Law

Examining the Constituent Assembly Debates on Cow Protection

Article 48 of the constitution was worded in scientific terms, but it is clear that the formulation of the provision involved a distinctive presence of religious fervour.

constituentassembly

Credit: Journal of Indian Law and Society

The Indian cow has every now and then grazed the political, economic and social landscape. Historically, it has been a prominent cause of communal strife in the country. The recent victimisation of Dalits and Muslims in the name of the gau mata has brought the holy cow back into discussion and debate.

The cow is protected under Article 48 of the constitution, which says the state must impose the prohibition on the slaughter of cow and cattle.

Many freedom fighters had promised that the first goal of the Swadeshi government would be to impose a ban on cow slaughter. In 1940, a special committee of the Congress had also opined for the protection of cows. In fact, Mahatma Gandhi had once declared that a prohibition on cow slaughter was more important to him than swaraj itself.

Historical antecedents

The cow did not find protection in the draft constitution of B.N. Rau or in the one prepared by the drafting committee of the Constituent Assembly. The fundamentalists of the Congress party prepared the groundwork for the entry of cow in the constitution of the country. However, it was Rajendra Prasad, the president of the Constituent Assembly, and later, the country, who clandestinely spearheaded the campaign.

On numerous occasions, he had expressed his desire for a ban on cow slaughter and in a letter to Jawaharlal Nehru, written a few days before independence, he wrote:

“I have been flooded with postcards, letters, packets and telegrams making demand that cow slaughter should be stopped by legislation. The Hindu sentiment in favor of cow protection is old, widespread and deep-seated. The Hindu feeling on account of recent happenings is very much agitated and this movement… is bound to gain strength more rapidly than we can imagine.”

Arguments for a ban on cow slaughter

The petitioners for the cow protection law included the likes of Seth Govind Das, Pandit Thakurdas, Shibban Lal Saxena, Ram Sahai and Raghu Vira among others. Incidentally, all of them also belonged to a dominant Hindu background.

Thakurdas, a Congress member from East Punjab and an outspoken advocate of Hindu sentiment, proposed the amendment for the prohibition of cow slaughter in the draft constitution. He began his speech by tendering economic arguments for cow protection and said that the solution for agricultural failure and human health lied in cow protection.

“The best way of increasing the production (of food crops) is to improve the health of human beings and breed of cattle, whose milk and manure and labour are most essential for growing food. Thus the whole agricultural and food problem of this country is nothing but the problem of improvement of cow and her breed.”

However, he quickly shifted gears to make religious claims:

“Our ancient sages and rishis, realising her importance, regarded her as very sacred. Here, Lord Krishna was born, who served cows so devotedly that to this day, in affection he is known as ‘Makhan Chor.’”

Thakurdas was known for his penchant for finding a middle ground and in his concluding remarks, he cautiously superseded rationale over religion. He claimed that his demand for cow protection was based on economic considerations and it wasn’t religiously motivated. While Thakurdas was careful in striking a balance between theology and economy, other assembly members failed in doing so. Das, another outspoken Hindu enthusiast, mentioned:

“The protection of cow is a question of long standing in this country. Great importance has been attached to this question from the time of Lord Krishna. I belong to a family which worships Lord Krishna as Ishtadev. I consider myself a religious minded person, and have no respect for those people whose attitude towards religion is one of contempt.”

He further proposed additional taxes for the protection of cows and asserted that the country would devotedly pay for it. The religious sentiments were carried forward by R.V. Dhulekar, who did not hesitate in placing an animal on a higher pedestal than family.

“And our Hindu society, or our Indian society, has included the cow in our fold. It is just like our mother. In fact, it is more than our mother. I can declare from this platform that there are thousands of persons who will not run at a man to kill that man for their mother or wife or children, but they will run at a man if that man does not want to protect the cow or wants to kill her.”

Another assembly member Raghu Vira called the cow the ‘mother of [the] nation’ and equated gau hatya with brahma hatya. Professor Shibban Saksena, who was among the liberal faces of the assembly, propounded that religion itself sanctified the good of humankind. He, however, astutely failed to mention the permissibility of cow slaughter in Islam and in other religions.

In all, the petitioners for cows brought fourth two stands of arguments – religious and economic. The religious argument rooted the ban on cow slaughter in the reverence attached to the cow in the Hindu culture. The economic argument was based on the multifarious utilities of the cow in an agrarian economy – the medicinal value of urine, usefulness of cow dung and the like.

However, a closer perusal would reveal that the economic claims were only an attempt at garbing the religious sentiments with some rationality. The supporters began their submissions by paying obeisance to science and modernity and ending up making religious pleas. The verbiage on economics in the provision could not conceal the religious sentiments of the cow supporters.

A discourse of Muslim appeasement

The narrative on cow protection took a unilateral discourse in the assembly – an appeasement of the Muslim minority to support the ban on cow slaughter. The advocates of cow protection accused the Muslim community of cow slaughter and it was projected that the Muslim community was the only one that stood against the ban on cow slaughter.

The Hindu members presented instances of Muslim rulers who had imposed a ban on cow slaughter and scrutinised Islam to highlight the pattern of beef consumption among Muslims. Pandit Bhargava mentioned:

But I would like to tell you that even during the Muslim rule, Babur, Humayun, Akbar, Jahangir and even in the reign of Aurangzeb, cow slaughter was not practised in India; not because Muslims regarded it to be bad, but because from the economic point of view, it was unprofitable.

