The Holy Cow and the Constitution – Legal Notes by Arvind Datar

 

Arvind Datar, Column, Bar & Bench

April 17, 2017 

 

"Bar & Bench, The new face of legal journalism in India" / The author is a Senior Advocate practicing in the Supreme Court.

 

 

Recently, Gujarat amended its Gujarat Animal Preservation Act, 1954 to prescribe life imprisonment for those found guilty of slaughtering cows, calves, bulls and bullocks.

 

Interestingly, during the Constituent Assembly Debates, Pandit Thakur Dass Bhargava cited Mahatma Gandhi, in whose opinion, cow slaughter and manslaughter were two sides of the same coin (CAD November 24, 1948). Indeed, the amendment brought forth by the Gujarat government is a true reflection of Mr. Gandhi’s opinion in letters.

 

In fact, there are many states in India which have banned cow slaughter, either partially or in total, with strict penal consequences attached to it. This is done by resorting to Article 48, which is a Directive Principle of State Policy.

 

However, without mixing religion and politics, and especially when there is no special ecclesiastical jurisdiction for the Supreme Court, it is imperative to study the constitutionality of a total ban on cow slaughter, if at all envisaged under Article 48, and its effect on citizens’ rights under Part III of the Constitution.

 

The clamour for banning cow slaughter is increasing as it is a politically attractive position. However, the extent to which the total prohibition on any kind of cow slaughter requires careful examination of the relevant constitutional provisions.

 

Recently, the Bombay High Court judgment upheld amendments to the Maharashtra Animal Preservation Act, 1976 to strike down sections 5D and 9B of the Act. Both these sections were struck down. They read as follows:

 

5D. No person shall have in his possession flesh of any cow, bull or bullock slaughtered outside the State of Maharashtra.

 

9B. In any trial for an offence punishable under sections 9 or 9A for contravention of the provisions of this Act, the burden of proving that the slaughter, transport, export outside the State, sale, purchase of possession of flesh of cow, bull or bullock was not in contravention of the provisions of the Act shall be on the accused.

 

The appeals against this judgment are pending in the Supreme Court.

 

Applicable Constitutional Provisions

 

The imposition of ban on cow slaughter is based on Article 48 of the Constitution of India which reads as follows:

 

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