The Holy Cow:
A Short Commentary on the Modern-Day Legal Position of the Cow

May 15, 2023Mohammad Adil AnsariEdited by Lu Shegay

Introduction

The sanctity of the cow as a holy entity has reoriented the socio-politico-cultural landscape of India in recent times. The chief patronizing force for the propulsion of the sanctity of holy cow in the public landscape is attributable to the landslide victory of the Far-Right BJP Party in the National Elections in 2014. The cow vigilantism movement also emerged during this phase which saw mob lynching in the name of a cow becoming a major problem of India’s national affairs. Under the guise of cow protection, members of fanatic Hindutva groups such as Bajrang Dal, VHP, and its regional subsidiaries launched a country-wide tactical guerrilla operation against isolated individuals belonging to the Muslim minority and Dalit groups.

In light of the present developments, the paper while insulating itself from discussing the socio-political troubled affairs around cow protection politics, limits itself to the discourse of symbolism of the cow, the impact of the current Indian state policy and laws upon the welfare of the Cows in contrast with other draught animals, with a special reference to the state of Uttar Pradesh.

The Cow is Holy

The disposition of the cow as a divine holy entity elevated to a status even above one’s biological mother is well-bound within the Hindu consciousness. In the words of Mahatma Gandhi, “Mother Cow is in many ways better than the mother who gave us birth. Our mother gives us milk for a couple of years and then expects us to serve her when we grow up. Mother cow expects from us nothing but grass and grain. Other mother often falls ill and expects service from us. Mother cow rarely falls ill. Our mother when she dies means expense of burial or cremation. Mother cow is as useful dead as when alive.” Moreover, Gandhi would go on to claim that, “The central fact of Hinduism is cow protection” and equate the act of cow slaughter and man slaughter on the same criminal pedestal. Such claims are neither excessive nor extraordinary, but rather merely reflective of the general Hindu sentiment with respect to the cow. 

It is of general consensus that Vegetarianism and cow worship became a part of Hinduism through the Vaishnavite movement, which believes in the supremacy of Lord Vishnu and his reincarnations on earth, chiefly Lord Krishna. In Krishna lore, the feature of the cow as a divine symbol has a prominent recurrence. The Earth Goddess manifests herself as a cow to run away from the exploitation of earthly kings and is subsequently calmed down by Lord Vishnu who decreed that the kings on earth were henceforth responsible to treat the earth, as cowherds treat cows. Lord Krishna is also known as Gopala (Go: Cow; Pala: Caretaker) and Govinda (Go: Cow; Vinda: Protector) and was essentially a cow-herder of the Yadava clan. In Vaishnavite lore, the highest Paradise is called Go-loka (Paradise Realm of Cows) which is inhabited by cows. The Puranas, Grihasutras, Dharmashashtras, and the later lawbooks acknowledge the privileged status of the cow.

"Brown Cattle on Green Lawn Grass during Daytime" by Pixabay from Pexels

Cow and the Constitution 

The Indian Constitution casts an explicit obligation upon the Republic to protect the cow and mandates it as one of the primary cornerstones for policy making for the country. Article 48 of the Indian Constitution reads: 

“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.


Moreover, a duty is also cast upon the Indian citizens under Article 51A (g) “to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures.” Examination of Article 48, prima facie, points out that such a provision with regard to animal protection extends to all animals which play an economic role within the agrarian economy. This view was conclusively held by a consensual sanction of all members of the Constituent Assembly when this provision was being framed. However, the debate within the Constituent Assembly does inform us that the undercurrent of inclusion of such provision was dictated primarily by religious concerns. But the motion moved by Pandit Thakur Das Bhargava, which called for economic parameters to be the determinative factor for extending such protection to cows prevailed and gained the favour of members of the Constituent Assembly. 


Article 48 does not become operational by default but casts an obligation on the state to be made functional through appropriate legislation. Interestingly, no other milch or drought animal was discussed beyond the occasional guest mentions in the Constituent Assembly, which consolidates the perspective that while the parameter in accordance with a legal protective sanction to a cow was professed to be economical in nature, the call for it was driven essentially to conform to the sentiment of Hindu conscience.


