The ban on meat consumption is unreasonable and legally untenable

The holy cow and the judiciary
There’s been a 17 per cent hike in beef export after the NDA took over last year.

INDIA must get ready for an era of bans: from beef to porn to censoring of television channels, we have seen too many bans recently. The icing on the cake was the Attorney-General’s assertion in the Supreme Court that the right to privacy is not a fundamental right. The latest ban is on meat consumption of all types for a few days in Mumbai and Gujarat. Even the Shiv Sena and the MNS are opposing this ban during Paryushan Parva. Are we going to become a theocracy like Saudi Arabia, which does not permit non-Muslims to eat or drink in Ramadan? Are we going to follow China, which, in 2015, prohibited Muslim civil servants, teachers and students from fasting in Ramadan in the province of Xinjiag?

The Centre recently took the position that neither a central law on cow protection is on the anvil nor is there a proposal to declare cow as a national animal, though it has allocated Rs 500 crore for cow conservation. During the Lok Sabha polls, the so-called ‘pink revolution’ was brought up several times. The BJP manifesto for the last Haryana elections promised to bring in an Act to ban cow slaughter in the state. “The slaughter of cow would be considered equal to the murder of a person,” were the remarks of Ganeshi Lal, chairman of the manifesto committee.

The BJP government in Rajasthan has taken cow protection a step further with India’s first “Ministry of Cow” and Department of Gaupalan, besides the Gauseva Commission. In the 1970s, a cow and calf was the poll symbol of the Congress, which reaped electoral dividends.A few years ago, the Punjab and Haryana High Court had observed that the penalty for cow slaughter must be enhanced, as it is a serious offence. Expressing concern over the offence entailing imprisonment of just five years, the judge said it should be treated on a par with murder, with 14-year rigorous imprisonment.

The latest Haryana law provides 10-year RI for the crime. The Indian foreign trade policy prohibits the export of cow meat, but India continues to be the world’s largest exporter of beef, as per the data released recently by the department of agriculture of the US. It has taken lead over the next highest exporter, Brazil. We must, however, note that the US classifies even buffalo meat as beef.

We exported 2.4 million tonnes of beef and veal in 2015, compared to 2 million tonnes by Brazil and 1.5 million by Australia. These countries account for 58.7 per cent of all global beef exports. India alone accounts for 23.5 per cent. This is up from 20.8 per cent last year. There has been a 17 per cent hike in beef export after the NDA government took over last year. India earned $4.8 billion in 2014. For the first time, we earned more from the export of buffalo meat than from Basmati rice.

 In the Constituent Assembly, some members wanted a complete ban while others were in favour of partial prohibition. Dr Raghu Vira argued that in our civilisation ‘Brahma hatya’ and ‘go hatya’ are the same. It is interesting to note that Muslim members made a forceful case for the inclusion of cow slaughter in the fundamental rights chapter of the Constitution, so that the prohibition becomes absolute. ZH Lari strongly argued for the inclusion of the ban on cow slaughter in fundamental rights and opposed its inclusion in the directive principles, which are vague and non-justiciable. Syed Muhammad Saadulha also favoured a total ban. Finally, cow slaughter was inserted only as a directive principle in Article 48. 

A historical fact which is often not talked about is that most Muslim rulers of India did, in fact, ban cow slaughter, even for the purposes of Bakr Eid, keeping in mind the Hindu sentiments. Cow slaughter was, for the first time, banned by Mughal emperor Babar in 1527, though many Hindu rulers did not ban cow slaughter in their territories. This ban was lifted by the British government. It is  interesting to note while the general criminal law of the country — Indian Penal Code, 1860 — does not prohibit  cow slaughter, J&K specifically prohibits cow slaughter. During Muslim rule, only 20,000 cows were slaughtered in a year, but the British were killing about 30,000 a day. The British established India’s first slaughterhouse in 1761.

The cow protection movement of 1880-1894 was basically directed against the British, and Muslims actively participated in it. The recent Deoband fatwa, banning cow slaughter received no media attention. Jamiat Ulema-e-Hind and some professors of Aligarh Muslim University are now openly favouring the ban. In the Koran, cow meat is lawful, but the Prophet did say it was bad for health. Thus, though the latest Gujarat government advertisement has wrongly quoted Koran, the message is right.Twenty of the 29 states have banned cow slaughter. Some laws came up for the scrutiny of courts and almost all were upheld as constitutional, but there is the issue of cow slaughter and freedom of religion which has not been fully appreciated in the current discourse.

The judiciary has held that freedom of religion allows a citizen to follow only essential practices of his religion. Sankara of Jains, untouchability of Hindus, mosques of Muslims and tandava dance of Anand Margis were held as non-essential religious practices. The slaughter of animals on Bakr Eid is a fundamental obligation of every Muslim who owns specified assets. In a case from Bihar in 1958, it was rightly held by the apex court that cow slaughter is not an ‘essential Islamic practice’ as Islam does not mandate Muslims to slaughter only cows on Bakr Eid. But then, why no one ever raised the question about the status of cow under Hinduism?

Is cow reverence an ‘essential practice’ of Hinduism? Was beef eating not common in the Vedic and subsequent times, even among Brahmins? Similarly, the laws which ban any slaughter on some days in a year, such as Ram Navami, Gandhi Jayanti, Mahavir Jayanti, etc. or for a few days, as is being done in Mumbai, may not violate, in the opinion of the apex court, freedom of trade of butchers under Article 19 (1)(g) of the Constitution.

But since Muslims do follow the lunar calendar, and thus if on any of these days, Bakr Eid was to fall, a constitutional problem will be at hand as the court’s verdict of upholding such laws, will then come in conflict with the right to religion guaranteed to Muslims under Article 25. T

he Mumbai prohibition of all meat consumption is logically unreasonable, legally untenable and constitutionally suspect.The silver lining is that beef consumption is down in the country (44 per cent in 2014 from 2000), and so in a few decades, the issue may die a natural death. Let unhealthy red meat make way for healthier food out of citizens’ choice, and not out of compulsion. — The writer is the Vice-Chancellor of NALSAR University of Law, Hyderabad