How Cow Protection Failed to Become a Fundamental Right - Examining the Constituent Assembly Debates
"Some people here talked to me and said “You say that you
want to protect the cow and want it to be included in the Fundamental Rights.
Is the protection of the cow a fundamental right of a human being? Or is it the
fundamental right of the cow?” I replied to them and tell them suppose it is a
question of saving your mother or protecting your mother. Whose fundamental
right is it? Is it the fundamental right of the mother? No. It is my
fundamental right to protect my mother, to protect my wife, my children and my
country.”
-
R.V. Dhulekar[1]
Do you know the story of
how King Kaushika became Brahmarishi Vishwamitra? It involved the divine cow
Kamadhenu who was owned by Vasishtha. Kamadhenu fed the entire army of Kaushika
when they came to the hermitage of Vasishtha as guests. Realizing her divine
nature, the King wanted to possess her but Vasishtha would not agree to any
cajoling or threats. What ensued was nothing short of battle to possess
Kamadhenu and in the process, he ended up losing his army, his one hundred
sons, and gave up his Kingdom to perform penance. Although his immediate goal
was to take revenge against Vasishtha, later on he realized the futility of it
and earned the status of a Brahmarishi by getting blessings from Vasishtha
himself. The point of telling this story is to show how much the cow was venerated
in our Indian culture. But for different reasons, both of them valued Kamadhenu.
If this story does not drive the point home, then take the one about King
Dileepa who was willing to give his life for
protecting the sacred cow Nandini or when King Elallan popularly called ‘Sama Neethi Cholan’ sentenced his son to
death for killing a young calf so that justice shall be served to the mother
cow.[2]
These were Kshatriya men who are not
faint-hearted, but look at them revering the gentle animal, cow!
I don’t know if it is for
this absence of kashtriyata that we see current
governments being so reluctant to protect the cows and other cattle. It is
deeply wounding to know that the government adopted the policy of pink
revolution when the people of this country worship the animal.[3]
There are many state laws to protect cows from slaughter but the problem is we
also have states like Kerala and West Bengal where it is not banned. This means
cows get smuggled to the non-prohibiting states to get slaughtered, either for
domestic consumption or export. My purpose here is to trace the origin of this
problem to constituent assembly debates. To establish that the matter of cow
protection wouldn’t be debated so hotly today if the assembly had then resolved
the issue once and for all. Because it had all the means to do so.
Protect the useful cows or all…
It shouldn’t come as a
great surprise that there was not even a mention of cow protection in the Draft
Constitution when it came for First Reading. It was only after some members
pointed out that the Drafting Committee (DC) included a provision called Art. 38A
(i.e. Art. 48 of COI) which was deliberated in the clause-by-clause discussion of
Second Reading. Members such as Seth Govind Das, Pandit Thakur Das Bhargava and
Chaudhari Ranbir Singh, who belonged to the Congress party pointed out that the
party had passed a formal resolution on cow protection in their meeting but the
same failed mention in the draft. This is important to note as the DC also had
two members of the Congress – KM Munshi and T.T. Krishnamachari.
Now it is not clear from
the debates what the original Art. 38A drafted by the DC looked like. Because
we only have access to the amendments introduced to the article and there were
two of them. The first was introduced by Thakur Das Bhargava who rearranged the
wording of the original article drafted by Ambedkar and says there is no substantial
alteration. Second is the amendment moved by Seth Govind Das to the amendment
of Bhargava. I am unable to comment on the amendment of Bhargava as I don’t
know what he wished to change. But from his speech it emerges that he only asks
for cow protection from the economic point of view. He says very specifically
that although the cow is a cultural and religious sentiment for many, it is not
on this note he is asking for its protection. He reiterates for the protection
of only the useful cattle as India is an agricultural economy and we need them.
The second amendment is to protect not just the useful cows but also the useless
ones. Another thing in the same amendment was to expand the scope of protection
to other cattle born out of cow such as bulls, bullocks and calves. Govind Das
makes this stance from a religious and cultural standpoint.
The assembly first
rejected the amendment introduced by Seth Govind Das and then proceeded to pass
the one moved by Bhargava. Kindly note that the amended article had the words ‘useful
cattle’ as reproduced below:
38-A. 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 of cattle and prohibit
the slaughter of cow and other useful cattle specially milch and draught
cattle and their young stocks.
