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Cultural and religious symbols can both be sacred and offensive. Sensibilities surrounding them are so manifest that, often, constitutional law has had to affirm or negate such symbols, mainly to address their attendant social tensions.

As an enduring Hindu cultural symbol, the cow has been a source of tension between Hindus and Muslims; has been put to bellicose use and sometimes even served as an agenda for nation building.

Judicial pronouncements have not only offered protection to the cow, but also validated a broadening of its scope and extending its application, as in Gujarat.

One of the main sources for the legal validation for ‘cow protection’ in India is the Constitution’s Article 48, stemming from the Directive Principles of State Policy. It affirms the protection of the cow thus: “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.”

This provision proves that constitutional law often accommodates customs and cultural symbols. However, by its inclusion under the “directive principles”, the Constitution has also made it optional and non-binding.

Analogous to India’s cow protection is the prohibition of pig-rearing and pork eating in Israel and its legal backing by the Israeli Supreme Court and Knesset. (Symbolic Constitutionalism: On Sacred Cow and Abominable pigs; Daphne Barak-Erez, Tel-Aviv University, SAGE).

Barak-Erez makes a compelling argument about how the nature of legislative process, in this context, has been determined – both in India and Israel – by the views of the majority, not of the minority.

While we see a general inclination towards applying the cow-slaughter ban in India more robustly, in Israel, the prohibition on pigs has been declining. Both these legislative reasoning, as Barak-Erez points out, reflects the cultural beliefs of the majority.

In Israel, the easing of prohibition on pigs is due to a growing demand for its reversal from within the majority Jewish secular establishment. The prohibition originally stemmed from Jewish religious attitudes towards pork and the condemnable humiliation they suffered in Europe when they were forced to consume it.

Three issues arise from such legal affirmation to the protection of the cow. One, there has been not much debate on what this means in terms of privileging one set of belief. As University of Chicago sociologist Joseph Gusfield puts it and which Barak-Erez quotes, “It (legal protection of cultural symbols) demonstrates which cultures have legitimacy and public domination, and which do not.”

Therefore, there needs to be a strictly legal debate (not a political or a popular debate, which is sure to go awry) over what it might mean to constitutionally affirm one value set vis-à-vis another.

Secondly, in the Indian context, it is worth asking how much of the cow’s sacred status is an “economic” construct in relation to its religious significance. It can be reasonably argued that the cow’s status as a revered animal symbol stems from its economic value.

It is not merely a metaphorical allusion to the concept of motherhood, resulting from an association between the cow’s udder and human motherhood’s life giving breast-feed. For, no such sacred status has been accorded to more milch-productive cattle, such as the buffalo.

The economic basis of the cow’s sacred status is clear from Gokarunanidhi, the 1881 seminal text of cow protection movement by Swami Dayanand and translated into English as “The Ocean of Mercy” by Durga Prasad in 1889. The cow, it upheld, was a useful animal, which gave milk and numerous milk products on which the rural economy runs; milk and milk products lessen consumption of staple grains and above all, the cow was essential to the practice of agriculture. Together, the economic theory ran, all these were essential for national prosperity.

This economic construct may have led to a reversal of the older Hindu beef-eating tradition evident in Manu Smriti and Vashishta’s references. The law needs to grapple with the traditional economic argument in light of modern animal husbandry business and the trade-off with the revenue-rich meat trade.

In Gujarat, there have been concerns over the financial implications for a ban on cow slaughter among Muslims from a religious point of view. Sacrificial slaughter of goats during Bakri I’d could be unaffordable, as calves tend to be cheaper when the festive demand for goats peaks, and this is a big reason for the poor turning to calves for sacrifice.

Sufficient reason exists, it is presumed, to view beef-eating as a non-essential religious practice for Muslims. Conversely, cow worship is not a central Hindu practice when viewed from its varying religious significance. In Bengal, for example, the cow has no such eminence. And lower caste Hindus, such as Dalits, routinely eat beef. Hinduism itself is not a religion of uniform practices and rituals, and exhibits a wide diversity of sub-beliefs, traditions and customs in contrast to the largely standardised religious norms of the Semitic religions.

The Muslim religious community, on the other hand, has acted with supportive compliance to declare that cow slaughter is not a religious requirement and therefore ought to be avoided to respect Hindu sentiment, as evident from sermons issued by Darul Uloom in Deoband, the seat of Subcontinental Sunni Islam.

This unambiguous religious opinion from a respected seat of Islamic theology in India forcefully thrusts the issue of cow slaughter in the cultural domain. As such, it provides new scope to address the issue as one of cultural conflict rather than religious discord.

The third issue has to do with plain individual liberty. Should or can the state dictate what people can or cannot eat?

It is possible to argue that the state can and must intervene in case dietary habits impinge upon survival of species from an environmental point of view. Therefore, whaling is internationally banned but its continuance in Japan, where whale meat has special cultural sanctity, is often a sticking point in international environmental law. Whales continue to make up nearly one-quarter of the Japanese diet.

However, should ordinary cattle qualify for the same kind of protection as near-extinct species on environmental grounds, when their meat forms the basic ingredients of non-vegetarian diets and whose overall population is under no threat of extinction? Article 48 clearly has an environmental basis, read with 48A (inserted after a later amendment). However, the fact that such a privilege of protection to cattle under Article 48 is not bestowed on poultry or other animals confirms its ethno-cultural basis.

In the liberal tradition, can those who culturally consume beef (Christians in Mizoram included) continue doing so in a manner that it doesn’t offend Hindu sensibility? For example, by consuming and slaughtering the animal in private spaces without making it obvious. This practice would require both beef-eaters and cow worshipers to commit to a practice of tolerance of each others’ cultural sensibilities. A blanket law affirming the cultural symbol of one set of people – such as the cow-slaughter ban – precludes such a scope.

By subjecting Muslims or others who consume beef to a cow-slaughter ban, are they also being made to passively worship the cow? Does it compromise the very neutrality of the law? A versatile legislative process will find many grey areas to grapple with.

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