The fine print in the beef ban judgement8 min read . Updated: 10 May 2016, 07:54 AM IST
The possession of beef brought from outside Maharashtra is not a crime anymore. What else has changed?
The possession of beef brought from outside Maharashtra is not a crime anymore. What else has changed?
The Bombay high court has upheld the constitutional validity of Maharashtra’s prohibition of the slaughter of cows, bulls and bullocks, the trade of the animals outside the state for slaughter, and their sale or purchase for slaughter.
The high court has also upheld the prohibition on the possession of the meat of cows, bulls or bullocks from Maharashtra, but has held that such possession has to be “conscious possession" (slightly tougher for the police to prove than simple possession).
The high court held that a mental element was a part of conscious possession—interpreting the provision otherwise would give rise to the possibility of innocents being convicted under the provision.
Perusing data submitted by the state to justify the ban, the high court held that the “legislature was the best judge of what is good for the community" and that prohibiting the slaughter of cows, bulls and bullocks was in the public interest for economy- and agriculture-related reasons.
And, following the judgements of the Supreme Court that the sacrifice of cows or its progeny were not an essential part of the Muslim religion, the high court also rejected arguments based on the fundamental right to practice religion.
What has the court changed?
The high court has struck down the provision that made the possession of the flesh of cows, bulls or bullocks slaughtered outside of Maharashtra a criminal offence.
It held that the consumption of food not injurious to health is a part of an individual’s autonomy and hence the provision infringes on individuals’ right to privacy. The high court did not accept the state’s contention that there were questions over the right to privacy as a fundamental right under the Constitution of India because of reference of the issue to a constitution bench of the Supreme Court in the Aadhaar case.
Further, the high court has also struck down Section 9B, which had put the burden on the accused to try and prove, in his or her trial under the Act, that the slaughter, transport, or export outside Maharashtra, sale, purchase or possession of the flesh of a cow, bull or bullock was not in contravention of the provisions of the Act.
The high court held the provision to be violative of Article 21 of the Constitution, as it put a negative burden of proof on the accused and hence was not fair, just and reasonable.
Why was beef banned in the first place?
Though the ban is generally associated with religion (and politics), legally speaking, a ban on cow slaughter is linked to the constitutional goal of preserving cattle for agricultural purposes.
Opposition to cow slaughter grew during the later period of British rule, supported by leaders such as Mahatma Gandhi. After independence, while drafting the Constitution of India, certain Constituent Assembly members advocated a ban on cow slaughter as part of the fundamental rights.
However, the majority prevailed, and “prohibition of slaughter of cow and other useful cattle" was only adopted under Article 48 as a part of Directive Principle of State Policy in the Constitution, which act as guidelines to the state.
Interestingly an amendment to include “bulls, bullocks, young stock of genus cow" within the “slaughter of cow" prohibition above was dropped.
The principle was adopted with a view to serve Indian society, which was largely agrarian at that point and depended on livestock, though disagreements over its intent abounded. The country was in short supply of milch cattle, breeding bulls and working bullocks, and a total ban on the slaughter of these was thought to be essential to the national economy for the supply of milk, agricultural working power and manure and this background for the law was affirmed by the Supreme Court in a later judgement in 1958.
In 1955, a move to incorporate the principle into a central law failed in Lok Sabha after prime minister Jawaharlal Nehru threatened to resign if the bill was passed; however, the issue became irrelevant because most of the Congress-led states slowly rolled out a ban on cow slaughter, one by one. Parliament has since then witnessed several private member bills for a pan-India ban, but as opined by experts including former attorney general M.C. Setalvad, a Parliament-made law would be invalid as the Constitution vests the power to legislate in this field with the state legislatures.
Give it to me straight—beef in India, is it generally legal or illegal?
Most Indian states, except for some states such as Kerala and the north-eastern states, have now banned cow slaughter. But the exact letter of the regulations and severity of the restrictions vary from state to state.
While several states have a complete ban on the slaughter of cows and its close relatives, some allow the slaughter of aged cattle, while others allow the slaughter after a certificate is granted.
Several states have also banned the export of cows from their state to other states for slaughter though India is ironically one of the world’s largest exporters of beef.
However, buffalo meat, which forms a major part of the actual meat consumption in India, is legal in several states.
Wait, what’s the difference between these? Isn’t beef, beef? Aren’t they all bovines and bulls?
Yes, the descriptor beef usually includes the meat from any bovine (technically from the biological sub-family Bovinae, which includes cattle or cows, buffalo and even yak).