This meant people were accepting of the utility
argument. I will comment more on this in the upcoming sections. Later in the
third and last reading, objections were raised to the revision of Art. 38A by
the DC without consulting the assembly. The changed article went like this:
“The State shall endeavour to organise agriculture and animal
husbandry on modern and scientific lines and shall in particular, take steps
for improving the breeds of milch and draught cattle including cows and
calves and for prohibiting their
slaughter.”
There were mainly three issues against this change
which was addressed by Thakur Das Bhargava. One, was the deletion of the word
‘preserving’. Second, was regarding the omission of the word ‘useful’. And the
third grievance was that the word ‘prohibiting’ was misplaced so as to change
the meaning of the entire clause. According to Bhargava the Art. 38A accepted
by the assembly only prohibited the slaughter of cows and calves completely
while imposing a partial prohibition on the slaughter of useful draught cattle.
His arguments are largely superficial because he wants to maintain the
status-quo regardless of whether the change is for the better. In his own
words-
“No doubt it falls for short of the expectations of
the general populace but it was a measure on which the House was agreed as a
compromise. This compromise ought not to be interfered with."
The compromise that he is talking about is when the
assembly accepted his amendment instead of the amendment moved by Govind Das
who had requested for a complete ban based on cultural sentiments. The
reasoning behind the ban is very important because as Bhargava himself admits
Hindus are being asked to give up on their wishes and accept that which makes
everyone happy. This is not dharma,
it is athinyay or appeasement where
you go for a quick-fix instead of declaring justice for one side. How many
times do we have to learn the same lessons again and again? Vidura called it athinyay to split Hastinapur because no
one was strong enough to tell Duryodhana to back down. History repeated itself in
1947 on partition because we weren’t ready to fight a civil war to quell the Muslim
uprising. We gave in to the demands of the adharmis
only for the situation to explode at a future date. In the very same way, the
mistakes of the constituent assembly continues to haunt us even today. This too
shall be addressed with time and there shall be a complete ban on cow slaughter
in this country.
While the House accepted the first and third issues,
the word ‘useful’ never made it to the final Art. 48 which stands as follows –
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.
In conclusion, it appears that the assembly went
with the stance of Seth Govind Das for protecting all cattle, regardless of
their utility, but I cannot say this with certainty when the intention behind
the article was irreligious. Even the members were confused with some taking it
as total prohibition while others lamented that this half-hearted protection
wouldn’t do. J.J.M. Nichols Roy representing
tribal Assam enquired whether the ban was on slaughter of all cows at all times
and at all places but there was no one to respond to that. By sheer dumb luck
we avoided this collision course that would have guaranteed more problems than
what we already have if the word ‘useful’ was retained. Slaughter of cows post
their milk yielding age would be legitimized as is already being done. But
however, as the article doesn’t mention anything about usefulness, it provides
for an opportunity to bring a central law banning all cattle slaughter.
To include it under Part III or Part IV…
As mentioned in the
previous section, the move for ban on cow slaughter was proceeding on two
grounds – the cultural and religious stance espoused by Seth Govind Das,
Shibban Lal Saxena, Dr. Ragu Vira, R.V. Dhulekar among others and the purely
economic stance taken by Thakur Das Bhargava. In fact, Bhargava himself
revealed his underlying intention to be a religious one, when he passionately
stated that he valued Art.48 over all the rest of the 315 articles of the draft
constitution. Apart from this he makes many references to puranas to show that the cow was revered and that there is no
question of useful or useless cows as they are a walking manure. He makes many
contradictory statements for a person advocating the utilitarian argument. Probably
for the lack of courage and foregone conclusion, he chose an appeasing stance
when raising the demand for cow protection. It is frustrating to see that the
assembly followed his words to action when there were others who put a very
convincing case for cow protection.
Almost all wished that
the clause would be inserted under the chapter of Fundamental Rights and even
amendments to this effect was ready to be moved by many members. However,
heeding to the words of Ambedkar, Bhargava gave up on the amendment which he
described as a sacrifice. He didn’t want the minorities to be forced to accept
something, so, he agreed that Directive Principles is the rightful place for
cow protection. And when he gave up his right to move the amendment, all others
followed like sheep and they too failed to press the matter. Seth Govind Das
had from the very beginning asked that cows should be protected under Part III
and their slaughter should be made a criminal offense by drawing analogy to
Art. 17 which abolished untouchability. And his reasoning is very sound,
because the constituent assembly condemned a practice under Hinduism which was
bad, so, he thought they will be open enough to accept something good that the
religion had to offer. But when he sensed that the assembly was unwilling to
act on religious sentiments of the majority and was rejecting the proposal on rational
grounds, he demanded that a referendum be kept.
