legal debate on the ban and embargo on cow slaughter. Even then, the purpose of this paper is to address the issue of the prohibition on cow slaughter infringing on the constitutional right to practice any profession.

Ban On Cow Slaughter- A Constitutional Debate

The question of prohibiting cow slaughter was indeed a hotly debated topic in the Constituent Assembly when it came to Article 38-A, [5] which had been later changed to Article 48 in the current Constitution. A certain religious leader proposed that the clause against cow slaughter should be included in the Fundamental Rights because it would grant a cow legal protection.

Nevertheless, other representative of the Parliament insisted that the clause against cow slaughter have been included in the Directive Principles because the Fundamental Rights only cover human rights, and it would be extremely complicated for the committee members to provide animal welfare in the same manner as human rights. [6]

The core justification for the abolition of cow slaughter, according to Pandit Bhargava, was also the nation's financial advantage, not religious disagreements. His point emphasizes the value of cow health, as cow compost and milk will be used to boost farm production and food security. [7] Cow welfare, on the other hand, was promoted not only for economic reasons, but also to maintain Hindu religious feelings.

A few Hindus from the upper castes imagined the sacred significance of the cow in Hinduism, stressing the concept of the cow as a mother and a sacred being. Some people have equated "gau hatya" with "brahma hatya," referring to the cow as the nation's mother. [8] With those representatives claiming that the tradition of cow slaughter is not inherent to Muslims, Govind Das called-on Muslims to join together and honestly state that their religion does not include the practice of cow slaughter. [9]

Representatives of the marginalized Muslim religion, on the other hand, opposed the constitutional provision for cow security, claiming that it favoured the religious sensibilities of the Legislature's majority members. Instead of making it vague for the government to recognize it under Directive Principles, [10] Muslim minorities had the amendment inserted into the Fundamental Rights. As a result, if the ban on cow slaughter is now to be extended, they have asked Hindu representatives to express their views in clear terms.

The reason for this is that the constitutional clause on cow safety, which deals with science and modern methods of agriculture and animal husbandry, clashes with the part of the article prohibiting cow slaughter. [11] Furthermore, Muslim representatives found out is that cow slaughtering was not limited to Muslims; Hindus slaughtered cows as well in ancient India, and Muslims involved in agriculture saw cows as valuable commodities, much as Hindus did. Despite the fact that Muslims have been labelled beef eaters since antiquity, they did end up consuming cow flesh due to their poor economic conditions and the higher cost of other meat.

Amid Muslim representatives' conceptual claims that cow slaughter should be prohibited, Article 48 of the Indian Constitution was enacted only with intention of banning cow slaughter in the context of modern agriculture and animal husbandry. Although this article partly bans cow slaughter in view of its utility, it explicitly applies dominance to the court in order to perpetuate Hindu beliefs again from rear entrance. [12]

Legal Discourse On The Ban Of Cow Killing

Article 48 of the Constitution provides that the legal grounds for prohibiting cow slaughter are referred to as:
The state shall endeavor to organize 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. [13]

Article 48 is not applied in the Court as such under the heading of the Directive Principles but is necessary to the government at the moment of the formulation of laws and policies. The Directive Principles must be aligned with fundamental rights and must function as a subsidiary body in a way which does not restrict the fundamental rights enshrined in Part III of the Constitution by the legislation regulated by this Directive. [14]

It was ruled in the case of Hanif Qureshi v. State of Bihar[15] by the Supreme Court, that a complete ban on cow slaughter, keeping aside the age and usefulness is legitimate and justifiable and in compliance with Article 48 of the Constitution. The court did add, however, that protecting cows that are no longer useful or profitable is unfair and violates the butcher's right to exercise any career enshrined in Article 19 (1) (g).

Article 48 of the Constitution requires states to protect cows and calves that are likely to produce milk and engage in various activities from slaughter, but it does not extend to cattle that were milch and draught at one time but are no longer so. [16] Here Absolute prohibition of the practice of slaughtering useless cows would deprive valuable cattle of food and nutrition, as well as influence the nation's economy, which could not be said to be in the public's best interests.

The term "interests of the general public" is very vague and covers a wide range of interests, including sovereignty, dignity, public order, and morality. [17] It is argued that legislation or statutes enacted by the state government restricting citizens' constitutional right to engage in any trade or enterprise must first pass the public interest test. It means that any restrictions on professional freedom must be detrimental to the general public's welfare. If a ban is enforced when exercising a constitutional right, the state bears the burden of proof to show that the prohibition is in the public's best interests. [18] Otherwise, such a ban would be deemed an arbitrary infringement on a constitutionally protected fundamental right. [19]

The complete ban on cow slaughter, which has harmed the national interest by impacting one segment of society's occupation and causing extreme chaos by depriving a weaker section of the population of their basic right to food and nutrition, has harmed the national interest. It is also not in the interest of the public to send useless cows to Gosadans, as it tortures animals and allows them to slow death which is not at all beneficial to them. In fact, this is not in the interests of the public. As a result, outlawing cow slaughter completely defeats the purpose of Article 48 and robs butchers of their constitutional right to practice their trade. [20]