His intention of targeting the Muslim members could be gathered from the fact that he artfully failed to mention examples of Hindu and Sikh rulers who had imposed similar bans. Das emphasised that cow slaughter was not an ‘essential practice’ of Islam and should hence be given up by the Muslims. He also mentioned the example of the Prophet, who never consumed beef.

He further propounded:

“I want to tell you what Babur, the first Mughal Emperor told Humayun. He said, ‘Refrain from cow slaughter to win the hearts of the people of Hindustan,'”

This comment fits perfectly in the undercurrent narrative of that time. The loyalty of the Indian Muslims was constantly challenged after the partition of the country. Das managed three things with this statement – one, he rendered the Muslims as outsiders who had to now win the hearts of the local population; two, he provided a litmus test of acquiescence in cow protection as a measure of loyalty and three, he reduced the idea of India to only non-beef eating Hindus.

The Muslim dissent

The minority representatives, particularly the Muslim members, presented conflicting opinions on the issue because their religion was constantly accused of cow slaughter. The minorities were skeptic of the manner in which cow was being admitted into the constitution. The hypocritical tendency of the fundamentalists to cloak their religious demands with economic garb inspired Zahir-ul-Hasan Lari to state:

“If the House is of the opinion that slaughter of cows should be prohibited, let it be prohibited in clear, definite and unambiguous words… I submit that this is the proper occasion when the majority should express itself clearly and definitely.”

He also revealed the inherent dichotomy in the proposed amendment. The first part of Article 48 endeavours the state to modernise animal husbandry and the second part prohibits cow slaughter. According to him, the two parts did not fit together because modernisation of animal husbandry would inevitably entail the extermination of unproductive cattle.

The dissent was also shouldered by Muhammed Saadulah, who was the premier of Assam. He pointed fallacies in the attempts of cow supporter to colour a clear distinction between Muslims – all of who were beef consumers – and Hindus – all of whom did not eat beef. He mentioned that all Muslims did not consume beef and that a cow was as useful to a Muslim agriculturalist as his Hindu counterpart. He also pointed out examples from his state where Hindus with big ‘sikhas were involved in cow slaughter.

The Muslim members merely asked for clarity on the matter and wanted the ban to be expressed in unequivocal terms. According to them, the emphasis on economic verbiage of Article 48 was both dubious and logically flawed.

However, the fascinating facet of this discourse was that although the Muslim members opposed the motion, they refuted the arguments primarily on religious grounds and not on economic ones. They wanted the Hindu members to openly declare the importance of cow in their religion, because of which the protection was granted. Mohammed Saadulah wanted the supporters to declare:

“This is part of our religion. The cow should be protected from slaughter… I know that the vast majority of the Hindu nation revere the cow as their goddess and therefore they cannot brook the idea of seeing it slaughtered. I am a Muslim as everyone knows. In my religious book, the Holy Quran, there is an injunction to the Muslims saying – ‘La Ikraba fid Din’, or, there ought to be no compulsion in the name of religion.”

While it is true that the Muslim members depicted a great sense of tolerance to an otherwise religious demand of the Hindu majority, the reason behind such accommodation is suspicious. The idea of secularism runs deep into the constitution. The Muslim members were well aware that any expression of religion in the constitution would be infallible and unjustified, but nonetheless pleaded the majority to explicitly colour the cow slaughter laws with religious markers.

In the end, the Muslim members consented to the cow being protected under the directive principles. Whether the assent was actually an expression of solidarity with the Hindus, or a coerced acceptance because of the overwhelming support for cow protection, remains unanswered till today.

The sacrifice and compromise by the majority

The more exuberant members of the Hindu right wanted the ban on cow slaughter to be classified as an enforceable and justiciable fundamental right. This would have placed the protection of cow on par with the other fundamental rights of the citizens.

Bhargava, while tabling the amendment for cow protection, mentioned that it entailed a ‘sacrifice’ for him because the provision could not be placed as a fundamental right. Similar claims were made by Das, who wanted ‘constitutional immunity’ for the cow and wanted the ban on cow slaughter in a manner similar to the prohibition of untouchability in the constitution.

The attitude of the Hindu right was spiteful in this regard. The majoritarian tune indicated that a favour was conferred on the minority by not including the cow in the fundamental right. People like Bhargava and Sahai vaunted their ‘generosity’ by working out a ‘compromise’ for restricting cow to a directive principle. They proclaimed their act to be a ‘sacrifice,’ an expression of ‘non-coercion’ towards the non-Hindus.

The unanswered questions

In the end, India was able to hide its irrationality from the world by protecting the cow in the directive principle and not in fundamental rights. Article 48 is also one of the rare provisions in the constitution where the Constituent Assembly was clearly fragmented on communal lines.

It is undisputed that Article 48 has been worded in terms of scientific organisation of animal husbandry and not on religious sentiments. It is also clear that the formulation of the provision involved a distinctive presence of religious fervour. It is this dichotomy of a religious soul with a non-religious body that gives an impression that the cow protection law is not about religion but about improved animal husbandry.

The hypocrisy displayed by the framers of the constitution has persisted in modern India. Various judicial pronouncements have revealed the undercurrent flow of religion and caste in the otherwise ‘secular’ laws on beef consumption and cow slaughter. What has also remained unchanged is the victimisation of minorities in the name of the holy cow.