It was R.V. Dhulekar who
spoke boldly and rejected the logic that cow protection concerned animal right
instead of the fundamental right of the human. He doesn’t merely speak using
his lawyer credentials. He speaks with true shraddha
when he says it is his fundamental right to protect the cow as the Hindu
society considers it gomatha. Very
similarly, Dr. Ragu Vira spoke openly that cow protection was sought for purely
religious reasons as this civilization has always viewed the killing of cow (go-hatya) and learned men (brahma-hatya) at par. It was Shibban Lal
Saxena who balanced the opposing interests by saying that Hindu religion
sanctifies what is economically good. He says we worship the cow to protect it.
Having spoken so beautifully, none of these members moved an amendment to change
the place of the clause to Part III. Shri. Dharampal’s observation as the
Chairman of the National Commission on
Cattle which drafted the Lodha Committee Report is worth noting in this context:
"I have a feeling
that there was quite some deception and steamrolling of ordinary members of the
Constituent Assembly by those who managed the Assembly. This also
happened in the case of Panchayats,
the national anthem and scores of other matters.”
I don’t know if we can take it to be Ambedkar’s doing when the
Drafting Committee also had K.N. Munshi who had very strong Hindu ideals. The
truth is that there was a discord within the Congress party. Only that will
explain why the Draft Constitution lacked a provision in the first place when
the party had taken a formal stance outside the assembly, why the House wanted
to take an economic view on the issue when there were even minorities supporting
cow protection on religious grounds, and why the Congress refused to bring a
nationwide law all these years despite having the cow as their party logo. The assembly was
controlled by the Congress party and the party men were in turn controlled by
modernists like Nehru. So, the voices of traditionalists like Seth Govind Das
wasn’t given any importance.
The members were extremely complacent when they didn’t even put in
a fight and dumbly hoped that the governments will enact a legislation giving
effect to Art. 48 when the time was right. This happened even after Ambedkar
had clearly spoken about the nature of Directive Principles while previously
discussing Art. 47 on alcohol prohibition –
“There is
therefore no compulsion on the State to act on this principle. Whether to act
on this principle and when to do so are left to the State and to public opinion. “
This means the members
agreed to leave it as an open issue. Note that there were existing laws in many
provinces that banned cow slaughter and they were ineffective. The object of
trying to include it under the Fundamental Rights was to give it a Constitutional
sanction rather than leaving it to the discretion of future governments. There
was an excellent suggestion from Shibban Lal Saksena to have the Directive Principles enforced as Fundamental Rights at
the end of 10 years of the Constitution coming into force as it cannot be
implemented immediately. Again, this did not win the approval of the House.
The Problem of the List…
All was not lost yet. This
defeat on the front of Fundamental Rights could have been easily remedied if
the members had been sober when the discussion came up on the lists. But time
was instead wasted on wordings when the focus should have been on making the
matter a part of the Concurrent List.
The DC had simply
included the words – improvement of stock – under the present Entry 15 of the
State List. Again, it is Bhargava who moved an amendment for the wordings to be
changed to – ‘Preservation and improvement of stock and useful breeds of
cattle, banning the slaughter of animals etc.’ Steamrolling happened yet again and
the wordings accepted by the DC were – Preservation, protection and improvement
of stock. It was pointed out that these wordings had nothing to do with the ban
on cow slaughter. But T.T. Krishnamachari convinced the House that banning or
not banning is a policy measure which the list does not concern itself with as
it merely mentions the legislative power of the states.
It was Shibban Lal
Saxena who astutely introduced an amendment to shift the subject-matter from
state list to concurrent list, so that both the Central and the state
governments will have legislative powers. His main argument was that Centre had
more resources at its disposal to improve livestock and as such the matter
deserved its place in List III. However, Saxena’s initiative was mocked by
Krishnamachari and his amendment was negative by the House.
This mistake has been
hurting us for a long time as the Central Government lacks competence to make
laws on the matter. The Lodha Committee Report mentioned above gives the
history of failed constitutional amendments, resolutions, and private member’s
bills in the Parliament to bring a nationwide law banning cow slaughter. Things
took a peak in 1966 when Hindus organizations protested before the Parliament
for a ban on cow slaughter. The unarmed gau
rakshas were open-fired at when they tried to storm the parliament. The
number of Hindu lives that were lost ranges somewhere between 375 and 5000 and
is remembered as the largest
Hindu killing by Indira Gandhi in a single day.
