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.