By Jaasir Ashraf Mir
The issue pertaining to the slaughtering of cow or beef is not a new controversy. It owes its origin before the independence of India when Mahatma Gandhi supported the Khilafat movement led by two brothers, Mohammed Ali and Showket Ali, against the abolishment of Khilafat in Turkey.
Gandhi said by supporting their cause he would protect the cow. Though MA Jinnah was against this move of Gandhi, as he believed that latter is creating destruction by bringing religion in politics. It was Gandhi who later said that let the Muslims slaughter cows as he regarded it as indispensable for communal harmony. Gandhi said, “No law prohibiting the cow slaughter in India can be enacted, if a person does not want to voluntarily give up cow slaughtering. India does not belong to Hindus alone it belongs to Muslims, Parsees, or Christians. All live here and the claim of Hindus that India has become the land of them is totally incorrect.”
The issue of beef ban was then raised in the Constituent Assembly which decided the prospective model of governance also in terms of accommodating the religious beliefs in the constitution. The Constituent Assembly resolved it and decided it is the national interest that is to be kept at pedestal of sanity not the religious interest of the people. In the Constituent Assembly one of the members KT Shah demanded the insertion of an article which separates the state from any religion activities. Another member Tajamul Husain not only wanted to define the right to religion as a right to practice religion privately, but also insisted that religious instructions to be given only at home by ones parents and not in any educational institute. He also wanted to include the following clause in the constitution: “No person shall have any visible signs, mark or name, and no person shall wear any dress whereby his religion may be recognised.” Members of the Constituent Assembly in majority were against protecting any personal religious interest in the Constitution which will be against the interest of the nation and general public. They emphasised upon the point that there will be religious liberties given to the people but state will be having no religion.
However, later when the Constituent Assembly began, a Hindu orthodox industrialist of great wealth launched nation wide protection for cow movement. As a result a committee was brought to have the question of cow for including it as a fundamental right. This idea was totally rejected by the Committee and the draft of Constitution even finds no mention of it. But one of the members, Thakur Dass Bhagrva, pressed for insertion of the article in directive principles of state policy Thus in order to protect the public interest and emphasising the need of the economic value of some animals this article was inserted in directive principles of state which will permit the state to enact legislation in future for protecting those animals that will protect the larger interest of the people. Thus Article 48 of the Indian constitution was added 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”.
However, this article was grossly misused and slaughtering of cows was prohibited by enacting colourful legislations. Article 48 was merely used as scapegoat to serve personal interests, which constitutional makers had never envisaged. In post 1947 era many communal riots and pogroms took place even on the basis of rumours that cow is being slaughtered. Slaughtering of cows was prohibited by most Indian state but now they are trying to ban the slaughter of other animals too.
Maharashtra government earlier passed the bill regarding cow slaughter in the year 1976, but later by an amendment they widened its scope by incorporating prohibition regarding slaughter of other cattle’s. It took president of India 20 years to give his assent to the bill and finally in March 2015 bovine slaughter was completely banned in Maharashtra. But the new amendment act involves a lot of controversy as it has envisaged a total ban on cattle slaughter of various breeds with few exceptions. The Act carried with it various strict provisions like, the burden of proof has been shifted to accused and making it a non-bailable and cognisable offence, and has also prescribed the punishment of five years and fine up to Rs 10,000. By invoking these provisions it can be gathered it was not as such a public welfare legislation but a politically motivated issue to appease the majority community. Such kind of move can be looked as a drawback to the secular dynamics of Indian Constitution. Article 48 is kept hostage to shield their unconstitutional legislations. Any restriction that has to be incorporated on religious freedom in the Indian constitution should be based on solid reasoning and public welfare associated in a liberal democratic setup. Imposition of ban on slaughtering of animals without any solid reasoning and on religious grounds is against the secular fabric of India.
Secularism, which was added by 42nd amendment but has remained, undisputed even though; most of the constitutional amendments made by 42nd amendment were repealed by the 44th amendment. Thus secularism was accepted as a basic feature of the constitution and has been upheld by the Supreme Court in various cases and leading case on this is SR Bommai v. Union of India wherein judges of the Supreme Court of India individually explained the significance and place of secularism under the Constitution in very meaningful words that:
a) The Constitution has chosen secularism as its vehicle to establish an egalitarian social order. Secularism is part of the fundamental law and basic structure of the Indian political system.
b) Notwithstanding the fact that the words ‘Socialist’ and ‘Secular’ were added in the Preamble of the Constitution, the concept of secularism was very much embedded in our constitutional philosophy from the very beginning. By this amendment what was implicit was made explicit.
c) Constitutional provisions prohibit the establishment of a theocratic State and prevent the State from identifying itself with or otherwise favouring any particular religion
d) Secularism is more than a passive attitude of religious tolerance. It is a positive concept of equal treatment of all religions.
The state as an entity must maintain its neutral character and should not give any importance to any religion wherein it will tend to signify its sense of belonging to any particular religion. It is essential for any secular state that the burden of secularism should not be only laid on the minorities alone but equally majority should also adhere to that principle. The state should formulate its policies on scientific bases and logical reasoning. On this point Indian constitution expressly mentions in Article 51A (h) “which provides for the development of the scientific temper, humanism and the spirit of inquiry and reform.”
Jammu and Kashmir Constitution has not inserted the world secularism in its preamble. Secularism word has found its place in section 25, which is the directive principle in the Jammu and Kashmir constitution. Though I believe this has been wrongly placed under the directive principle as fundamental rights applicable to Kashmir already declare it as a basic feature of the constitution. It should be rather inserted in the preamble of the Constitution if the state is firm to maintain its secular character. Present situation in Kashmir has been created by the successive governments. They have never been keen to constitute law commission who would timely review the law of the land and check they are not repugnant to the fundamental principles of the constitution and accordingly repeal those unconstitutional and obsolete laws. The matter is now sub-judice before the High Court that have also all the powers to declare RPC provisions as ultra-virus to constitutional, if proved they are unnecessary restrictions to the freedom of religion and are sanctioned in RPC because of religious bend attached with it and are not based upon logical reasoning or involving some greater welfare of the people. Let us look forward for the honourable court decision for upholding the true secular character and keep its essence intact in the constitution.
—The author is an Advocate at the Supreme Court of India. Feedback: [email protected]