If we have bans on cow slaughter, why not laws against lynching by 'gau rakshaks'?

The law should be consistent.

 |  14-minute read |   17-06-2017
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Not exclusively, but the holy cow seems to dominate the political discourse in India. "Gau rakshaks" are the new "terror" and suddenly selling buffaloes or cows even for non-slaughter purposes needs to be "brought under a regime" across India. At least that's what the Centre told the Supreme Court when questioned about the new notification on cattle trade.

The highly-controversial notification prohibits the sale of cattle in open market unless one possesses a licence granted by a local body. The notification is under challenge at the Supreme Court. The judiciary is also not left untouched by the cow discourse. The now infamous "peacock judge", Justice Sharma said the cow should be made the national animal as it is "as holy as the peacock".

He said that peacock is holy because it impregnates peahen with tears. On his last day, Justice Sharma successfully sparked off a much-needed debate on the reproduction process of the national bird. But it looks like the holy cow also brings out oft-heard politically incorrect mindsets to light. It has also become a tool for politics.

You can praise the cow and be a "nationalist". You can debate cow slaughter and be called "anti-national". You can "protect" cows without any legal sanction and beat up people and be called "gau rakshak". You can even be a "cow" if you wish to be the most-desired "bahu"! We must not forget that the "Sanskaari Bahu" is idolised as the "gau" — one who is as gentle and innocent as the cow.

Not the wild "nilgai" which were a menace to the crops in Bihar and were subsequently ordered to be killed, but the ordinary cow on the streets, seen hunting for food or consuming polythene are cases in point. These sentiments were rightly echoed when the former Bihar chief minister Rabri Devi said that she wants a daughter-in-law who isn't interested in watching movies or shopping malls.

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But in the madness of the mainstream political discourse, a crucial fact has gone missing. The cow is a protected animal in this country; at least legally. The slaughter of cows is illegal in most states except Kerala and the seven northeastern states.

The Constitution of India even lays down the directive principle (Article 48), which reads: “The State shall endeavour to organise agriculture 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.”

Directive principles are moral guidelines for a state and not enforceable rights or duties of its citizens. If one traces the Constituent Assembly debates to understand the tone and tenor of this principle, both religious and rational arguments would be found. The religious arguments hinge on the Hindu tradition of protecting and preserving cows and worshipping it like a mother.

The rational argument has been to enhance the production of dairy products to boost the overall national health. There have been voices seeking a uniform national law banning cow slaughter, but the only committee set up by Indira Gandhi in this direction was dissolved without submitting any report.

Law minister Ravi Shankar Prasad, speaking at a press conference, recently said that the government is not trying to control the food habits of people; yet, one must not forget that cow is revered by many in this country.

He further said that there is a need to strike a balance between the right to make food choices and the preservation of cows. These statements and the reassertion by the law minister that preservation of cows is a directive principle obscures the reality on two counts. First, it gives a feeling as if the current laws do not preserve cows and, secondly, it also breeds on the vague sentiment that the religious concerns of the majority community have been ignored by the state. Factually, both of these are not true.

If one closely looks at the evolution of laws against cow slaughter in the states, most BJP-ruled states have made the punishment more stringent in the last 10 years. State governments of Haryana and Rajasthan have raised the quantum of punishment to up to 10 years. Gujarat has become the only state with a life sentence after the recent amendment. It has further imposed restrictions on the transportation and sale of cattle.

Looking at it from a purely legal perspective and tracing its origins in the Constituent Assembly debates, the law on cows and its progeny exists for deeply religious reasons. The economics of it, dairy production etc — has only brought subsequent rationalisation of these laws. 

For example, the slaughter in West Bengal is allowed if the animal ceases to be economically viable. Most states adopt a mix of religious and economic approach in dealing with the issue of cow slaughter. Broadly most states permit the slaughter after ten or fifteen years of age or if the cow or its progeny has become economically unviable.

Interestingly even in the Muslim majority state of Jammu and Kashmir, the punishment for cow slaughter is up to 10 years. Hence it’s factually incorrect to say that current laws do not protect the cow. They do so quite stringently. But one can also ask a purely legal and objective question.

Why should states have special protection for cows? If economics reasons are ones to be used in defence then why should the offence be punishable by life or by ten years? Is this sentence proportionate to the objective sought? Is it legally sound? The element of religion is undeniable in laws pertaining to cows and cattle in India.

We must remember that one of the basic tenets of the Indian constitution is that we don’t have a state religion. The laws pertaining to cow slaughter are not even protected under Article 25 as personal laws — they are not civil matters of religion or faith. The existing laws form the part of the Criminal Procedure. The minority in the country can question as to what extent should the law protect majority religious beliefs through the criminal procedure code?