It is worth noting though, that the Indian Constitution professes a Secular character in its Preamble. Consequentially, a mandate on purely religious argument cannot be accommodated within its constitutional and policy scheme, as such. However, this has not prevented the political and executive corners and as of recently, even judicial corridors, from an explicit citation of purely religious arguments to dictate and justify the cow protection machinery.  The subject of cow protection falls within the ambit of individual states owing to Entry 15 in List II (State List) of the Indian Constitution and consequentially only States can make laws on it.


As of current all Indian states and Union territories have a Cow Slaughter Prevention Law with the exception of 5 States (Arunachal Pradesh, Kerala, Meghalaya, Mizoram, and Nagaland) and 1 Union Territory (Lakshadweep). These laws stipulate penalties and prison terms which vary from up to 6 months in some states to up to 10 years in other states. Legislative attempts have been made in the past to impose a nationwide ban on cow slaughter, however, in spite of increasing demand for the same, a central law to dictate the same is yet to see the light of day. A private members bill, the Cow Protection Bill, 2017 was introduced in the Rajya Sabha (Upper House of the Indian Parliament) by Subramanian Swamy, a well-known Hindutva hardliner politician, which stipulated the Death Penalty for the slaughter of the Bos Indicus breed (exclusively) of cows and calves (the Indian cow: held sacred in Hinduism) but was later withdrawn when it was met with widespread criticism.

"Closeup Photo Of Black Calf In Cage" by Susanne Jutzeler, suju-foto from Pexels

Cow and the Legislation

The Indian Constitution in List III Entry 17 stipulates “Prevention of Cruelty to Animals” as a legislative subject both for the Centre and State. Major legislation, namely, The Prevention of Cruelty to Animals Act, 1960 (PCA Act) was enacted by the Parliament to “prevent the infliction of unnecessary pain or suffering on animals”. The Act defines “animal” to cover all living creatures other than a human being. It criminalises the mistreatment of animals and establishes the Animal Welfare Board of India as the supervisory apex body to prevent cruelty to animals and advise the Government on a policy decision. Any cruel treatment meted out to an animal is classified as a punishable offense under Section 11. However, the punishment prescribed falls redundant and rather serves as a mockery to the very purpose of the Act itself. The Act prescribes a singular sentencing dictate namely “in the case of a first offence, with fine which shall not be less than ten rupees (0.12 USD) but which may extend to fifty rupees (0.61 USD) and in the case of a second or subsequent offence committed within three years of the previous offence, with fine which shall not be less than twenty-five rupees (0.30 USD) but which may extend to one hundred rupees (1.22 USD) or with imprisonment for a term which may extend to three months, or with both” for offences ranging from the owner neglecting the exercise of his dog to “mutilate(ion) of any animal or kills any animal (including stray dogs) by using the method of strychnine injections in the heart or in any other unnecessarily cruel manner”. The Act governs any cruelty met out to any animal (including cow) within the jurisdiction of Indian territory. A distinction is made for the cows in particular, as special laws have been placed by States (as mentioned previously) to protect them.


The Uttar Pradesh Prevention of Cow Slaughter Act, 1955 (UP Act), in particular, is to be contrasted in this regard as it calls for a complete ban on slaughter, transport, and mistreatment of cows, and a conditional sale of beef. It prescribes a maximum punishment of up to 10 years of rigorous imprisonment and a fine extendable up to 5 lakh rupees (6092 USD). The UP Act casts a mandatory duty on the State to establish institutions to take care of cows, bulls, and bullocks. The Uttar Pradesh Goshala Adhiniyam, 1964 was brought for the better administration, funding, and monitoring of Goshalas (Cow Shelter Homes).


In contrast, the PCA Act in Section 35(1) only stipulates a discretionary direction to the State government to establish infirmaries for the treatment of animals. The Act does not lay down any mandatory or even an aspirational direction for the establishment of any institution in line with the ‘Goshala’ scheme for cows.


