Bombay High Court’s Beef Ban Judgment Marks Triumph of Privacy Rights over ‘Hindu’ Sentiment

By declaring that citizens cannot be prevented from eating beef obtained from a state or country where there is no prohibition on slaughter, the court has narrowed the scope of state intervention on the question of cow slaughter to the protection of clear agricultural interests and nothing else.

Rescued cattle are seen at a "goushala", or cow shelter, run by Bharatiya Gou Rakshan Parishad, an arm of the Hindu nationalist group Vishwa Hindu Parishad (VHP), at Aangaon village in Maharashtra. February 20, 2015. Credit: Reuters/Shailesh Andrade

Rescued cattle are seen at a “goushala”, or cow shelter, run by Bharatiya Gou Rakshan Parishad, an arm of the Hindu nationalist group Vishwa Hindu Parishad (VHP), at Aangaon village in Maharashtra. February 20, 2015. Credit: Reuters/Shailesh Andrade

The recent judgment of the Bombay high court on a slew of clubbed petitions challenging the constitutionality of the 2015 amendment to the Maharashtra Animal Preservation Act 1978 has stirred up another hornet’s nest in the persistently hornet-infested issue of the constitutionality of legislation regulating the slaughter of cattle and consumption of beef in India.

The Amendment Act in question (which was passed by the Maharashtra legislature in 1995 and received presidential assent 20 years later) sought to extend the bans on the slaughter of cows and calves to bulls and bullocks (section 5 of the Amendment Act), and prohibit the transport (from Maharashtra to another state), the export, as well as the purchase, sale and disposal of cows, bulls and bullocks for the purpose of slaughter (sections 5A and 5B).

Further, it sought to prohibit the possession of the flesh of the cow, bull or bullock slaughtered in contravention of the provisions of the Act (section 5C), and perhaps most controversially of all, the possession of beef per se, whether or not this was obtained through lawful slaughter from another state (section 5D). The Amendment Act also stipulated a punishment of five years and/or a fine of 10,000 rupees for contravention of the prohibitions on slaughter, transport, export, purchase and sale and one year and/or a fine of 2000 rupees for the contravention of the prohibitions on possession of beef. Further, in a strident but not atypical measure (in the context of laws regulating cow slaughter), the Amendment sought to put the burden of proving that s/he was not in contravention of provisions of the Act onto the accused (section 9B).

A significant ruling

This is a significant ruling in a long line of judgments on cow slaughter on two counts: first, it has brought the ancillary activities that are prohibited in laws regulating the slaughter of cattle (the transport and export of cattle for the purpose of slaughter, and the sale, purchase and possession of slaughtered meat) up for serious judicial scrutiny, and second, it has introduced the right to life and the attendant right to privacy as serious contenders in an already crowded list of fundamental rights and constitutional issues at stake in the regulation of cow slaughter.

Since independence, our courts have had to contend with challenges to the constitutionality of laws regulating cow slaughter on three significant counts:

  • the right to equality (Article 14),
  • the right to practice any profession, or to carry on any occupation, trade or business (Article 19 (1) (g)), and
  • the right to freedom of religion (Article 25).

The Supreme Court decision in the Mohd Hanif Quareshi case in 1958 provided the benchmark for laws regulating cow slaughter and court decisions that followed for nearly 50 years.

In this judgment, the court rejected the arguments on the right to equality (on the basis that the classification between the butchers who slaughter goats and sheep and those that slaughter bovine cattle was a valid one because of the usefulness of cows and female buffaloes). The court also rejected the argument that the impugned Acts violated the right of Muslims to profess their religion because it found that of the religious duty to sacrifice cows was not obligatory. The only contention of the petitioners that was considered positively by the court was the right to practice any profession or carry on any occupation. Here again, the court relied on arguments relating to the usefulness of bovine cattle in a largely agrarian economy – in the production of milk, the use of bulls for draught power and manure for agriculture. Based on this, it reached the conclusion that the total ban on the slaughter of cows of all ages, and the slaughter of calves of cows and buffaloes was to be upheld, whilst the ban on buffaloes and bulls, bullocks was valid so long as they were capable of being used in milch and draught cattle. Once buffaloes and bulls ceased to be capable of yielding milk or of breeding or working as draught animals, prohibitions on their slaughter were no longer in the interests of the general public and were in fact a burden on resources.

The arguments on the usefulness and centrality of cattle to a largely agrarian economy draw their constitutional legitimacy from Article 48 of the Indian constitution, a directive principle of state policy, which urges the state to organise agriculture and animal husbandry on modern and scientific lines, to take steps for preserving and improving the breeds and prohibiting the slaughter of cows and other milch and draught cattle.

