The Madhya Pradesh Bill to ban cow slaughter which received the President's assent has reopened the debate across the nation. The ban is a clear victory of the Hinduvta brigade in Madhya Pradesh. I seek to argue that the legislation is illogical and absurd, to say the least and the constitutional reasons advanced for enacting the legislation are dubious. I further argue that if it is conceded that the actual reasons for the ban is on the basis of the religious faith and sensibilities of the Hindus, especially the so called High Caste Hindus, then it is a slippery slope as religious faith makes a bad guide for law making.
Legal Basis of the Cow Slaughter Prohibition Laws
The bill seems to have been brought in to give effect to Article 48 of the Indian Constitution, which states: 48. Organisation of agriculture and animal husbandry: 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.
The directive principles of State Policy ("DPSP") which directs the state to ban cow slaughter has itself been carefully couched in scientific terms to soften the blow of a clearly religiously inspired and illogical provision, pushed through by the Hindu Right in the Constituent Assembly Debates.
DPSP, thus, are not binding on the state government, but they are "fundamental in the governance of the country and it shall be the duty of the State to apply these principles in makingf laws" (Article 37). Thus, several State governments across India have argued that such cow slaughter prohibition laws are brought in, in pursuance to the above stated DPSP. The Supreme Court of India, in several judgments, such as the Mohammed Hanif Qureshi v. State of Bihar (AIR 1958 SC 731) and State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat (2005) 8 SCC 534 (which upheld total and complete prohibition), have upheld the validity of absolute prohibitions on cow slaughter. The total prohibition on cow slaughter continues despite the decision in Akhil Bharti Goseva Sangh (3) v, State of Andhra Pradesh (2006) 4 SCC 162 wherein it was clarified that Article 48 did not require the state to impose a total ban on cow slaughter of bovine cattle including cow and its progeny.
Problem of Selective Enactment of DPSPs
The problem with that argument is the selectivity with which governments have chosen to implement DPSPs. Thus, for example, a DPSP (Article 44. Uniform civil code for the citizens: The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India) which prescribes the implementation of a Uniform Civil Code is pushed under the carpet for years, citing reasons that religious minorities might be offended by such a law/code. On the other hand, the same religious minorities are ignored while making laws prohibiting certain food which is a major part of the diet of several people people in India and across the world. In fact, the selective use of the DPSPs is clearly shown by the fact that cow slaughter bills do not prohibit goat or sheep slaughter, which they should if Article 48 is to be followed in its totality, as they too are milch animals, and therefore covered in the ambit of Article 48.
Religious Faith as a Guide to Legislations leads to Absurd Laws
My argument, in fact is, that cow slaughter prohibition legislations are amongst the prime examples where religious faith of a majority community i.e. Caste Hindus, alone (with the pseudo-scientific reasons used to make them look legitimate and palatable) are the actual reason for such absurd legislations. Using religious beliefs as a guide to make legislation is a recipe for disaster, specifically in a religiously and socially diverse country like India, or in any country for that matter.
Thus, if the government is so concerned with the religious faith of a class of former upper caste Hindus, even though the scriptures do not prescribe anything against beef eating, then the government should be equally, if not more deferential to views of other religious communities with regards to their prescribed food habits. Therefore, the government must ban pig slaughter and the consumption, sale of pork, given the prohibition in Islamic religious scriptures. It should not only ban all meat products but also ban potatoes, onions, tubers and other root vegetables, as they are proscribed to the followers of Jainism. Chicken meat and sea food, which is freely allowed in most Indian states, should be banned as well, if the religious views of several religious groups (such as followers of Arya Samaj, Swami Narayan, Radha Soami etc) are to be taken into account. Not to forget the ban on non-kosher foods, giving due benefit to Jewish religious sentiments.
Further, for example, a legislation could be brought in to ban the sale, purchase and consumption of specific food items or food itself, during the Hindu or Muslim fasting periods i.e. navratras and ramzan, as per the tenets of different faiths. The possible list of legislations which must be brought in to firmly support religious tenets and beliefs is huge and if all such rules are enacted as laws, it'll lead to mutually incompatible and contradictory laws.
Therefore, as is clear from the above paragraph, use of religious views as a guide for legislation making can lead to a lot of absurdities, like the absurdity of banning beef, without any scientific reasons, which is an inexpensive source of nutrition to many people in India, and is also a huge employment provider. These legislations are a clear case where the religious majoritarianism and the want for electoral gains have succeeded in pushing laws which are dubious in their intent and effect, on the flimsy grounds of religious faith and pseudo-science. It must be remembered that this importance given to religious faith while making laws is a slippery slope, going down which is extremely dangerous for a secular state like India.