Moreover, the Cow slaughter laws prohibit cow slaughter absolutely and without exceptions. Meanwhile, the slaughter of other animals is allowed under Section 28 of the PCA Act if such killing of an animal forms a part of the religious obligation of the person.

Cow and the Present-day Judicial Discourse

During the initial period following the independence of India in 1947, the parameters for justification of exclusive protection of the cow were primarily economical. The religious dictum argument was acknowledged by the judiciary to have a socio-political force and often a point of contention in communal tension and riots but not the decisive argument to inform its decision. But the Judiciary has initially trodden with careful footsteps while dealing with the issue. Article 48 was read with and aligned with Article 47 of the Indian Constitution which mandates the state to raise the standard of nutrition of its citizens as its primary duty. The Supreme Court has elaborated this view in the landmark decision in Hanif Quareshi case, acknowledging the economic burden the protection of unproductive cows, bulls, and bullocks would yield to the State exchequer.


The Supreme Court said, “The maintenance of useless cattle involves a wasteful drain on the nation's cattle feed. To maintain them is to deprive the useful cattle of much-needed nourishment. The presence of so many useless animals tends to deteriorate the breed. Total ban on the slaughter of cattle, useful or otherwise, is calculated to bring about a serious dislocation….Such a ban will also deprive a large section of the people of what may be their staple food. At any rate, they will have to forego the little protein food which may be within their means to take once or twice in the week.”


Interestingly the Supreme Court made explicit acknowledgment of cow as a poor economic asset in terms of milk production but a better meat-yielding option against the buffalo, yet the Supreme Court upheld that the cow slaughter must be prohibited absolutely. It is to bring to the attention of the reader that the reasons supplied for the same were in the opinion of the author inadequate and grossly unsatisfactory. The court said that since the cow is less economical in terms of milk production but a preferred dietary choice, it must be protected from slaughter completely so as to prevent its numeric strength from falling. Meanwhile on the very same parameter of economic inefficiency, the old and decrepit buffaloes, bulls, and bullocks were allowed to be slaughtered. The ‘reasonable classification test of age and usefulness’ which informed the qualification of the slaughter of draught animals, was extended to all draught and milch animals (even bulls and bullocks), with the exemption of the cow. The judgment was defective in terms of supplying compelling scientific or economical arguments for the exclusive protection of cows but provided a workable scheme and a threshold for such protection.


The subsequent judgments instead of supplying the defect in judicial reasoning would rather exacerbate the problem. The Supreme Court in a later 2005 judgment of State of Gujarat v. Mirzapur Moti Kureshi Kassab further exempted the cow progeny, namely, bulls and bullocks as well, from the ambit of this test and allowed absolute prohibition of slaughter of cow and cow progeny. Relying on the highly controversial National Commission on Cattle Report, infamous for its finding that “the value of dung is much more than even the famous "Kohinoor" diamond”, the majority judgment authored by Chief Justice R.C Lahoti laid emphasis on the (highly controversial) utility of cow-dung and cow-urine and its economic value to admonish the relevance of ‘reasonable classification test of age and usefulness’. 

Two facets are important to be highlighted to aid the reader to grasp the complete picture around these recommendations. Firstly, the Chairman of the National Commission on Cattle, Justice Guman Man Lodha was quite vocal and well-known for his far right-wing Hindutva ideology and has been widely criticized for biased and distorted appreciation of facts in this Report. Secondly, the proposition put forward are striking mirror image of the proposition put forward by Seth Govind Das in the Constituent Assembly Debates (discussed earlier) and was voted down by members of the Constituent Assembly by a huge majority. Iterating a demand which was vetoed through a compelling majority in Constituent Assembly, the Commission Report directly challenges the spirit of the Constitution as well as the intent of its makers. It is rather baffling that the Supreme Court disregarded its Constitutional commitment to the original intent and spirit of the Constitution and relied upon the controversial Report along with its own crafted aspirational and policy considerations of the viability of cow-dung and cow-urine, to arrive at such a conclusion. The judgment has received widespread criticism over the years for a visible abdication of judicial acumen and for resorting to the language of political advocacy. However, the judgment, as of current, stands valid in India and serves as the primary force dictating the stringent Cow Protection laws throughout the country. The latest order of Justice Shamim Ahmed of Allahabad High Court solely relied on Hindu sentiment as the most viable ground for cow protection and completely abdicated the economic argument for the same. Moreover, the court re-endorsed the political demand for the declaration of a cow as a national animal with fundamental rights as a demand from the judiciary itself.

