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CIA 3

Constitutional Law 1

Constitutionality of the Beef Ban.

BY
Shobika Suresh
1316245
6 BA LLB C

Introduction:
Maharashtra Legislature had passed the Maharashtra Animal Preservation (Amendment) Bill,
1995, in the year 1995 when the Shiv Sena BJP ruled the state. This Bill has now been
assented to by the President Shri Pranab Mukherjee after a long gap of nearly 19 years. The
newly passed Bill amends the Maharashtra Animal Preservation Act of 1976 under which
slaughter of cows was already prohibited in Maharashtra. With this new Amendment, the
slaughter of bulls as well as bullocks (which was previously allowed based on a fit-forslaughter certificate) will also be banned now. After the news of this Amendment having
become law came out, mainstream media and social media have gone overboard with all
types of hate messages. Many people have tried to slam the new law to be on account of the
religious views of Hindus and the BJP. Many legal questions are being raised about the
validity of the new law. Questions about the fundamental rights of the butchers are being
raised. Questions about the rights of the beef-eaters have also been raised. Many of the
comments appearing on the social media (and, unfortunately even on the mainstream media,
especially in the comments sections) have gone on religious lines, targeting Hindu practices.
However, in this article, we will be focussing on the constitutionality of the beef ban itself.

Political Hues to the Beef Ban:


Why did the BJP suddenly and selectively ban beef? They say it is in the Constitution. That is
not quite true. In the Directive Principles Article 48 is titled "Organisation of agriculture and
animal husbandry". It mentions that the State shall "take steps for preserving and improving
the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught
cattle". Therefore there is no religious reason for the ban, it is to preserve and improve the
breeds. Has that been followed? However, milch and draught cattle includes buffalos, mithun
and yak, which are eaten in India, especially the first. That was no accident. But in every city,
town and village, stray and emaciated cows, calves and bulls are seen feeding on garbage.
How far is Article 48 being followed in scientific breeding of cows and calves? Hardly at all.
But it is crystal clear that there is no religious basis to the ban on cows including milch and
draught cattle. In any case Directive Principles are not binding, unless they are supporting a
Fundamental Right. This is clearly not the case here.

There are other Directive Principles. Article 41 lays down the "Right to work, to education
and to public assistance in certain cases" including "unemployment, old age, sickness and
disablement, and other cases of undeserved want". Ever heard any pious Hindutva politician
referring to this?
Article 39(b) "The State shall, in particular, direct its policy towards securing that the
ownership and control of the material resources are so distributed as best to subserved the
common good;" Article 39(d) "that there is equal pay for equal work for both men and
women; Article 44 "The State shall endeavour to secure for the citizens a uniform civil code
throughout the territory of India." None of these articles have been completely implemented.
Why not, after so many governments, political parties? They are clearly not interested. But all
of these articles seek to empower the Indian people.
The beef ban, as the recent murder instigated by a Hindu priest in Dadri has shown, is not
based on Constitutional principles but Hindutva. It is generated by debased communal
sentiment not religion. And this is not new. It predates independent India. But VD "Veer"
Savarkar greatly respected by the Sangh Parivar, had written that beef should be available as
it was a source of cheap protein for the poor. The BJP has brought out a stamp of Savarkar,
but seems to have selectively read his works.
In Kashmir, a Dogra king banned beef decades ago. But now there are demands for beef to be
legalised. Yet, the same BJP has permitted beef in Goa, as the Congress-led front has allowed
beef in Kerala. So this beef ban is not principled but opportunist. It is intended to
communalise Indian society, to garner votes in coming elections, apart from cowing
minorities and secular people.

Constitutionality of the Beef Ban:


In the case of Mohd. Hanif Quareshi v. State of Bihar, 1959 SCR 629 : AIR 1958 SC 731,
which was decided by a 5-judge Constitution bench of the Supreme Court, the challenge was
to three laws banning the slaughter of certain animals, passed by the States of Bihar, Uttar
Pradesh and Madhya Pradesh. In Bihar, the Bihar Preservation and Improvement of Animals
Act, 1956, was introduced which imposed a total ban on the slaughter of all categories of
animals belonging to the species of bovine cattle. In Uttar Pradesh, the Uttar Pradesh
Prevention of Cow Slaughter Act, 1955, was enacted which also imposed a total ban on the

slaughter of cows and her progeny which included bulls, bullocks, heifers and cows. In the
State of Madhya Pradesh, it was the CP and Berar Animal Preservation Act, 1949, which was
amended and applied and it imposed a total ban on the slaughter of cows and female calf of a
cow, while the male calf of a cow, bull, bullock, buffalo (male or female, adult or calf) could
be slaughtered only on obtaining a certificate.
Following three grounds for challenging the constitutional validity of these 3 laws were
discussed in the above judgment:
1. that the total ban offended the religion of the Muslims as the sacrifice of a cow on a
particular day is enjoined or sanctioned by Islam;
2. that such ban offended the fundamental right guaranteed to the kasais (butchers) under
Article 19(1)(g) of the Constitution and was not a reasonable and valid restriction on
their right; and
3. that a total ban was not in the interest of the general public.
The Supreme Court held as under:
1. A total ban on the slaughter of cows of all ages and calves of cows and calves of shebuffaloes, male or female, was quite reasonable and valid and is in consonance with
the directive principles laid down in Article 48;
2. A total ban on the slaughter of she-buffaloes or breeding bulls or working bullocks
(cattle as well as buffaloes) as long as they are capable of being used as milch or
draught cattle was also reasonable and valid;
3. A total ban on slaughter of she-buffaloes, bulls and bullocks (cattle or buffalo) after
they ceased to be capable of yielding milk or of breeding or working as draught
animals could not be supported as reasonable in the interests of the general public,
and was invalid.
The above-mentioned first ground of challenge (i.e., that the total ban offended the religion of
the Muslims as the sacrifice of a cow on a particular day is enjoined or sanctioned by Islam)
was rejected by the Constitution bench of the Supreme Court due to the meagre materials
placed before the Court and the bald allegations and denials made by the parties. It was
noticed that many Muslims do not sacrifice cows on BakrId day. The Supreme Court further
observed as under:
It is part of the known history of India that the Moghul Emperor Babar saw the wisdom of
prohibiting the slaughter of cows as and by way of religious sacrifice and directed his son