Since Hanif Quareshi, there have been several other challenges to Acts regulating cow/cattle slaughter on the grounds of the right to religion and the right to practice any occupation (see for instance, Hashmatullah v State of Madhya Pradesh & Ors and State of W.B. v Ashutosh Lahiri). Although there have been varying decisions on the constitutionality of bans of slaughter of bulls and bullocks below and above a certain age, the consistent view over this period was that a ‘total’ ban on ‘cow slaughter’, viz., a complete ban extending to the slaughter of bulls and bullocks for all their lives, was an unreasonable restriction on the fundamental rights of butchers.

This long-settled position in law was to see a marked shift in 2005, when a seven-judge bench of the Supreme Court in Mirzapur Moti Kureshi Kassab Jamat and Ors upheld, with a majority of six,  a complete ban on the slaughter of all cows and their progeny, viz., cows, bulls, bullocks, heifers and calves, in the state of Gujarat. The argument that such a ban infringes the fundamental right of butchers to profess any occupation (that had been upheld in Hanif Quareshi) was struck down by the court with the reasoning that the law provided a reasonable restriction and not a prohibition on the right to profess any occupation. Moreover, the court also revised the understanding of ‘usefulness’ of bulls and bullocks that had informed judicial reasoning thus far, by ruling that bulls and bullocks remained useful throughout their lives (beyond their use for draught power) as the urine and dung produced was useful for manure and bio-gas. In strengthening its case for the protection of bulls and bullocks, the court also relied on Article 51 A(g) (which imposes a duty on citizens to to protect and improve the natural environment and to have compassion for living creatures) to note that showing compassion towards animals meant protecting ‘useless’ cattle from slaughter.

Challenges to the laws

It is in the light of the judgment in Mirzapur, which had struck down challenges on all previously used grounds of violation of fundamental rights that the Bombay high court judgment takes on significance.

While several of the previous arguments on the rights to equality, to practice any occupation, trade or business, and the right to freedom of religion were reprised by the slew of petitioners, interestingly, there were also further challenges to the Act based on the right to privacy, which some of the petitioners argued, is enjoined in the right to life and personal liberty (Article 21). Importantly, this understanding of the right to privacy and personal liberty was fleshed out as a right to choose what a citizen may eat and consume. There were other challenges too, based on Art 29 (protection of the rights of minorities). A few petitions also contended that some of the provisions of the Act (particularly pertaining to the possession of beef per se) contravened Article 48, were arbitrary and had no nexus with the purpose, object and ambit of the Maharashtra Animal Preservation Act.

The various challenges to the laws on cattle slaughter over the years, as well as the increasingly strident prohibitions against such slaughter are indicative of the diverse and contested nature of the economic, ethical, religious and ecological relationship with cattle amongst communities. I have argued elsewhere that the constituent assembly debates on Article 48 provide a window into the initial constitutional resolution to these diverse ideological pulls, with the agreement to word Article 48 in terms of scientific rationality being understood by the interlocutors to the debate as an uneasy compromise on the Hindu reverence for the cow. Article 48 is framed in this sense by a constitutive elision – one which allows it to speak the language of scientific rationality while reflecting a (purportedly compromised) Hindu sentiment on cow slaughter. It is this double move – of at once reflecting ‘Hindu sentiment’ while purportedly not doing so – that has been at the heart of the juridical relationship with cow slaughter. In this double move, religious considerations come into view and then disappear, allowing for the perpetuation of an emperor’s clothes-style legal fiction that Article 48 is indeed not about religion at all, but about the scientific organisation of agriculture and animal husbandry.

Subsequent judicial pronouncements have been made in the wake of this legal fiction; they have interrogated every other aspect of the debates on cow slaughter (including the Muslim belief in cow slaughter, the consequences of the bans on the right to profess any occupation, the right to equality, etc.) but have not subjected (or have not been able to subject) ‘Hindu sentiment’ on cow slaughter to similar scrutiny, even as they have declared upon and reiterated Hindu sentiment on cow slaughter. What this has meant is that arguments around the ‘usefulness of the cow’ which has framed debates on the regulation of cow slaughter have proceeded without an adequate and concomitant interrogation of the Hindu sentiment on cow slaughter. Therefore, the cow is inviolable (even since Hanif Quareshi) while the admittedly more useful buffalo has not received similar protection. Even if we view the judgment of Hanif Quareshi as an essential compromise, and an important exercise in tolerance in a diverse and secular plurality such as India, the further and more strident prohibitions on cattle slaughter since – one of which has been upheld by Mirzapur – demonstrate the lack of a reciprocal tolerance.

Parsing the Bombay HC judgment

In dealing with the various contentions before it, the Bombay high court  first and foremost determined the constitutionality of the extension of the ban on cow and calf slaughter to bulls and bullocks. It is unsurprising, as Gautam Bhatia suggests, that the court upheld the extension of the bans to bulls and bullocks as it was bound by the precedent set by Mirzapur, which dealt with a similar ban.