"Black and White Cow in Front of Green Leafed Tree" by Lukas Hartmann from Pexels

Concluding Remarks

As mentioned above, it is evident that India happens to harbour the most comprehensive and strict Cow protection laws in the world and yet is in the process of making them more stringent. Technically, these legislative developments coupled with pro-active state action and vigilante activities by Hindutva terror outfits, in logical corollary should ideally result in an exponential increase in the numeric strength of cows as compared to other animals. However, according to the National Dairy Development Board, in 1951 there were 155.3 million cows which increased to 192.5 million in 2019, i.e., an average increment of 0.55 million cows per year. Meanwhile, the buffalo population, which has no laws protecting it from slaughter, estimated at 43.4 million in 1951 rose to 109.9 million in 2019, i.e., adding 0.97 million buffaloes per year. Almost double the number of cows added per year! The goat, another milch animal that has no law protecting it from slaughter, recorded a much higher growth rate.


The reason for the same can be best attributed to the fact that the stringent state laws on cow protection made cows a very poor economic choice and a very high-risk liability. The milch and drought animals essentially depend upon the small and poor farming families of India for their thriving. The law has cut short the prospects of such families to derive the largest income from cows by selling them to the butcher community, which in turn widely damaged other associated industries. Moreover, the law has also burdened them with a substantial continuing financial liability to maintain dry cows and their progeny or face harsh prison terms and hefty fines. Such sanctions coupled with the mob-lynching activities by the Hindutva outfits have discouraged the farming community from rearing cows and instead prefer buffaloes (a no-risk and high-profit-yielding alternative). The trend of abandonment of bulls and cows after they become dry, to both avoid the economic liability of its maintenance and rigorous sanctions of the state, has created a widespread issue of law and order. The regular cow-human conflict on roads, public spaces, and farmland, has been a subject of rife danger and public concern as these cows are left to fend for themselves. The problem is exacerbated by the fact that the states do not have the financial capabilities or the manpower to take care of abandoned and old cows. Consequentially, regular reports of mass deaths by hunger, negligence, poor treatment, mismanagement, etc. have become a norm in everyday newspapers. The Goshala initiative has failed to generate enough income through cow dung and urine to make cow protection a self-sustaining and economically profitable affair, and consequentially the Government is forced to collect additional revenue from the public in the form of Cow Cess to fund its cow protection schemes and establishments.


In short, India is currently in the midst of a crisis wherein it has inadvertently deployed the very tool it intended to use to save cows to eliminate them.  The Supreme Court’s observation in Hanif Qureshi case were prophetic in this regard when it said that, “Preservation of useless cattle by establishment of Gosadans is not, for reasons already indicated, a practical proposition. Preservation of these useless animals by sending them to concentration camps to fend for themselves is to leave them to a process of slow death and does no good to them. On the contrary, it hurts the best interests of the nation in that the useless cattle deprive the useful ones of a good part of the cattle food, deteriorate the breed and eventually affect the production of milk and breeding bulls and working bullocks, besides involving an enormous expense which could be better utilised for more urgent national needs.” Moreover, “a total ban will help the tendency for the number of surplus cattle to increase and, in their view, a total ban on the slaughter of all cows, calves and other milch and draught cattle will defeat the very object of the directive principles embodied in Art. 48 of the Constitution.” If only the Supreme Court in later years, had the foresight and courage to heed to them, the holy cow could have been spared its present-day misery.

References:

This article is authored by Mohammad Adil Ansari, a PhD scholar and a student of the online course of Animal Law Fundamentals taught and supervised by Lu Shegay. The course was generously sponsored by the Food System Innovations.

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