It's Time the Supreme Court Untangled Its Contradictory Rulings on Cow Protection

Thirty petitioners – some Dalits, some not, some representing sex workers and others who say eating beef is part of their food culture – are challenging Maharashtra's ban on the slaughter of bulls and bullocks and the consumption of beef of cattle slaughtered in Maharashtra.

The Supreme Court of India is currently considering a petition contesting the validity of the recent judgment by the Bombay high court upholding the state’s 2015 law banning the slaughter of bulls and bullocks in Maharashtra, irrespective of their age and utility. The law also prohibited the consumption of the meat of such animals regardless of where they were slaughtered, but the high court said the eating of beef from cattle slaughtered outside Maharashtra could not be banned.

The high court’s decision is being challenged by both gau rakshaks (cow protectors) and ordinary members of civil society. The gau rakshaks complain that the court ought not to have struck down the ban on importing beef from a state where cow slaughter is legal, since this will encourage the slaughter of animals meant for agriculture. The civil society petitioners, however, argue that the ban on the slaughter of cows, bulls and bullocks – after they have ceased to be useful for milk or cannot be used as a draught – is unconstitutional and violative of a citizen’s fundamental rights to a ‘desirable diet’. As these two pleas face off against each other, the Supreme Court will once again have to balance an individual’s right to food with the directive principles of state policy which call for the preservation of the cow as well as milch and draught animals since “the backbone of Indian agriculture is in a manner speaking the cow and her progeny the agriculture“.

The petitioners asking for the ban to be lifted intend to provide expert evidence that the slaughter of these animals, after they have ceased to be useful for milk and as draught animals, has no adverse impact on Indian agriculture. On the contrary, not being allowed to sell these animals negatively impacts the ability of the farmer to buy new cattle to breed as there is not enough money in hand. But for now, it would appear that the stated purpose of the ban is to impose the religious beliefs of the majority community – which couches its demands in the scientific language of protecting ‘the interest of Indian agriculture’ – on citizens of other faiths.

The Supreme Court’s 2005 judgment in Mirzapur seems to do just that. It justifies the total ban on cow slaughter – which was earlier confined, via its 1958 judgment in Quareshi, to a ban on the slaughter of ‘useful’ cattle – by arguing that soil conditions could be improved with the dung of  animals that were past their productive life and hence they continue to be ‘useful’ to agriculture.

The Bombay high court’s ruling raises issues never addressed by the courts before, such as

  • Can food habits be criminalised?
  • Is there a right to preserve food cultures under the constitution?
  • Is the right to a ‘desired diet’ a protected fundamental right under Article 21?
  • Is the right to an affordable source of protein for the bottom 30% a protected fundamental right?
  • Is the right to food of choice not a part of the right to life?

This is perhaps the first time that consumers of beef have approached the Supreme Court on purely secular grounds. All previous petitions in the courts have been on behalf of butchers and their right to carry on a profession or of Muslims claiming that slaughtering cows is an essential part of their religion.

The latest petition focuses on the right to eat – a basic right to stay alive.

This issue has become increasingly vexing as cow vigilante groups all over India are wreaking havoc on the secular liberal ethos of the country, committing unspeakable violence against Dalits and Muslims. The problem is plainly evident in the case of Una, Gujarat where four Dalit boys were mercilessly beaten and stripped by local gau rakshaks.

The Supreme Court’s contradictory judgments

The fact that this heightened cow vigilantism, or rather lumpenism, is using India’s apex court to justify some of its behaviour, makes the issue even more perplexing. The reason is the (in)famous Mirzapur judgment of the Supreme Court in which a 7-judge bench of the court overruled 45 years of almost settled jurisprudence on the slaughter of bulls and bullocks in India.

In Mirzapur, the Supreme Court basically set out to reverse the judgment passed by its constitution bench in Quareshi. The judgment established a constitutional contract that cows and their progeny would not be slaughtered until they stopped producing milk and a bull or bullock could not be slaughtered until it stopped being useful for draught purposes. This established some peace and though several attempts were made to reverse the judgment, the Supreme Court stoutly rejected them.

What changed in 2005? Why did the Supreme Court decide to turn its back on a settled judgment that aimed at harmonising the tension between the directive principles of state policy and the fundamental rights of citizens?

Firstly, in August 2001, the then NDA government of Atal Bihari Vajpayee established the National Commission on Cattle that was tasked to review central and state laws about cows and their progeny. The commission examined laws relating to the protection, preservation, development and well-being of cows and their progeny, suggested measures for implementing these laws more effectively and studied the contribution of cattle to India’s economy. The commission submitted its report to the government in 2002.

Secondly, a Supreme Court bench of seven judges, presided over by Justice Lahoti decided to re-examine the issue. What followed gives one cause for concern. The court eschewed all established principles of constitutional interpretation and singularly focused on the utility of cows and their progeny, especially on cow dung. This line of investigation excluded the fundamental rights of butchers, who are employed in slaughtering ‘useless’ cattle, and others engaged in ancillary industries and work with hides or at tanneries and so on.

In particular, while interpreting the directive principles of state policy, the court misinterpreted and misused the role of these principles in our constitutional framework – thus making them antagonistic to the fundamental freedoms guaranteed in Part III of the constitution.

In the same judgment, the court observed that: “The interest of a citizen or section of a community, howsoever important, is secondary to the interest of the country or community as a whole.” The “country” thereby entered into a hostile relationship with its people. By completely subsuming people’s fundamental rights under the pretence of ‘protecting the interest of the country or community’, the court went against the clear intention of the constitution – fundamental rights cannot be abrogated. This interpretation was both disingenuous and dangerous and precisely what the constitution-makers wanted to guard against. And the results of this decision are widely apparent when human lives are taken at will ostensibly to protect ‘cows’.

