Illegal and senseless

The proposed total ban on cattle slaughter goes against Supreme Court decisions on the matter since 1959

Written by ARVIND P. DATAR | Published:May 31, 2017 12:05 am
In 2005, a bench of seven judges upheld the total ban on slaughter of cow and cow-progeny and made a valiant but regrettable attempt to justify the ban on aged cattle, observing that cattle never became “useless”, at the most, they became “less useful”. (Representational)

Less than a week ago, the Central government notified rules, many of which are as unconstitutional as they are senseless: A person is prohibited from bringing any type of cattle to an animal market for sale for slaughter. First, why is it unconstitutional? The ban on slaughter of cattle was a politically sensitive issue even before the Constitution came into force in 1950. In the Constituent Assembly, a few members supported a total ban but Rev. Nichols Roy made a cogent argument opposing the move, pointing out the economic consequences of maintaining old and sickly cattle, and that a large number of people consumed beef.

In the end, a partial ban was included as part of the Directive Principles (which represent our constitutional goals) and Article 48 now reads: “The state shall endeavour to organise agricultural 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.”

Like prohibition, our political history is littered with repeated attempts to totally ban the slaughter of cattle. The validity of such an attempt was first considered in detail in 1959 in the famous Mohammed Hanif Quareshi case. After a detailed discussion on the economic merits and demerits of a total ban, the Supreme Court held that the ban on slaughter of all cows, and calves of cows and calves of buffaloes, male and female, was constitutionally valid but a total prohibition on the slaughter of she-buffaloes, breeding bulls and working buffaloes, irrespective of their age or usefulness, was unconstitutional. Such a ban violated the fundamental right to carry on business of about 2,00,000 butchers in Bihar alone. These persons were mostly Muslims and belonged to the Qureshi community. Significantly, the Supreme Court noted that large sections of Muslims, Christians and Scheduled Castes and Scheduled Tribes consumed beef. It also noted that the practice of creating camps to house old and useless cattle, called “gosadans”, was “not at all encouraging”.

Bihar and Uttar Pradesh did not give up. They amended their laws and permitted slaughter of cattle only after they were more than 20 years old. The laws introduced a host of complex regulatory restrictions which included an appeal to the District Animal Husbandry Officer. The butcher community again successfully moved the Supreme Court which referred to the “almost unanimous opinion of experts that after the age of 15, bulls, bullocks and buffaloes are no longer useful for breeding, draught and other purposes and whatever little use they may have then is greatly offset by the economic disadvantage of feeding and maintaining unserviceable cattle”.

After this decision in 1961, the next attempt at a total ban before the Supreme Court was also unsuccessful in 1969. Almost 30 years later, in 1996, another attempt by the Madhya Pradesh government to absolutely ban the slaughter of all bulls and bullocks was again held to be violative of the fundamental right of butchers to carry on their business under Article 19(1)(g). The Supreme Court held that it was “pained” at the successive attempts of the state of Madhya Pradesh to nullify Supreme Court decisions.

In 2005, a bench of seven judges upheld the total ban on slaughter of cow and cow-progeny and made a valiant but regrettable attempt to justify the ban on aged cattle, observing that cattle never became “useless”, at the most, they became “less useful”. The court pointed out that such cattle still gave dung and urine, which had wide-ranging utility from biogas to medicinal formulations. Whatever the merits of these arguments, the Supreme Court mercifully confined its judgment to upholding the total ban only to “cow and cow-progeny”.

The net result is that a total ban on all types of cattle in the latest notification is likely to be held as unconstitutional. It is difficult to comprehend how anyone could have drafted such a notification imposing a total ban in the teeth of a line of Supreme Court decisions from 1959. Or is it another attempt to draft a patently unconstitutional but politically convenient law and leave it to the courts to strike it down? One can always say: “See, we passed the law but these courts always come in our way”.

And why is it senseless? First, there is no justification, economic or other, for this total ban. What are the commercial consequences of such a ban? How would it impact the livelihood of lakhs of butchers? What would be the impact on our huge beef exports? What would it do to the leather trade? Such a drastic decision should have at least required a detailed investigation into the possible impact on all the stakeholders.

