Abstract
Cow slaughter and the consumption of beef are highly volatile, emotive and politicised subjects in India. At the heart of the debates on cow slaughter and the consumption of beef in India is the avowed sacredness of the cow in dominant-caste Hindu India. In an apparent paradox, however, ‘bovine’ meat, according to statistics published by the Food and Agricultural Organisation, is the most highly produced and consumed meat product in the country (FAO 2005). Even so, it is the dominant-caste Hindu ethic against cow slaughter that finds legal expression in the prohibitions and restrictions on the slaughter of cows across several states of the country. Whilst the cow is not granted ‘constitutional immunity’ from slaughter (Baxi 1967: 347), cow slaughter is the subject of legal prohibitions and restrictions in several states in India all of which derive from Article 48 of the Constitution. In this paper, I am interested in mapping out the ways in which the juridical discourse on cow slaughter has engaged with the ‘religious’ bases for the prohibitions and restrictions on cow slaughter. In order to do this, I examine and analyse both the Constituent Assembly debates on Article 48, as well as the significant body of Supreme Court case law on the regulation of cow slaughter challenging the constitutional validity of Article 48 on ‘religious’ and ‘other’ grounds. By situating the debates on cow slaughter in the context of debates on secularism, and specifically constitutional secularism in India, I argue that the regulations on cow slaughter proceed on a fundamental constitutive elision of the religious aspects of cow slaughter, which in fact reiterate and legitimise a dominant caste Hindu ethic against cow slaughter.
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Notes
- 1.
Whilst poultry has seen an exponential growth of about 11% in terms of both consumption and production between the years, 1990–2002, it is still beef and buffalo meat taken together that comprise the largest meat product that is both produced and consumed in the country (FAO 2005). Similarly, according to statistics produced by the Indian Department of Animal Husbandry, Dairying and Fisheries, which has compiled figures in relation to meat production from FAO statistics for the years 1981–2004, in 2004, India produced 1,483,000 tonnes of beef and veal. In comparison, India produces 1,715,000 tonnes of poultry (which is the highest meat product taken as a category by itself), and 239,000 tonnes of mutton and lamb. If the figures for bovine meat were to be taken together however, the total tonnage of both would be 2,966,000 tonnes, making it the most produced meat product in the country (see Report of the Department of Animal Husbandry, Dairying and Fisheries 2006: 73).
- 2.
A total ban on cow slaughter is a peculiar expression which usually refers to a ban on the slaughter of a cow of any age, and a ban on the slaughter of bulls, bullocks and calves as well. It sometimes also includes buffaloes. See further in the next section.
- 3.
I use the term ‘dominant-caste Hinduism’ throughout this paper to invoke the complex histories of dalit engagement with Hinduism, cognisant both of the oppressive meanings of Hinduism for dalit communities, as well as the struggles of dalit communities to be a part of a more humane and diverse Hindu community. The debates between Gandhi and Ambedkar on the relationship between caste and Hinduism can be seen as emblematic of this history. See especially Ambedkar (1936a, b, 1948, 2002) for a dalit critique of the relationship between caste and Hinduism. All references to Hindu, Hinduism in the rest of the paper are to be read in terms of a deeply contested terrain of what constitutes Hinduism.
- 4.
The parliament and state legislatures derive their power to legislate under Article 246 of the Constitution of India, read with Schedule 7, which divides subject matters in terms of a union, state and concurrent list. The regulation of cow slaughter is understood to be a state subject-entry 15 of List II to the seventh schedule (which enumerates the state list) reads – ‘Preservation, protection and improvement of stock and prevention of animal diseases; veterinary training and practice’. This is the source of authority of states to legislate on the matter.
- 5.
For an enumeration of the state laws on cow slaughter, see the report of the National Commission on Cattle 2002, available at and last accessed on 23 June 2009.
- 6.
See the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964.
- 7.