To add to this, the court only relied on Articles 48, 48A and Article 51A(g) of the constitution. Article 48 directs that the state shall “organise agriculture and animal husbandry on modern and scientific lines, and shall in particular, take steps for preserving and improving the breeds”. It also prohibits the slaughter of “cows and calves and other milch and draught cattle.” Article 48A pertains to the protection and improvement of the environment and safeguarding the forests and wildlife of the country. Article 51A(g) directs citizens to have compassion for living creatures.

Until the Mirzapur ruling, the Supreme Court had categorically held that an absolute prohibition on the slaughter of bulls and bullocks was not necessary to comply with Article 48. But this was overturned in Mirzapur on the basis that past decisions had stripped Article 48 of its true vitality; and so coupled with Article 48A and Article 51A(g), the court held that a total ban was reasonable.

However, in this case the Supreme Court very conveniently ignored the countervailing effects of other directive principles and fundamental duties that address the issue. For instance, Article 38 mandates that the state secure a social order for the promotion of welfare of the people. It adds that the state “should strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.”

Delving into the constitution

Article 46 covers the educational and economic interests of the weaker sections, including the Scheduled Castes and the Scheduled Tribes, and continues that the state “shall protect them from social injustice and all forms of exploitation.”

These directive principles make it clear that the state has a solemn obligation to promote a social order that upholds the rights of all communities, including Dalits and Muslims, and that it protect them from injustice and exploitation.

The laws which prohibit slaughtering bulls and bullocks go against the mandate expressed in these directive principles. These laws deprive millions of Dalits of their right to cheap protein in the form of beef and deny the right to earning a livelihood to Muslim butchers.

Similarly, Articles 51A(e), (f) and (h) prescribe a fundamental duty for citizens to promote harmony amongst all communities, preserve the rich heritage of our composite culture and “to develop the scientific temper” and humanism.

All these duties promote the values of communal harmony, tolerance and urge citizens to discard any unscientific and bigoted opinions. Acknowledgment of these was sorely lacking in Mirzapur. The directive principles, which until then, were used to expand the content of fundamental rights were suddenly used to contract those very rights and even abrogate them. This is to turn the constitution on its head.

One of the important reasons claimed by Mirzapur to overrule Quareshi is that the factual basis of Quareshi has undergone complete transformation and this claim is buttressed by reliance on lots of documents and affidavits presented by the state of Gujarat.

The economic value of bovine dung

One such claim made by the state of Gujarat about the apparent utility of cattle dung is that “it is estimated that a bull or bullock at every stage of life supplies 3500 kg of dung and 2000 litres of urine and whereas this quantity of dung can supply 5000 cubic feet of biogas, 80 MT of organic fertiliser, the urine can supply 2000 litres of pesticides and the use of these products in farming increases the yield very substantially. The value of the above contribution can be placed at Rs 20,000/- per year to the owner.”

The court does not indicate where it got this data from but it seems to be have been taken from an article written by Panna Lal Mundhra, chairman of the Animal Welfare Board of India. It was rejected by the Supreme Court of India itself in Hashmatullah (1996) on the ground that the statement was not verified and did not refer to accurate sources of that data. The court in fact frowned upon the high court for relying upon unverified and vague statements made by certain individuals. It is rather surprising that data and documents that were discredited in previous Supreme Court judgments were not just accepted uncritically by the Supreme Court in Mirzapur but even given the stamp of approval.

Following this, the Supreme Court heavily relied on the Report of the National Commission on Cattle that was set up in 2002, as noted before. Merely perusing the introduction of the report makes it evident that it was ideologically biased and predetermined to prohibit the slaughter of all cattle. It recommended that cow protection should be made a part of fundamental rights. Evidently the court in Mirzapur should never have relied on a biased report like that.

The results were farcical. The court – quoting from one of the affidavits of the state of Gujarat that referred to the National Commission on Cattle report – stated:

the value of dung is much more than even the famous “Kohinoor” diamond. An old bullock gives 5 tonnes of dung and 343 pounds of urine in a year which can help in the manufacture of 20 carts load of composed manure. This would be sufficient for manure need of 4 acres of land for crop production. The right to life is a fundamental right and it can be basically protected only with proper food and feeding and cheap and nutritious food grains required for feeding can be grown with the help of dung. Thus the most fundamental thing to the fundamental right of living for the human being is bovine dung.

There are many more such gems, comparable even to the Kohinoor, strewn all over the judgment of Mirzapur. One lacks the heart to count them all.

Thirty bold men and women are petitioning the Supreme Court to challenge the Mumbai high court’s May 2016 judgment which upheld the ban on slaughtering bulls and bullocks and prohibited the consumption of beef of cattle slaughtered in Maharashtra. The petitioners belong to different persuasions, some are Dalits, some not, some are representing sex workers and there are others who say eating beef is a part of their food culture.

Their petition begins with the statement, “One man’s (read woman) meat is another man’s (read woman) poison.” They hope to establish the right to have a “desirable diet” as a fundamental right and make it a part of Article 21 in the constitution. This will require a bench larger than seven judges to reverse Mirzapur. They have also pointed to the fact that controlling food habits is unconstitutional and violative of the right to food under Article 21.

They say a whole community is being stigmatised and fearful of possessing any beef or products made from cow hides, even if they acquire these products through legitimate means and even if it is a dead cow. The petitioners have also pointed to the persecution of Dalits in Gujarat and elsewhere in the country as a direct outcome of the beef ban and are calling for it to be repealed.