1 Jun 2017 7:03 AM GMT
In the aftermath of the brutal lynching of Akhlaq in Dadri, several op-eds appeared pointing towards the contradiction between the shared belief of Hindus in general and the different holy texts of Hinduism in particular, suggesting that eating beef was not forbidden in Hindu religion, in fact several instances cited in these pieces have demonstrated that eating beef including cow has...
In the aftermath of the brutal lynching of Akhlaq in Dadri, several op-eds appeared pointing towards the contradiction between the shared belief of Hindus in general and the different holy texts of Hinduism in particular, suggesting that eating beef was not forbidden in Hindu religion, in fact several instances cited in these pieces have demonstrated that eating beef including cow has been considered pious for Hindus. These revelations have endeavoured to assert the fact that milch animals including cows have not been historically held sacred by Hindus in the manner in which it is so held by a large section of Hindus at present, whereby, eating beef becomes an absolutely detestable sin. These revelations, however, are not primarily against those who simply treat cow as sacred and therefore oppose eating beef, rather this is mainly to smother the motive and inane justification behind the murderous rage of those radicals who assume that alleged beef eaters must be punished in accordance with the collective conscience of the enraged mob which treats lynching at par with the due process.
There are numerous instances in India when cow and its progeny i.e. bull, bullocks and calves are worshipped on specified days during Diwali and other festivals like Makar Sankranti and Gopashtmi. A good number of temples will have the statue of ‘Nandi’ or Bull which is regularly worshipped. However, there is nothing wrong in challenging the basis of treating cow and other milch animals as sacred by Hindus, especially when it is based on facts derived from ancient Hindu texts only. At the same time, there is in fact a constitutional justification for beef ban in the form of Article 48 of the Constitution of India, which forms part of the Directive Principles of State Policy (DPSP). Strangely, the justification for the beef ban under Article 48 does not refer to any religious or sacred purposes of the Hindu religion and justifies the protection for agricultural reasons. According to Article 37 of the Constitution, all the principles of DPSP are fundamental in the governance of the country and it is the duty of the State to apply these principles in making laws. Article 48 of the Constitution of India says –
“The State shall endeavour to organise 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.”
Interpretation of Article 48
Article 48 consists of two parts. The first part enjoins the State to endeavour to organise agriculture and animal husbandry on modern and scientific lines. The second part enjoins the State, dehors the generality of the mandate contained in the first part to take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle. This provision mandates prohibition on cow slaughter even after it ceases to be milch. This is also the case with calves that have been held to be entitle to protection from slaughter irrespective of their age, even if they are not yet fit to be employed as ‘draught cattle’. This is a settled constitutional position. A seven judges constitutional bench of the Supreme Court by a 6:1 verdict in the year 2005 in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat & Others, while interpreting Article 48 held that the ‘other milch and draught cattle have been used as a matter of description of species not with regard to age. Thus ‘milch and draught’ used as adjective, simply enables the classification or description of cattle by their quality, whether they belong to that species. This classification is with respect to the inherent qualities of cattle to perform a particular type of function and is not dependent on their remaining functional for those purposes by virtue of age of the animal. Relying on this interpretation, the Supreme Court held that complete ban on the slaughter of cow and calves and other milch and draught cattle irrespective of their age is mandated by this provision. The Supreme Court also emphasized the mandate of the fundamental duty enshrined in the Constitution in the form of Article 51-A (g), which states that “It shall be the duty of every citizen of India to protect and improve natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.” The court particularly highlighted ‘compassion for living creatures’ as something which is in sync with the spirit underlying Article 48.
However, Article 48 by itself cannot justify beef ban. If such a ban deprives an individual of his right to practice any profession, or to carry on any occupation, trade or business which is a fundamental right under Article 19 (1)(g) of the Constitution, then such ban can only be constitutionally valid if it passes the test of reasonable restriction in the ‘interest of general public’ as per Article 19(6) of the Constitution. The Supreme Court in Mirzapur Moti Kureshi Kassab Jamat case held that giving effect to the mandate of Article 48 by the State in its totality also would not deprive individuals engaged in the meat trade, of their right given under Article 19(1)(g), as they will still be free to slaughter other animals. Further, the Court also held that the complete beef ban is in the interest of general public as well, because even after the cattle ceases to breed or becomes too old to do work, they still continue to give dung for fuel, manure and bio-gas, and therefore, they cannot be said to be useless. The Court observed “It is well established that the backbone of Indian agriculture is, in a manner of speaking, the cow and her progeny and have on their back, the whole structure of the Indian agriculture and its economic system.”
Setting the Terms of the Debate Right
Any debate on the reasonableness of beef ban which divorces these constitutional realities from the ambit of the debate is flawed. It is perfectly fine to question the reasonableness of these constitutional principles but it is entirely impermissible to ignore its existence or while recognising its existence, rejecting it with contempt. A constitutional principle cannot be declared to be unconstitutional, so long as it is part of the Constitution. It can only be repealed by the process of constitutional amendment provided in the Constitution itself. But so long as these principles are part of the Constitution, it is definitely worthy of the respect which must be accorded to a constitutional principle. A debate which is not involving the issue of reasonableness of these constitutional principles presumes these principles to be reasonable and therefore, cannot question even a complete beef ban. Of late, it has become fashionable in relation to specific issues to deride the call for the enforcement of the certain constitutional principles without questioning the reasonableness of the constitutional principle itself. The issue of Uniform Civil Code is also one such example, which is mandated by Article 44 of the Constitution being another DPSP. The opponents of Uniform Civil Code would consider this as antithetic to the plural ethos of India but would not address the effect of this being a constitutional mandate.
This attitude may also be because of the lack of courage if not conviction to challenge a constitutional principle as being unconstitutional in its spirit. This also appears to an oxymoron. But this is a fact, that our Constitution has been amended more than hundred times by now and not always to add something new but also to correct certain anomalies or do way with the provisions which have become anachronistic. Supreme Court in the case of Kesavanand Bharati (1973) has held that a constitutional amendment cannot alter the basic feature of the Constitution. This clearly means that in our Constitution certain principles can be amended and certain principles which form part of the basic feature of the Indian Constitution cannot be amended. Why, therefore, it cannot be argued that a provision like Article 48 of the Constitution can be omitted by a constitutional amendment by the Indian Parliament owing to its unreasonableness and that this is permissible because it does not form part of the basic feature of the Indian Constitution. This will also explain how there can be a valid argument suggesting that a constitutional principle is actually unconstitutional and therefore, it must not continue to be the part of the Constitution. In fact, the fact that there is a possibility of a literal constitutional provision being contrary to the constitutional spirit makes this task all the more pressing. But this argument certainly cannot be treated as an alibi for ignoring the existence of a provision like Article 48 or by being completely oblivious to its existence bordering on contempt.
Manwendra Kumar Tiwari is an Assistant Professor in Dr. Ram Manohar Lohiya National Law University, Lucknow.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]