Nevertheless, the slaughter of the cows and the calves may, however, affect the religious sentiments of many Indian people but, where such a prohibition is not imposed for the public interest but is only enacted for the sake of preserving, respecting and holding the convictions, the fundamental freedom of trade and trade is seen unreasonable. [21] In Kesavanand Bharati v. State of Kerala, the court ruled that the national interest takes precedence over the interests of a specific group of people. [22]

The case of Gujarat v. Mirzapur Moti Kureshi[23] overturned the ancient ruling because cows and calves are not considered to be useless once they stop producing milk or breed. The Court observed that in Article 48 the word "milk and drawn livestock" was only used to distinguish between useful and other livestock. Milk and drawn bovine animals go through the life cycle and often get dry and lose utility due to different reasons over the course of time. But that does not mean that they can be slaughtered beyond the horizon of Article 48. In other words, if the cow does not perform its particular functions, it is not deprived of security under Article 48.

It has been observed that agriculture and animal husbandry play a large role in Indian society's economy. It's necessary that cattle and their descendants are preserved and protected and may be used for agriculture, as they sustain the nation's welfare. The cow still generates manure that can generate alternative power sources and boost soil quality and the environment even when it ceases to produce Milk or loses its usefulness.

Nevertheless, a complete ban would protect the national economy in respect of cow slaughter and would not forbid the exercise of their fundamental freedom of occupation by the butchers. However, they are prohibited from killing just one class of cattle; other livestock including sheep, caprins, etc. are allowed to be slaughtered and are still in operation. There is also nothing like "absolute prohibition," but it can be clearly called "restriction," if the prohibition is only in correspondence with a specific practise. [24] Just because it triggers the butcher drawbacks does not mean that this limitation is contrary to the general public's interest.

It is well established that laws prohibiting the practice of cow slaughter, which falls under the head of State list, cannot be issued by a court of law because it is a matter that must be addressed by the government prior to any legislation. Absolute bans on cow slaughter can only be justified if they are enacted by a competent legislature. [25]

Critical Analysis On Complete Ban

For years, the Supreme Court's decision in Hanif Qureshi v. State of Bihar, [26] declaring cow slaughter to be illegal and invalid, was followed by the 2005 decision in State of Gujarat v. Mirzapur Moti Kureshi, [27] which marked a significant change. The Supreme Court ruled in the case that the complete prohibition on cow slaughter is acceptable and fair because it does not restrict butchers' constitutional right to practice their trade.

The underlying cause for this dramatic turn in the 2005 decision is due to a constitutional amendment. In order to transform agriculture and animal husbandry, there has only been one amendment in 1958, namely Article 48, which dealt with the banning of cow slaughter. It just protects the economically valuable cows and calves, and it ignores the cattle until they stop producing milk and lose their efficiency.

Even so, as time passed, additional provisions were introduced, and the 2005 decision was based heavily on Articles 48 A and 51 A (g), as well as Article 48 of the Constitution, which essentially cover the prohibition of brutality to living organisms and the safety of all types of livestock, regardless of their age or perceived utility.

The author in this part of the paper supports the Supreme Court's judgement in Mirzapur Moti Kureshi and gives arguments in support of the judgment. It was decided that a complete prohibition on cow slaughter is fair and does not infringe on butchers' constitutional right under Article 19 (1) (g) of the Constitution. Article 19 (1) (g) guarantees all residents of the state the right to engage in any occupation or industry. [28]

However, under Article 19, clause 6, the right thus awarded would be fairly limited in the public good. It's indeed left to court's discretion to understand rightness and ascertain that the restraint imposed is fair in the welfare of its citizens. [29]

The absolute ban on practice cow slaughter is valid since the ban is "complete" in terms of slaughtering types of cattle rather than all cattle. It does not prevent butchers from practicing their fundamental right to work; they are also free to slaughter all other cattle species except cows. Butchers do not have to make a living by slaughtering cows; they may also slaughter other livestock to support their occupation or enterprise.

Furthermore, butchers engaged in the exchange of hides, horns, and other items extract all of these items without slaughtering cows since livestock that are exempt from slaughter die naturally, and in this case, allied items are obtained from the dead animal body for economic development. As a result, a complete prohibition on cow slaughter has little impact on butchers' ability to practice their trade.

Furthermore, if practicing one's constitutional right of occupation in relation to a certain kind of livestock is prohibited, it is not a "absolute ban," but only a limitation. In the case of State of Maharashtra v. Himmatbhai Narbheram Rao, [30] the court upheld the constitutionality of a ban on dealing in hides and skins. Any damage that a person suffers becomes negligible if such a ban suits the interests of the public at large. That's because the general public's welfare trumps private interests.