Humayun to follow this example. Similarly, Emperors Akbar, Jehangir and Ahmad Shah, it is
said, prohibited cow slaughter. Nawab Hyder Ali of Mysore made cow slaughter an offence
punishable with the cutting of the hands of the offenders. Three of the members of the
Gosamvardhan Enquiry Committee set up by the Uttar Pradesh Government in 1953 were
Muslims and concurred in the unanimous recommendation for total ban on slaughter of
cows. We have, however, no material on the record before us which will enable us to say, in
the face of the foregoing facts, that the sacrifice of a cow on that day is an obligatory overt
act for a Mussalman to exhibit his religious belief and idea. In the premises, it is not possible
for us to uphold this claim of the petitioners.
Moreover, the challenge to the constitutional validity of the said laws on the basis of the right
to equality under Article 14 was also clearly rejected by the Supreme Court. The question
whether the restrictions permissible under clause (6) of Article 19 of the Constitution may
extend to total prohibition [on the contended fundamental right of the butchers to slaughter
animals of their liking or in which they were trading] was treated by Supreme Court as a
vexed question and was left open without expressing any final opinion since the Supreme
Court decided to concentrate on the issue as to whether the restriction was at all reasonable in
the interests of the general public, irrespective of the fact whether it could be held to be
partial or total.
After considering a lot of documentary evidence, the Supreme Court arrived at certain
findings of fact. The court opined that cow progeny ceased to be useful as a draught cattle
after a certain age and they, although useful otherwise, became a burden on the limited fodder
available which, but for the so-called useless animals, would be available for consumption by
milch and draught animals. The Court also noted that the response of the States in setting up
gosadans (protection homes for cows and cow progeny) was very poor. On the basis of these
facts, the Court concluded that in spite of there being a presumption in favour of the validity
of the legislation and respect for the opinion of the legislatures as expressed by the three
impugned laws, they were inclined to hold that a total ban of the nature imposed could not be
supported as reasonable in the interests of the general public.
Firstly, let me point out that there are only 7 States or Union Territories in India (out of a total
of 29 States and 7 UTs), namely, Arunachal Pradesh, Kerala, Meghalaya, Mizoram,
Nagaland, Tripura and Lakshadweep, which have no law banning cow slaughter in one form

or another. All other remaining 29 States and UTs have enacted laws to prevent the slaughter
of cow and its progeny in one form or another.
However, various State laws banning cattle slaughter are not similar and there are many
variations. The laws in Delhi, Gujarat, Madhya Pradesh, Punjab, Rajasthan and Uttar Pradesh
completely ban the slaughter of cow and its progeny, including bulls and bullocks of all ages.
Laws of other States ban slaughter of cow and its progeny in varying degrees. In fact, most of
these State laws prohibit the slaughter of cows of all ages. But, Assam, Tamil Nadu and West
Bengal laws permit the slaughter of cows of over a particular age, as laid down in those laws.
There are varying provisions in these State laws for ban on slaughter of calf, bulls and
bullocks.
What I would like to say is that it is not that cow slaughter is being banned in any State for
the first time. As mentioned above, as many as 29 States or Union Territories (out of a total of
36) already have laws banning slaughter of cow or its progeny. Some of these state laws even
completely ban slaughter of cow and its progeny, for example the Gujarat law. Even in
Maharashtra, there is already a law banning cow slaughter. However, with this new
Amendment in the said law, the scope of the ban on slaughter has been extended and it
appears from media reports that now even the slaughter of bulls and bullocks has also been
completely banned. Therefore, the new law in Maharashtra should be seen in the context of
the laws already existing in other states that ban (completely or subject to certain conditions)
slaughter of cow and/or its progeny.

Conclusion:
Thus, the aforesaid analysis of the provisions of the Constitution and various judgments of
the Supreme Court, unequivocally shows that even a total ban on the slaughter of cow and its
progeny is absolutely constitutional. A total ban on slaughter of cow and its progeny is fully
permissible under the Constitution of India. Moreover, as mentioned above, many States /
UTs in India have already banned cow slaughter either totally or partially; and such ban has
been upheld by the courts. So, Maharashtra is not the first or the only State to ban slaughter
of cow and its progeny.

Thus, there does not appear to be anything illegal or unconstitutional in the Maharashtra
Animal Preservation (Amendment) Bill, 1995, which has been assented to by the President of
India, and which has now become a law of the land for the State of Maharashtra.