The Bill was recently passed by the two Houses of the Karnataka Legislature amidst widespread protests. It is currently (September 2010) pending the approval of the Governor of the State who has sent it to the President for assent. Apart from the category of animal that falls within the purview of prohibition, state enactments also prohibit activity around the slaughter of cows, for instance, prohibiting the export of cattle for the purpose of slaughter (Delhi). Some states even prohibit the sale and purchase of cows for the purpose of slaughter [Madhya Pradesh], as well as the possession of beef that has been slaughtered in contravention of the law [Madhya Pradesh]. The state of Karnataka is the latest to promulgate a total ban. The recent law also prohibits the sale, usage and possession of beef. Contravention of the law incurs imprisonment from 1 to 7 years, with a fine of Rs 25,000–50,000, a draconian law indeed!
- 8.
- 9.
The traditional Hindu right, or the Sangh Parivar of the BJP-RSS-VHP-Bajrang Dal now operates along with several new and breakaway groups. For instance, in Karnataka, groups such as the Sri Ram Sene (which gained notoriety with their brutal moral policing of women in Karnataka over the last year, and which is drawn from the ranks of the Bajrang Dal and the Shiv Sena) along with groups such as the Hindu Yuva Sena in Mangalore, Karnataka Komu Souharda Vedike in Udupi, have been involved in a range of activities which the media and the intelligentsia have in recent times evocatively termed ‘Hindutva Talibanisation’. Some of the concerns that have been central to these groups are culturally divisive issues – religious conversion, cow slaughter and the moral policing of women. (See for instance, Sanjana 2008, 2009). Much has been written about Hindutva, as a violent majoritarian ideology of ‘true, native nationalism’ of the Hindu right, and it is beyond the scope of this paper to reprise these. Suffice it to say that at the heart of Hindutva ‘lies the myth of a continuous 1,000-year struggle of Hindus against Muslims as the structuring principle of Indian history’ (Basu et al. 1993: 2).
- 10.
The story of the mass mobilisation of the symbol of the cow has a longer history, of which the cow protection movements of the late nineteenth century (which came to a head when in 1888 the North-Western Provinces High Court decreed that a cow was not a sacred object) are an integral part, DN Jha (2002: 18–20); also see Sandria B. Freitag (1980). Also see the National Commission on Cattle, 2002, supra n. 5.
- 11.
See Jha (2002). More recently, in the run up to the 2004 general election, the BJP led government sought to introduce a central Bill banning cow slaughter. This Bill was introduced as a result of the report of the National Commission on Cattle in 2002, which suggested a comprehensive ban on the slaughter of the cow and its progeny. One of the more controversial recommendations of the report was that a person who contravened the legal prohibitions on cow slaughter was to be tried under the Prevention of Terrorism Act (POTA), 2002. Although the Bill was not passed owing to a lack of consensus on the issue, and the erstwhile BJP-led government has not been in power in the centre since 2004, the issue of cow protection is by no means a dead one, as attested to by the various laws on cow slaughter that have been passed by BJP led state governments in the last several years, viz., Gujarat, Uttarakhand, Karnataka.
- 12.
- 13.
The literature detailing the ‘causes’ of communal violence, and indeed how one may analyse mass violence is vast and complex, (see especially Baxi 2002, Das 1990) as is the literature accounting for the relationship between communal violence and cow slaughter (Pandey 1983, Freitag 1980, Robb 1986, Yang 1980). An analysis of the relationship between communal violence and the deployment of the symbol of the cow is not within the scope of this paper, as these call for detailed ethnographic contextualising and accounting for events, in the manner of Anupama Roy’s analysis of Sirasgaon (Rao 1999).
- 14.
The amendment read as follows: ‘38-A. The State shall endeavour to organise agriculture and animal husbandry modern and scientific lines and shall in particular take steps for preserving and improving the breeds of cattle and prohibit the slaughter of cow and other useful cattle specially milch and draught cattle and their young stocks.’ Two of the key players in the inclusion of this article in the Constitution were Pandit Thakur Das Bhargava, member from East Punjab and Seth Govind Das, member from CP and Berar. See the Constituent Assembly Debates (Proceedings) – Vol. VII, Wednesday, the 24th November 1948, available at parliamentofindia.nic.in/ls/debates/debates.htm last accessed 23 June 2009. All quotations and references to the Constituent Assembly debates are drawn from the debates on this day, unless stated otherwise.
- 15.