In a country such As India, where the whole economy is based on agriculture and animal husbandry, a complete ban on cow slaughter is critical. As a result, regardless of their producing capability or utility, cows and calves must be preserved and protected from slaughter. They provide compost even after the stop producing milk or serving, which are used to boost soil production and quality potential. [31]

Furthermore, the manure generated can also be used to generate general renewable energy sources such as biogas and the like, which helps to keep the country's economy afloat. This indicates that a complete ban on cow slaughter is fair and in the favor of national economic as well as general populace benefit. Article 21 of the Indian Constitution guarantees the safety of human beings and other species. The term "life" is understood in a wider sense to include animal life, which again is necessary for human survival. [32]

The absolute ban on the practice of cow slaughter, on the other hand, would not impinge on the human right to food of one's choosing since a report reveals that only 1.33 percent of India's population consumes beef. The absolute ban only prohibits the killing of the cow and her offspring, as well as their consumption; it does not forbid the intake of any other meat. If protein deficiency is a problem, they may eat meat from many other animals such as goats or chickens, or cereals and beans, that grow in greater quantities in India because of soil fertility using cow dung.

The matter pertaining to cow slaughter is hotly debated contentious topic in India. It has impacted not only the fundamental freedom of profession of a specific group of people, but it has also resulted in violence and dispute between people of different faiths over the safety of cows. It led to the formation of circumstances that are led by anxiety and terror, particularly Muslims who indulge and earn a living by practicing cow slaughter and its trade.

Even in the modern era, where citizens can express their opinions openly, the debate about the prohibition of cow killings is one of the issues people are resisting due to the turmoil and hostile environment. Indeed, some classes of people will be infuriated with the judgement of the judiciary on the enactment of laws to protect the slaughter of cow and regards it a s a hindrance to their Fundamental Rights. But it's not possible to please the demands of every individual in a country like India, where there are millions of people. Every legislation is done with a certain intent and aim and must be taken in such a way that it is in the broad interest of the people unless it violates the constitutional mandate.

The question of the prohibition of cow slaughter must be seen as one of India's burning problems. The Government of India must focus on sanctioning a Central law rather focusing on providing state-wise laws. This way they will be able to take into note the interest of all the classes of people. The laws must be structured in such a way that they are deprived of excess fines and incarceration for the people involved in illegal cow slaughter.

The State could also totally prohibit the slaughter of cattle and calves and the use of beef in the country, stressing its financial value to the country. However, a wider range of people will refuse this approach as, on the one hand, they forbid the exercise of freedom of profession by a specific class of people, but on the other hand, other people may argue that a complete ban on cow slaughter leads to economic suicide. The best approach would therefore be to encourage the Government to implement central laws which take account of the public interest.

  1. Sambaiah Gundimeda and VS Ashwin, Cow Protection in India: From Secularizing to Legitimating Debates, South Asia Research Vol. 38 (2018)
  2. Anhad Singh, A Socio- Legal Perspective of Cow Slaughter in India, International Journal of Law and Legal Jurisprudence Studies Vol.1, 2
  3. Shraddha Chigateri, Negotiating the Sacred Cow: Cow Slaughter and the Regulation of Difference in India, Institute of Social Trust (2011), 140
  4. Article 48, The Constitution of India
  5. Ibid 3, 142
  6. Constituent Assembly Debate, Vol. VII (1999), 569
  7. Manuraj Shunmugasundaram, Banning Cow Slaughter by Stealth, The Hindu Centre for Politics and Public Policy (2017), 13
  8. Lovish Garg, Examining the Constituent Assembly Devates on Cow Protection, The Wire (2016)
  9. Ibid 1, 162
  10. Ibid 3, 144
  11. Ibid 6, 571
  12. Dhananjay Mahapatra, �Cow Slaughter and Fundamental Rights: Debate on since 1948�, The Economic Time (2017)
  13. Article 48, The Constitution of India
  14. State of Madras v. Champakam Dorairajan, AIR 1951 SC 226
  15. AIR 1958 SC 731
  16. Ibid, 12
  17. Maneka Gandhi v. UOI 1978 AIR 597
  18. Article 19 Clause 6, The Constitution of India
  19. Mohd. Faruk v. State of MP (1969) 1 SCC 853
  20. Hashmattullah v. State of MP (1996) 4 SCC 391
  21. Ibid, 853
  22. (1976) 2 SCC 310
  23. (2005) 8 SCC 534
  24. Krishna Kumar v. UOI (2005) 8 SCC 612
  25. Bal Ram Bali v. UOI (2007) 6 SCC 805
  26. Ibid 15
  27. Ibid 22
  28. Article 19 (1) (g), The Constitution of India
  29. State of Madras v. VG Row (1952) SCR 597
  30. AIR 1970 SC 1157
  31. Faizan Mustafa, Vivek Mukherjee, Holy Cow, privacy and Unholy Laws, Economic and Political Weekly Vol. LII (2017)
  32. Animal Welfare Board of India v. A. Nagaraja and Ors. (2014) 7 SCC 547

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