Aryan(Jindal Global Law School) & Gauri Singh(Durham University,U.K.) analyzes the interpretation of Article 48 by Indian Courts with special emphasis on the issue of cow slaughter and importance of the principle of ‘Constitutionalism’
In the landmark case of I.R. Coelho (Dead) By LRs. vs. State of Tamil Nadu and Ors, The Supreme Court of India highlighted the importance of the principle of ‘Constitutionalism.’ The Court noted that Constitutionalism limits absolutism and denotes the control on the exertion of authority by the Government, to ensure that the fundamental principles of democracy are not undermined. The Court further acknowledged that the principle of Constitutionalism extends to the safeguard of fundamental rights, separation of power, and the sacredness/supremeness of the Constitution. The ruling of the Court replicates the principles of ‘Basic Structure’that has been historically laid down in the ‘Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala’, wherein the Court laid down that “basic features”of the Constitution cannot be amended. The question of Constitutionalism is often discussed in relation to Article 48 of the Constitution and its application to prohibit the slaughter, sale, and consumption of cow in India. Article 48 of the Constitution of India has been prescribed under the ‘organization of agriculture and animal husbandry’and is a directive principle of state policy for the prohibition of cow slaughter. Relying on the same, several states in India have laws pertaining to restrictions upon sale, consumption, and slaughter of cows.
‘Article 48 of Constitution of India’ is a controversial inclusion in the Constitution of India, and both economic and religious reasons were cited to support its incorporation during the Constitutional Assembly debates. However, as evident from the language of the Article, the drafters have conceived the inclusion of the Article on scientific and economic grounds. Several important cases have delved into the interpretation of Article 48 of India’s Constitution and its conflict with the fundamental rights prescribed under Part III of the Constitution. One of the first cases dealing with the Constitutional validity of laws prohibiting cow slaughter, and Article 48 was Mohd. Hanif Quareshi v State of Bihar.In this case, the Court considered the conflict between a total ban under Article 48 and Article 19(1)(g) and 25 of the Constitution of India. The Court dismissed the claims pertaining to Article 25, citing that cows’ slaughter was not an essential practice in Islam and thus didn’t violate the religious rights of any Muslim. With respect to the claims regarding the right to the profession of butchers under Article 19(1)(g)of the Constitution of India, the Court cited the economic utility of cows in the agricultural process as a justification of the cow slaughter laws. However, importantly, the Court interpreted Article 48of India’s Constitution as a practical provision and calved out an exception with respect to the slaughter of buffaloes and bulls in the event that they cease to be productive and are rendered incapable of providing milk or operating as draught cattle.
To analyze the rationale adopted by this case, we must understand the conflict between Article 48 of India’s Constitution and the fundamental rights under the Constitution. There is an inherent contradiction in the Court’s reasoning in adopting different thresholds for cows as against the bulls and buffaloes, and the same suffers from several Constitutional loopholes. Firstly, while the Court acknowledges that bulls and buffaloes fail to retain economic utility after a certain age, it doesn’t extend the same analysis to cows’ position. This is a problematic distinction as even cows, after a certain age, fail to remain productive and cease to provide milk. There are millions of unproductive cows, and the same is a burden on the farmers, who are restricted from slaughtering or selling them. Therefore, this distinction is in violation of Article 14 of India’s Constitution as it is ‘manifestly arbitrary‘ as it doesn’t provide any rational justification of extending economic utility to only unproductive cows. Secondly, a blanket ban is in violation of the right to the profession (Article 19(1)(g) of Constitution of India of the butchers and also abridges their right to livelihood (Article 21of Constitution of India). This challenge was considered and dismissed by the Court, the same was done on the basis of ‘reasonable restriction in the interests of the general public.’ However, it must be noted that the Court didn’t extend the same justification to she-buffaloes, bulls, and bullocks and opined that they become useless after a certain age, becoming a burden on the economy. Drawing from the same rationale, butchers must be allowed to slaughter cows after they cease to remain useful. This practice is evident in some states wherein cows are slaughtered after obtaining ‘fit for slaughter certificates.’Thirdly, the blanket ban of slaughter, sale, and cow consumption is against the right to personal liberty and privacy of the citizens (Article 21of the Constitution of India). It must be noted that beef is a staple food for several communities and also a cheap source of protein for poor people. Therefore, in the absence of any ‘public interest’ justification as discussed above, an absolute restriction is against the personal liberty of an individual to decide the choice of his food. Moreover, as the right to privacy has been held to be a fundamental right, an individual’s food habits must not be subject to protection under the principle of ‘Constitutionalism‘ and shall not be arbitrarily restricted. In 2016, the Bombay High Court, giving due importance to Fundamental Rights, had rightly stated: “As far as the choice of eating food of the citizens is concerned, the citizens are required to be let alone especially when the food of their choice is not injurious to health.
Therefore, Constitutionalism’s principles require practical application of Article 48 as the Supreme Court accorded to bulls and buffaloes but shied away from according to cows. The economic standpoint of Article 48 must be respected in order to ensure that an absolute bar is not imposed on unproductive cattle, and the fundamental rights under Part III are not violated.
Aryan is a third year student from Jindal Global Law School & Gauri Singh is a year law student from Durham University,U.K.
I.R. Coelho (Dead) By LRs. vs. State of Tamil Nadu and Ors, AIR 2007 SC 861.
Rameshwar Prasad and Ors. Vs. Union of India (UOI) and Anr., AIR 2006 SC. 980.
Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala, (1973) 4 SCC 225).
Article 48, Constitution of India, 1950.
Cow Slaughter Prevention Laws in India, July 7, 2018, https://cjp.org.in/cow-slaughter-prevention-laws-in-india/, last accessed on May 7, 2020.
Shalvi Singh, Cow Slaughter, and the Constitution: Uneasy Compromises, https://rmlnlulawreview.com/2016/08/31/cow-slaughter-and-the-constitution-uneasy-compromises/, last accessed on May 7, 2020.
Mohd. Hanif Quareshi v. State of Bihar,  AIR 731 (SC).
Sandhya Ram, Ban on Cow Slaughter: The Camouflage of Article 48, October 25, 2015, https://www.livelaw.in/ban-on-cow-slaughter-the-camouflage-of-article-48/, last accessed on May 7, 2020.
Murad Ali Baig, Cow Slaughter Is Mainly Bull, October 9, 2015, https://www.outlookindia.com/website/story/cow-slaughter-is-mainly-bull/295550, last accessed on May 7, 2020.
Sheikh Zahid Mukhtar v State of Maharashtra, 2016 SCC OnLine Bom 2600.
IMPORTANT – Opinions expressed in this article are the sole responsibility of the author and do not necessarily reflect the views of IJOSLCA.