This unique constitutional protection would have meant that the protection of the cow would have been treated on par with other human fundamental rights such as right to life, right to equality, etc. This would have given new meaning to ecological concerns about discrimination on the basis of species. Of course, given that the laws in India do protect the cow, it seems that in effect, the protection of the cow does indeed supersede human rights, as I have argued with regard to the fall outs of the food hierarchy in relation to dalit communities (Chigateri 2008).
- 16.
See Pandit Thakur Das Bhargava’s statement to the Constituent Assembly, supra n. 12.
- 17.
He notes, ‘the Hindu lobby, which had the informal patronage of the President, Dr Rajendra Prasad, had wanted a general ban, and Nehru none of it. As early as 1923, when he was the Mayor of Allahabad, he had persuaded the municipal Board to reject a proposal to prohibit cow slaughter’ (Madan 1993: 687).
- 18.
Seth Govind Das mooted an amendment to Pandit Thakurdas Bhargava’s amendment on the following lines: ‘That in amendment No. 1002 of the list of Amendments in article 38-A the words and other useful cattle, specially milch cattle and of child bearing age, young stocks and draught cattle’ be deleted and the following be added at the end: ‘The word “cow” includes bulls, bullocks, young stock of genus cow’. See the Constituent Assembly Debates, supra n. 13 – this amendment was not passed by the Assembly.
- 19.
See statement by Seth Govind Das, supra n. 12.
- 20.
Ronojoy Sen in his paper on the Indian Constitution and secularism traces the history of the essential practices doctrine within the discourse of the Supreme Court. He explains, ‘Courts are frequently asked to decide what constitutes “an essential part of religion”, and therefore off-limits for state intervention or what is “extraneous or unessential” and therefore an area in which it is permissible for the state to interfere’ (2007: 9). Sen elaborates amongst other things that as the doctrine played out, the Court appointed itself the gatekeeper of what qualified as religious practice and doctrine, it ‘rationalised’ and ‘marginalised’ practices that did not meet the Court’s test, and it deemed as superstitious or irrational certain religious practices (Sen 2007, also see Sen 2010). For further elaborations on this doctrine, see Baxi (2007b) and Cossman and Kapur (1999).
- 21.
Whether this is reflective of a pragmatic concession as Prof Baxi suggests, or as reflective of possibly a misguided investment in secular values is open to further investigation.
- 22.
Though on this issue, it must be reiterated that Syed Sa’adulla sought to complicate both Hindu sentiment as well as the Muslim relationship to the cow.
- 23.
1958 AIR 731, available online at http://www.commonlii.org/in/cases/INSC/1958/46.html Pandit Thakur Das Bhargava, who was an architect of Art 48, was permitted to appear as amicus curiae.
- 24.
Specifically, the impugned statutes laid down, in the case of Bihar, a total ban on the slaughter of all bovine cattle; in the case of UP, a total ban on the slaughter of ‘cows’, which included bulls, bullocks, heifers and calves – but not buffaloes; and in the case of MP, a total ban on the slaughter of cows and female calves, while the male calf, bulls, bullocks, buffalo (male or female, adult or calf) could be slaughtered by obtaining a certificate. Each of the statutes minimally protected the cow and female calf from slaughter; whilst the Bihar legislation extended this ban to all bovine cattle, UP extended the ban to the cow and her progeny but not buffaloes, and MP allowed for the slaughter of all other bovine cattle upon obtaining a certificate.
- 25.
Supra, n. 22.
- 26.
Ibid.
- 27.
Ibid.
- 28.
Ibid.
- 29.
In upholding a total ban on the cow, the argument made was that since the buffalo has a higher yield of milk, it was the cow that was in more need of the protection of the law. The presumption behind the justice’s argument ironically was that buffaloes would not be slaughtered because they were more useful, whereas the cow because it was not as useful as the buffalo required protection – thereby compulsorily enjoining all agriculturalists to the usefulness of the cow.
- 30.