Subramanian Swamy’s Cow
Protection Bill, 2017 demonstrates, it doesn’t take a constitutional amendment
to bring the law. He brought the bill under Entry 17 of the concurrent list –
Prevention of cruelty to animals. But he had to withdraw his private member’s
bill because the party lacked the political will at that time to bring in a
law. If the party claiming to represent Hindu interests doesn’t bring the bill,
I don’t know who will.
How the Constituent Assembly failed the Hindus…
If you need to
understand where the constituent assembly members went wrong about cow
protection, listen to the minority members opinion, all of whom were lawyers.
Z.H. Lari, who migrated
to Pakistan in 1950, comes out to openly to say that Islam doesn’t mandate the
slaughter of cow. Hence, any ban would only be taking away the privilege and
not the rights of muslims. His only point is that the House should state very
clearly their intention behind the ban and he is for the inclusion of the article
under Fundamental Rights. The current provision is vague and contradictory as
at first it proposes to organize agriculture along scientific lines but in the
next instance it wishes to save cows. He is able to better sympathize with
those who cite religious reasons for protecting the cow. Muhammad Saadulah, a member
of the DC, says there is a suspicion if the provision was brought through the
backdoor for concerns that it might not be accepted if a religious reason was
given. This same point is raised by Frank Anthony who represents Anglo-Indian
communities on the penultimate day of the constituent assembly debate. He
assures that he is ready to respect the religious susceptibilities of Hindus
and is for the inclusion of the article under Part III.
Several others resonated
that the article should not have been included the way it has been done and that
the Hindus should have been bolder in claiming what they hold sacred instead of
the lame attempt to have it by whatever means. Except for two members from
Assam, who were against complete ban, there was really no opposition. The fear
was in our minds.
My two cents…
Seth Govind Das was
right when he said this country shall have only one culture even though its
people may profess different religions. Let us acknowledge that we are all
eating another life to sustain our own. But the consciousness of the life we
are consuming matters, because a plant and a cow are not on the same level of
consciousness. If you wish to read more on this topic, I will refer you to this
link which has the books of Dr. Sahadeva Dasa available for
free download.
Like Swamy says, the
fight to protect the cows is to strengthen the Hindu mind. There is no reason
for us to give in to secular demands and let go of our proud identity. I don’t
wish to cite any reasons of utility, although I have many, to protect this
gentle creature because that would make me a utilitarian like Thakur Das
Bhargava. I would rather emulate Seth Govind Das who stood up to Nehru when he threatened to resign for introducing the bill on cow protection.
Doesn’t it disgust you when you hear there are countries consuming dog meat?
But you are okay with eating cow because this beef-eating was normalized by the
British. Had the Chinese conquered this world, we would have also been pretty
okay with eating dog meat just like in South Korea and Vietnam, which were once
under Chinese occupation. Sadhguru is quite right in equating the eating of
cows to cannibalism, because it is barbaric that you could have another
creature as your meal when you have exchanged memories with it and it has lived
under your roof. It is unacceptable to make the economic argument to oppose
beef ban, because we can talk economics for just about anything as anything can
be commercialized and there are people to buy it. I can’t say there is a lot of money to be
made by legalizing trade in wildlife because we don’t accept it as a matter of
principle and morals. Lastly, there are some loons claiming that veganism is
the solution to stopping cow slaughter. This I suspect to be the work of
sinister animal rights activists who are selective in their outrage and target
innocent vegetarians to give up on their food choices instead of working to ban
slaughter houses.
As of now, three Directive
Principles remain unenforced – the UCC, alcohol prohibition and ban on cow
slaughter, because they are the most contentious issues. If protecting the cows
in well maintained goshalas means
paying additional, but optional cess, let us do it. If subsidies can be given
for beef exporters, then let the government also offer support to those
protecting the cows and other cattle. There shouldn’t be a gender
discrimination in protecting cattle as both cow and bull are worthy of
protection. In finality, Hindus should learn to not compromise!
Anyone who wishes to
know more on the assembly debates on cow protection can access my notes here.
[1] Constituent Assembly Debates, Vol.
7, 24th Nov. 1948
[2] Madras High Court has the statue of
Sama Neethi Cholan along with the cow ringing the Bell of Justice.
[3] Dr. Sahadeva Dasa, India – A
World Leader in Cow Killing and Beef Export - An
Italian Did It in 10 Years: What the British Could Not Do in 200 years and the
Muslims in 800 years
6–7 (2013).
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