As part of the sub-family Bovinae, cows are part of the biological genus of Bos. The standard cow, also known as domestic cattle, is the species Bos taurus, with the Indian zebu being Bos taurus indicus. Bulls and bullocks are respectively male uncastrated and castrated cattle.
The water buffalo (the species Bubalus bubalis), comes from a different biological genus (‘race’) from cows, namely Bubalus (animals from a different genus usually cannot interbreed).
Under Hindu beliefs, cows are considered to be holy and are worshipped. Cows and female buffaloes give milk, while bulls and bullocks are used in fields by farmers and for running carts in rural India.
When did cow slaughter become illegal in Maharashtra?
In 1948, the erstwhile Bombay state passed the Bombay Animal Preservation Act, which banned the slaughter of all animals unless done with a certificate declaring them fit for slaughter.
This was replaced with the Maharashtra Animal Preservation Act, 1976, (MAPA) notified in 1978. MAPA made cow slaughter illegal, but allowed the slaughter of certain animals placed in its schedule, including bulls and bullocks, after getting a certificate from the authorities (based largely on whether the animal still has ‘economic viability’).
If cow slaughter was already banned, what changed last year that it created such an uproar?
Section 5 of the pre-amendment law banned cow slaughter, but Section 6 allowed the slaughter of certain animals mentioned in its schedule including “bulls, bullocks, female buffaloes and buffalo calves" on the grant of a certificate under the Act.
When the Bharatiya Janata Party (BJP)-Shiv Sena alliance was in power in 1995, an amendment to MAPA was passed by the legislature to grant bulls and bullocks the same protection as was available to cows by placing them in Section 5 along with cows. The amendment bill was sent for presidential assent, but in 1999, it was sent back by the President with some queries, which were never answered by the Congress-Nationalist Congress Party (NCP) government.
After the BJP-Sena came to power again, clarifications were replied to and presidential assent was again sought. This was received on 26 February of last year and came into force in the first week of March 2015.
Interestingly, the Congress in the opposition also welcomed the assent to this two-decade-old law.
So, what did the law change?
The beef from cows was banned long ago. But the slaughter of Maharashtrian bulls and bullocks was banned by the new law (and continues to be banned, despite the Bombay high court judgement).
What has remained legal in any case, however, is meat from the water buffalo.
Mumbai restaurants had mostly been serving buffalo meat locally known as ‘carabeef’, but even that was out of menu after news of the ‘beef ban’ appeared. Restaurateurs said that they awaited clarification as to which beef had been banned and which could still be served. This perhaps had been done in the wake of a few incidents of certain Hindu right-wing groups bullying beef traders after the amendment.
But why ban meat? Unlike the cow progeny, chickens and goats are not used for agriculture but raised for their meat.
Interestingly, there are no laws behind the meat ban during the Jain festival of Paryushan, but circulars/orders are issued by the state governments and resolutions are passed by the respective municipal bodies, on requests by the Jain community.
As far as the meat ban in Mumbai in concerned, the first known ban after independence was imposed by the Brihanmumbai Municipal Corporation in 1964 for two days, which was later supplemented by two more days by the Congress-NCP government in 2004.
A large number of people involved in beef and leather business say they will lose money and their jobs. Is it not against their fundamental right to business and occupation?
Not according to the Bombay high court.
The main reason is that the fundamental right to profession, occupation and business is not absolute and can be regulated/restricted by the state.
In 2005, in the State of Gujarat vs Mirzapur Moti Kureshi Kassab Jamat case, a seven-judge Supreme Court constitution bench heard a challenge of a complete ban of the slaughter of cow progeny in Gujarat.
In a majority 6-1 ruling, the court held that such a ban is not a prohibition but only a restriction, because the slaughter of certain other animals is still legal and hence there is no infringement of a fundamental right to occupation, trade or business. The court had observed that the protection of cow progeny was “needed in the interest of the nation’s economy".
Why didn’t this law come in the way of freedom of religion of certain sections of the society?
The pre-amendment version of this law had already passed the test of religious freedom. MAPA was challenged before the Bombay high court, claiming that the ban on cow slaughter interfered with the obligation of cow slaughter on the Muslim festival of Bakrid.
However, reiterating the legal position already held by the Supreme Court in earlier cases and observing that there was absence of any such obligation in the text of the Quran, the court refused to accept the challenge and upheld the law.
A subsequent petition for appeal before the Supreme Court was also dismissed.
Mohit Singh is an advocate at the Supreme Court of India.
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