Apart from the cases that involved the constitutionality of bans on cow slaughter, there were also a series of cases in the 1960s and 1970s that sought Supreme Court intervention on questions of whether or not appeals to votes and speeches made to voters in the name of cow slaughter violated the sections of the Representation of the People Act 1951. See for instance – Narbada Prasad v Chhagan Lal & Ors [1968] INSC 166; Maubhai, Nandlal Amersey v Popatial Manilal Joshi & Ors [1969] INSC 2; Kanti Prasad Jayshanker Yagnik v Purshottamdas Ranchhoddas Patel & Ors [1969] INSC 13; Virendra Kumar Saklecha v Jagjiwan & Ors [1972] INSC 91. These cases are part of a larger group of cases, which culminated in the decisions of the Supreme Court in what have been termed the Hindutva judgements (see Cossman and Kapur 1999, Sen 2007, Baxi 2007b). Whilst these judgements have made a lasting impact on the nature of Indian secularism, a detailed engagement with these cases is outside the purview of this paper. However, it is important to note that in his analysis of constitutional secularism, Baxi (2007b) distinguishes between two forms of secularism: rights oriented secularism and governance oriented secularism, and according to this distinction the cases related to the Representation of People Act falls within governance oriented secularism and the ‘rights’ claims that the body of the paper deals with under rights oriented secularism.
- 31.
The judgement in State of W.B v Ashutosh Lahiri [1994] INSC 587 is a case in point. In this case, the petitioners challenged the validity of the exemption from slaughter of cows on religious grounds on the day of Bakr Id. In this case, the West Bengal government had, it was contended, wrongly exempted the slaughter of healthy cows on the occasion of Bakr Id from the laws against cow slaughter on the ground that such exemption was required to be given for the religious purpose of the Muslim community. The Supreme Court, speaking through Majumdar, J. on behalf of a three judge bench, reiterated the decision of the larger bench in the case of Hanif Quareshi (above) with the reasoning that cow sacrifice was indeed not an obligatory practice on the Muslim religion.
- 32.
For instance, in the case of Municipal Corporation of the City of Ahmedabad & Ors. v Jan Mohammed Usmanbhai & Anr 1986 [INSC] 85 the reasonableness of two standing orders that directed slaughter houses to remain closed on seven days (the ‘birthdays’ of important Hindu figures) was upheld on the grounds of ‘public’ interest. RB Misra, J, speaking for the court reasoned that, ‘Rama and Krishna are the beloved of the Hindu Pantheon and are worshipped by large sections of the people. [...] Their birthdays are generally observed by the people not merely as days of festivity but also as days of abstinence from meat. One cannot, therefore, complain that these days are ill chosen as holidays. […]’. This case is illustrative of two things – the Hindu basis of the bans, and a conflation of Hindu interest with public interest without an interrogation of what this means for Muslim and other minority communities. There are other decisions of the court that also receive similar treatment. See Haji Usmanbhai Hasanbhai Qureshi & Ors v State of Gujarat [1986] INSC 84.
- 33.
[1996] INSC 716.
- 34.
Ibid.
- 35.
2005 8 SCC 534.
- 36.
The policies that the court referred to are to be found in Articles 48A and 51A which were inserted into the Constitution through the 42nd Amendment in 1976. Article 48A reads, ‘The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country’. The relevant portion of Article 51A reads, ‘It shall be the duty of every citizen of India (g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.
- 37.
Supra, n. 36 I have written elsewhere on how the links between the ethic of non-violence towards animals (evoked here in terms of compassion towards animals) and the superiority of the vegetarian ethic have been powerfully contested by dalit communities (see Chigateri 2008).
- 38.
The court did not subject the buffalo and her progeny to the same level of scrutiny. On the question of the difference between the buffalo and the cow, in Haji Usmanbhai supra n. 31, it was held that there was a valid distinction (in relation to the right to equality) between butchers who dealt with buffaloes and those who dealt with cow progeny, as bulls and bullocks were used as draught power, whereas, male buffaloes were not. This argument unravels, however, if the ‘usefulness’ of cow progeny no longer provides the basis upon which slaughter is prohibited. As Kancha Ilaiah asked in his inimitable several years ago – was the buffalo not worthy of worship?
- 39.
This is in spite of FAO and DAHD figures to the contrary – see supra, n. 1.
- 40.