The more interesting aspects of this judgment have to do with the arguments brought into play to contend with the prohibitions on the bans of ancillary activities, viz., the transport, export, sale and purchase of cattle for the purposes of slaughter, and the possession of beef obtained through such slaughter or from another state.

In dealing with the first of these for instance – transport of cattle from within the state to outside the state for the purpose of slaughter, or with the knowledge that it will be or is likely to be so slaughtered (section 5A (1)) – the court noted that the state of Maharashtra cannot in fact make the slaughter of cattle (from Maharashtra) in another state an offence as it is outside their legislative competence to do so. As such, the court notes, ‘the section, as worded, makes little practical sense’ as it may cover ‘a hypothetical case of such transport of animals outside the state so as to slaughter it [… after which it] is brought back to the state possibly by the slaughterer himself, the transporter and slaughterer being different persons’.  Even so, on the basis that there was a direct and proximate nexus between the section and the object of preserving cows, bulls or bullocks inside the state, the court upheld the validity of the section. Gautam Bhatia, in his assessment of this argument, contends that the court’s reasoning is flawed because if the purpose of the Act is to truly preserve and protect cows, bulls and bullocks due to their centrality to Maharashtra’s agrarian economy, then the court should prohibit the transport of cattle per se, rather than the transport of cattle for the purposes of slaughter.

Similarly, in assessing the constitutionality of section 5C (possession of the flesh of the cow, bullock and bull slaughtered in contravention of the Act), although the court upheld the constitutionality of this provision, again because it saw that the prohibition had a direct and proximate nexus to the objective of the Act, it did so with a caveat – that the offence is only for conscious possession, and not possession per se. Further, the court also struck down the negative burden placed on the accused to prove s/he was not in contravention of the Act as unconstitutional. Giving considerable thought to the bases on which states could impose such a burden, the court ruled that the procedure prescribed by section 9B read in conjunction with sections 5, 5A, 5B, 5C and 5D could not be said to be fair, just or reasonable.

Right to privacy

The understanding that the Amendment Act does more than prohibit the slaughter of cattle and ancillary activities in the state’s agrarian interests was most clearly found in the court’s assessment of section 5D, which prohibits the possession of beef per se, no matter its provenance.

In assessing the question of whether this section infringes the right of privacy (which includes the right to eat food of one’s choice), the court examined whether the right to privacy is a part of the personal liberty guaranteed by Article 21. On this, based on a reading of a line of precedents, it ruled that the ‘position of law as it stands today and which is reflected from the series of binding decisions is that the right of privacy is part of personal liberty guaranteed under Article 21 of the Constitution of India’. One of the decisions that the court relied on was the judgment of the Supreme Court in Hinsa Virodhak Sangh which directly addressed the question of legal compulsions in relation to food practices. Although the court in this case upheld the impugned resolution by the Municipal Corporation of Gujarat which sanctioned the closure of slaughter houses during the period of the Jain Paryushan festival on a test of reasonableness, the court also opined that, ‘[A] large number of people are non-vegetarian and they cannot be compelled to become vegetarian for a long period. What one eats is one’s personal affair and it is a part of his right to privacy which is included in Article 21 of our constitution as held by several decisions of this court’.

The Bombay high court’s ruling on the right to privacy as it pertains to food consumption practices is worth quoting at length:

‘As far as the choice of eating food of the citizens is concerned, the citizens are required to be let alone especially when the food of their choice is not injurious to health…The state cannot make an intrusion into his home and prevent a citizen from possessing and eating food of his choice. A citizen has a right to lead a meaningful life within the four corners of his house as well as outside his house. This intrusion on the personal life of an individual is prohibited by the right to privacy which is part of personal liberty guaranteed by Article 21. The state cannot prevent a citizen from possessing and consuming a particular type of food which is not injurious to health (or obnoxious)’.

This legal recognition of a right to privacy in food consumption practices is all the more important given that previous judgments on cow slaughter have not acknowledged such a right. Although this right was articulated in Hinsa Virodhak, in this case, the Bombay high court not only upheld the right, but also struck down a provision on this basis. Moreover, while previous judgments of the Supreme Court have acknowledged that beef or buffalo meat was consumed by large sections of poorer people belonging to the Muslim, Christian and Scheduled Castes communities (Hanif Quareshi), this recognition was not articulated in terms of a fundamental right.

Overall, the incursions made by the Bombay high court into the prohibition of ancillary activities surrounding slaughter provide a window into similar challenges to other legislation (such as the Delhi Agricultural Cattle Preservation Act, 1994 or the recent Haryana law) which prohibit both the possession of beef slaughtered in contravention of Acts as well as the possession of beef per se. Further, the court’s finding that preventing citizens from eating beef obtained from a state or country where there is no prohibition on slaughter was not in consonance with the objective of protecting the cow and its progeny from slaughter within the state, considerably restricts the scope of state intervention beyond clear agricultural interests.