Secondly, the nation continues to face serious crises on several fronts. There is a risk of Kashmir slipping into greater turmoil, relations with Pakistan seem to worsen every day and the Maoist problem stubbornly refuses to go away. On the economic front, the lack of growth in the manufacturing sector, the slowing of exports and the absence of employment generation are extremely worrisome. It is only a united India that can collectively rise and meet these challenges.

Unfortunately, there continues to be a serious disconnect between what we claim we want to be and what we actually do. A nation that wants to be an economic superpower can never achieve its ambition if it continues to indulge in irrelevant and irresponsible actions that systematically irritate a sizeable section of its population. The repeated attempts to ban cow slaughter and reiterate the demands for a Ram Mandir will seriously undermine the country’s political unity. A minority which cannot triumph through the ballot box will, beyond a point, vent its anger through violent and other deadly means. The danger is, we cannot predict when this tipping point will be reached.

The utter folly of such short-sighted means was subtly emphasised by Justice J.C. Shah in 1969, in words that must be carefully read: “The sentiments of a section of the people may be hurt by permitting slaughter of bulls and bullocks in premises maintained by the local authority. But a prohibition imposed on the exercise of a fundamental right to carry on an occupation, trade or business will not be regarded as reasonable, if it is imposed not in the interest of the general public, but merely to respect the susceptibilities and sentiments of a section of the people.”

The writer is a senior advocate practising at the Supreme Court of India

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  1. H
    Hanumesh HN
    Jun 6, 2017 at 5:45 pm
    hello sir No doubt existence Political agenda in rules 2017 but its not banning slaughtering cattle's but preventing sel from animal market for slaughter houses and absolutely its the major key step to ban and govt taking defense of Supreme court judgement Gauri Maulekhi v Union of India and ors , In this case Apex court ordered to frame guidelines against illegal cattle trading outside India and also rules initially creates problem ,in future slaughtering houses can buy cattle's directly from the farmers from farms . please p your view on this , Thank you
    Reply
    1. R
      R K
      Jun 1, 2017 at 4:02 pm
      ARVIND P DATAR....u r a bl00dy liar... spite of knowing that the govt. has not imposed any new ban on slaughter of animals and it is related to only their ....u r writing a cr@p articla like this....u are dishonest and fraud person....shame on u....
      Reply
      1. R
        R K
        Jun 1, 2017 at 3:23 pm
        Another posing as a columnist...when the court ru supports his thinking....then it is a great ru ....but when a seven judge bench ru is against his wretched thinking....the decision is regrettable.....IE....no amount of such foolhardy and article are going to help in your agenda of opposing bjp for the sake of opposing...
        Reply
        1. V
          vasu
          Jun 1, 2017 at 8:37 am
          One day after this great advocate wrote this article, the Kerala HC has observed that the Government rules does not ban cattle slaughter, as emphasized by Mr Datar in his article. Will these people not read the Rules properly, before spitting venom on the Government and imputing anti-muslim motive ??
          Reply
          1. S
            Sanjubhai
            Jun 1, 2017 at 7:11 am
            Who is this s-tupid Red. Nichols Roy.
            Reply
            1. B
              Bhola
              Jun 1, 2017 at 6:56 am
              How can a learned man act like a illiterate. This gentleman is speaking just like any other anti India and anti Hindu person.How can express continuously publish such substandard material.
              Reply
              1. A
                ak dev
                Jun 1, 2017 at 1:57 am
                Opposition is loosing the credibility because they play politics using lies. See this author has distorted the notification by call it a total ban when actually the notification is about regulating the of cattle from farmers market for slaughtering purpose. Kerala HC has rightly explained. Opposition repeatedly indulge in lying. People know it. Opposition surely needs a bigger kick from people.
                Reply
                1. P
                  Patriotic Indian
                  May 31, 2017 at 11:14 pm
                  For your kind information rule is not about banning slaughter it is about sel cattle for purpose of slaughter to be sold at market place. Please do not misguide the people with wrong information.
                  Reply
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