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The question is not social but legal. Majority and minority communities in a country must have mutual respect for one another’s faiths and beliefs. But to what extent can the state criminalise actions through legislations to protect a majority or minority religion? Should we rethink the concept of so-called appeasement of minorities and also look at various tenets of law that have been affected by majoritarian beliefs?

When the Constitution, in its directive principles, talks about preservation of cows — is greater criminalisation the way which was envisioned by the founders of the Constitution? Or perhaps was it done with the idea of attaining a just, equitable, healthy and vibrant country where traditional wisdom would enrich our efforts to attain the goals of prosperity?

The latest political discourse around the cow and the way increasing instances of lynching by "gau rakshaks" are defended often make us feel as if the law has ignored the sentiments of the majority community in this country. Such implied messages are little more than fraud and lies. When the UP CM talks about shutting illegal slaughter houses, it must be done and the law must prevail.

But the administration must ensure that the law is implemented by the state and not "gau rakshaks". The critical question is: if there can be special laws and acts to deal with cow slaughter, why shouldn’t the Centre and states mull to bring about special legislations against instances of lynching or against the so-called "gau rakshaks"?

After all, the interest of the cow is also at stake — and that is protected under the existing laws. The law should be consistent: if for nothing else, then for the sake of the holy cow.

Here's brief data on the laws on cow slaughter across India in different states:

Jammu & Kashmir The voluntary slaughter of any bovine animal such as ox, bull, cow or calf shall be punished with imprisonment of either description which may extend to 10 years and shall also be liable to fine. Fine may extend to five times the price of the animals slaughtered as determined by the Court. Possession of flesh of killed or slaughtered animals is also an offence punishable with imprisonment up to one year and fine up to Rs 500.
Punjab Cow; includes bull, bullock, ox, heifer or calf. Slaughter of cow (and its progeny) totally prohibited. Sale of beef prohibited. Imprisonment up to a maximum of two years or fine up to Rs 1,000 or both. The burden of proof is on the accused. Cognisable and non-bailable.
Haryana Definitions like Punjab. But rigorous imprisonment up to 10 years or fine up to Rs 1 lakh or both for slaughter or sale of beef. Sale of canned beef and beef products, and export of cows for slaughter banned.
Himachal Pradesh All Provisions like Punjab
Uttarakhand Under the bill, the slaughter of the cow in Uttarakhand would be an offence punishable with rigorous imprisonment for a term which may be extended up to 10 years but not less than three years and a fine which may be extended up to Rs 10,000 but not less than Rs 5,000. Under the Uttarakhand Protection of Cow Progeny Bill, 2007 penalty would be imposed on anyone found selling beef or possessing it.
Uttar Pradesh "Beef" means flesh of cow and of such bull or bullock whose slaughter is prohibited. Export of such meat into UP is allowed. "Cow" includes a heifer and calf. Slaughter of bull or bullock permitted on "fit-for-slaughter" certificate provided it is over the age of 15 years or has become permanently unfit for breeding, draught and any agricultural operations. Cow slaughter completely prohibited. Transport of cow outside the state not permitted for slaughter. Prohibition on sale of beef. Rigorous imprisonment up to two years or fine up to Rs 1,000 or both. Cognisable and non-bailable.
Rajasthan Slaughter of all bovine animals prohibited. Possession, sale, transport of beef and beef products is prohibited. Export of bovine animal for slaughter is prohibited. Custody of seized animals to be given to any recognised voluntary animal welfare agency failing which to any gaushala, gosadan or a suitable person who volunteers to maintain the animal. For slaughter, rigorous imprisonment of not less than one year and up to maximum of 10 years and fine up to Rs 10,000. Burden of proof is on the accused.
Madhya Pradesh Slaughter of cow, calf of cow, bull, bullock and buffalo calf prohibited. However, bulls and bullocks are being slaughtered provided the cattle is over 15 years or has become unfit for work or breeding. Transport or export for slaughter not permitted.Export for any purpose to another State where cow slaughter is not banned by law is not permitted. Sale, purchase, disposal of cow and its progeny and possession of flesh of cattle is prohibited. Imprisonment up to 7 years and fine of Rs.50,000.
Chattisgarh Slaughter of cow, buffalo, bull, bullock, calf, and possession of their meat banned. Transport, export to other states for slaughter also banned; attracts same punishment of 7 years’ jail, fine up to Rs 50,000.
Bihar Slaughter of cow and calf totally prohibited. Slaughter of bull or bullock of over 15 years of age or has become permanently incapacitated for work or breeding due to injury, deformity or any incurable disease. Imprisonment up to maximum of 6 months or fine of up to Rs 1,000 or both. Cognisable offence. Ban on Export of cows, calves, bulls and bullocks from Bihar is not allowed for any purpose.
Jharkhand Slaughter of cows and oxen; possession, consumption of their meat, banned. Violators face up to 10 years’ jail and/or Rs 10,000 fine.
West Bengal Slaughter of bulls, bullocks, cows, calves and buffaloes of all types permitted if a ‘fit-for-slaughter’ certificate has been issued. Certificate is given if animal is over 14 years of age and unfit for work or breeding or has become permanently incapacitated for work and breeding due to age, injury, deformity, or any incurable disease. Imprisonment up to a maximum of 6 months or fine up to Rs 1,000 or both. Cognisable offence.
Gujarat Law Applicable to bulls, bullocks, cows, calves and male/female buffalo calves.Slaughter of cow, calf, bull or bullock totally prohibited. Imprisonment up to maximum of life sentence. Cognisable offence.
Maharashtra Slaughter of cow totally prohibited. Slaughter of bulls, bullocks and buffaloes allowed on fit-for-slaughter certificate, if it is not likely to become economical for draught, breeding or milk (in the case of she-buffaloes) purposes. Imprisonment up to maximum of 6 months and fine of up to Rs 1,000.Burden of proof is on the accused.
Goa All animals can be slaughtered on ‘fit-for-slaughter’ certificate which is not given if the animal is likely to become economical for draught, breeding or milk (for she/buffaloes) purposes. Prohibition of sale of beef obtained in contravention of above provisions, except beef imported from other States. Imprisonment up to maximum of 6 months or fine of up to Rs 1,000 or both. Prohibition of sale of beef obtained in contravention of above provisions, except beef imported from other States. Cognisable offence
Andhra Pradesh & Telangana Complete ban on cow slaughter which includes calf. Bulls, bullocks et al. are permitted for slaughter once they have been given certificate that they are not economically viable for breeding or agricultural operations. Cognisable offence punishable by imprisonment of up to six months. Fine of Rs 1000.
Karnataka Slaughter of cow, calf of a cow or calf of a she-buffalo totally prohibited. Slaughter of bulls, bullocks and adult buffaloes permitted on ‘fit-for-slaughter’ certificate provided cattle is over 12 years of age or is permanently incapacitated for breeding, draught or milk due to injury, deformity or any other cause. Transport for slaughter to a place outside a state not permitted. Imprisonment up to maximum of 6 months or fine of up to Rs 1,000 or both.
Orrisa Ban on Slaughter:Slaughter of cow totally prohibited.Slaughter of bull, bullock on fit-for-slaughter certificate if cattle is over 14 years of age or has become permanently unfit for breeding, draught. Imprisonment up to maximum of 2 years or fine up to Rs 1,000 or both.
Tamil Nadu Tamil Nadu completely banned slaughter of cows in 1976. Bulls, bullocks can be slaughtered on ‘fit-for-slaughter’ certificate. Certificate given if animal is over 10 years of age and is unfit for work and breeding or has become permanently incapacitated for work and breeding due to injury deformity or any incurable disease. Imprisonment of up to 3 years or fine up to Rs 1,000 or both.
Kerala No state legislation. Issue governed at the Panchayat level. Panchayat laws provide for prohibition of slaughter of useful animals in Panchayat (non-municipal) areas in the State. Under the Kerala Panchayat (Slaughter Houses and Meat Stalls) Rules, 1964, no certificate in respect of a bull, bullock, cow calf, he-buffalo or she-buffalo or buffalo calf unless the animal is over 10 years of age and is unfit for work or breeding or the animal has become permanently incapacitated for work or breeding due to injury or deformity. In 1976, the Kerala Government issued an executive order banning the slaughter of useful animals in the Municipal areas as well.
Mizoram NO LAW
Assam Slaughter of all cattle allowed on ‘fit-for-slaughter’ certificate, to be given if cattle is over 14 years of age or has become permanently incapacitated for work or breeding due to injury, deformity or any incurable diseases. Imprisonment up to maximum of 6 months or fine of up to Rs 1,000 or both. Cognisable only.
Arunachal Pradesh NO LAW
Sikkim NO LAW
Meghalaya NO LAW
Manipur PROCLAMATION BY MAHARAJA - DARBAR RESOLUTION OF 1936 .That there should be no cow slaughter. No explicit post constitutional law. But beef widely consumed.
Nagaland NO LAW
Delhi Ban on Slaughter: Slaughter of all agricultural cattle is totally prohibited. Ban on Transport or Export for slaughter is also prohibited. Export for other purposes permitted on declaration that cattle will not be slaughtered.Export to a State where slaughter is not banned by law will not be permitted. Imprisonment upto five years and fine upto Rs 10,000, provided that normally imprisonment should not be less than 6 months and fine not less than Rs 1,000. Burden of proof is on the accused. Cognisable and non-bailable offence.

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Anusha Soni Anusha Soni @anushasoni23

The writer is special correspondent at India Today TV.

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