That the issue to cow slaughter has been harnessed for a politics of difference based on religious lines is evident from the Gujarati case. For instance, after this judgement, the Gujarat government set about giving effect to this ban by proposing mobile laboratories equipped with instruments that will detect ‘on the spot’ whether the meat being transported or sold is of ‘cow progeny’, Gujarat State News (22 Aug. 2006).
- 41.
MANU/SC/1795/2006.
- 42.
For some of the landmark texts on secularism in India, see Smith (1963), Galanter (1971), Madan (1987, 1993, 2006), Nandy (1997, 2002, 2007), Bhargava (1997), Needham and Rajan (2007), Cossman and Kapur (1999). Also see Nigam (2006) for an interesting elucidation of the Indian debates on secularism.
- 43.
Prof Upendra Baxi, in his several pieces on constitutional secularism in India has chastised the interlocutors to the debates on secularism for their repeated neglect of this discourse. He writes, ‘Constitutional secularism is a singularly absent category in the landscape of Indian social theory. The canonical texts have little or no use for the categories and structures of constitutional adjudicative interpretation. Reading secularism is either archaeology of ambivalence in Nehruvian patrimony (Madan; but see Bilgrami), or an aspect of totalizing critique that demonizes secularism as an integral element of the arsenal of the technology of the modernizing Indian state (Nandy). These luminous minds remain unmarked by any serious concern with constitutional interpretive labors and the social costs of their critique of secularism’ (2007a: 291). For a detailed analysis of constitutional secularism, see Baxi (1999: 211–233, 2007a, b), Sen (2007, 2010), Dhavan (1987) and Cossman and Kapur (1999).
- 44.
The celebrated cases of Keshavananda Bharati, Indira Nehru Gandhi v Raj Narrain and the 1994 Bommai decision are understood to have cemented secularism into the legal fabric of the country.
- 45.
They argue that this third principle is what makes Indian secularism different from Western liberal democratic model, which insists on neutrality marked by non-intervention, rather than an intervention which ensures equal treatment (Cossman and Kapur 1999: 60).
- 46.
The reformist character of state- religion relationship is based on Art 25 of the Constitution which declares that the state shall have the power to regulate any “economic, financial or other secular activity” associated with religious practice [Art 25 (2) (a) of the Constitution] and that the state shall have the power through the law to provide for ‘special welfare and reform or the throwing open of Hindu religious institutions of public character to all classes and sections of Hindus’ (Article 25 (2) (b) of the Constitution). Furthermore, Article 17 of the Constitution also outlaws the practice of untouchability.
- 47.
Sen (2010: 87).
- 48.
For a discussion of the problematic intervention of the Central govt. post Shah Bano, see Baxi (2007a), who along with four others has challenged the constitutionality of the Muslim Women’s Act.
- 49.
Baxi elaborates, ‘manifestly, what the redefiners [moderate BJP or Hindu voices] of secularism are directing their energies is on what they perceive as unequal exercise of power of the state “providing for social welfare and reform” of religious practices. The gravamen of their “critique” is that while the state, supported by “pseudo-secularists,” has energetically used this power over, and against “Hinduism” it has not deployed this power in relation to Indian Islam, especially in relation to personal law reform’ (1999: 223). In relation to this, see Aditya Nigam, on the crisis that the Mandal agitation as well as the growth of dalit politics in India has wrought on the nature of secularism in India.
- 50.
See footnote 44.
- 51.
See especially Cossman and Kapur’s criticism of the Hindutva judgements. Also see Sen (2007).
- 52.
Drawing on Professor P. K. Tripathi’s arguments on secularism as a ‘product of India’s own social experience and genius, Upendra Baxi terms the nature of constitutional secularism its sui generis nature’ (1999: 220–221). To me, this analysis means that Indian constitutional secularism is a distinct phenomenon; however, the question is whether there are any normative principles that distinguish discourses of Indian constitutional secularism.
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Chigateri, S. (2011). Negotiating the ‘Sacred’ Cow: Cow Slaughter and the Regulation of Difference in India. In: Mookherjee, M. (eds) Democracy, Religious Pluralism and the Liberal Dilemma of Accommodation. Studies in Global Justice, vol 7. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9017-1_8
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