Beefed-up curbs, feeble resistance

The restrictions on beef consumption are part of the same narrative that legitimises ‘offence’ as a tool to curtail rights and freedoms. The legislatures, the courts as well as the public are all guilty of giving credence to such narratives

October 09, 2015 01:56 am | Updated December 04, 2021 11:34 pm IST

Invariably, there are times in a Constitution’s life when its very fundamentals are under threat, times when the technicality of laws made under the powers of that Constitution are the very weapons used to undermine its foundations. Rarely do foundational threats to Constitutions come as sudden events, they often build up as liberties and freedoms are incrementally compromised. We are now perilously close to a moment where this is true of the Constitution of India as well.

Anup Surendranath

From the perspective of the rule of law enshrined in the Constitution, it would be naïve to think that >Dadri happened overnight. It is important to confront the tame manner in which rights are protected in this country and the ease with which the state can trample upon liberties and freedoms. Worse, Dadri is also a stark reminder of the extent to which we have surrendered our rights to the state. At the heart of >Mohammad Akhlaq’s lynching is a group that has violently asserted a claim not to be offended, a legal regime that, through anti-cow slaughter laws, has given legitimacy to this claim, and a society that has allowed the state to chip away at the liberty of its people over the decades.

‘Being offended’ has emerged as an extremely effective ground for curtailing liberties and freedoms. Not only does ‘being offended’ serve as a political, religious and cultural tool, it has also crept into constitutional adjudication. Groups that represent various political, cultural, and religious interests routinely invoke this idea of ‘being offended’ to infringe upon other’s rights by resorting to the cliché that rights are not absolute.

Offence not a valid defence for curbs Of course, rights are not absolute but people are mistaken to assert that ‘offending the sentiments’ is a sufficient justification for curbing constitutionally guaranteed freedoms. Often, this claim of being offended is backed with threats of violence if the offending material is not withdrawn; we have seen enough of these threats being carried out. Unfortunately, our governments have been more than content to give in to these kinds of threats and often sacrifice the freedoms involved.

Irrespective of whether or not violence is used as a threat, normalising this idea of ‘offence’ as the basis for protesting against the exercise of rights is dangerous for a democratic society. Be it protesting against Mira Nair’s Fire ; Taslima Nasrin’s Lajja ; or the latest round of objections to the play >Agnes of God — invoking this idea of ‘being offended’ as the basis to restrict rights cannot be considered legitimate for some and illegitimate for others. The more we invoke this idea of ‘offence’ and maintain our silence when it is invoked, the more we legitimise it. The result of legitimising this idea of ‘offence’ is that sections of society come to believe that they have a ‘right not to be offended’. And when this imagined right is seen as being infringed upon by some members of the society, there is an increasing tendency to enforce it through violence. Our disappointing reactions to the cold-blooded murders of rationalists like >Narendra Dabholkar , >Govind Pansare and >M.M. Kalburgi are tragic examples of the extent to which we have come to accept this ‘right not to be offended’.

You only need to watch some of the television channels that beam content into our homes to understand the extent to which we have internalised this right ‘not to get offended’. As the consumers of content on these channels, we are happy for them to self-censor and remove words like sex, beef, shit, vagina and lesbian/gay. Perhaps more worryingly, we seem to be increasingly comfortable with giving our rights away to the state without even demanding the most basic protections in return. The >widespread support for Aadhaar is a classic example of this. And so is our tacit complicity with the extensive surveillance regime that has been put in place over the years with hardly any safeguards.

In these contexts, we eagerly accept the state’s narrative — that these restrictions are for our protection — without really reflecting on the manner in which we are making ourselves extremely vulnerable to state interference into our most private spheres. We seem to be unconcerned that through the Aadhaar scheme and its linking to a vast array of services, we are handing over a whole lot of information about our lives to the state — information it can access and use without any checks, information it has no rights to access.

Unfortunately, prioritising the ‘right not to be offended’ has influenced constitutional adjudication as well. The Supreme Court’s stamp of approval in March 2008 on >banning the sale of meat in Ahmedabad during the Jain festival of Paryushan is a perfect example. The basis for restricting the rights of butchers in that case was “respecting the sentiments of a particular section of society”. That consideration has no constitutional basis and today we find ourselves burdened with this decision that governments are happy to exploit.

Another example is the Supreme Court’s approval in March 2004 for an all-year ban on sale of fish, meat and eggs in Rishikesh, like the ones that had existed in Haridwar and Muni ki Reti for many years. The Supreme Court invoked the dietary preferences of pilgrims visiting these towns as sufficient justification for such a ban. The Supreme Court’s freedom of speech jurisprudence is replete with such attempts aimed at preventing offence to the sentiments of others. The latest instance of this was Justice Dipak Misra’s judgment in the Supreme Court that artists cannot use abusive words, particularly against Mahatma Gandhi, in the name of artistic freedom.

The attack on our freedoms and liberties has also been facilitated through our deafening silences when the foundational civil liberties have been under attack. India’s legacy in its efforts to combat extremist violence of all sorts is characterised by torture, impunity and a persistent state of exception to the rule of law. Through draconian instruments like the Armed Forces Special Powers Act (AFSPA); the Terrorist and Disruptive Activities (Prevention) Act (TADA); the Prevention of Terrorism Act (POTA); the Unlawful Activities Prevention Act (UAPA) and organised crime legislations that have all disappointingly found the approval of the Supreme Court, the state has managed to play on our fears and convince us that the only way to achieve security is by sacrificing the rights of some. Large-scale violence with the complicity of the state machinery — be it in Nellie, Delhi, Bhagalpur or Gujarat — has seen far too little legal and political accountability. As a society and a legal system, we have often sent out the message that the most inhumane and cruel forms of violence will be forgiven and forgotten.

Imprimatur of law and courts The story of the >banning of cow slaughter and the restrictions on the consumption of beef follow a very similar trajectory. Different States have different provisions on cow slaughter in terms of the kind of cattle that can be slaughtered (if at all) and when they can be slaughtered in terms of their utility in agriculture. While State legislation in the 1950s imposed a complete ban on slaughter of cows and a partial ban on slaughter of bulls, the scope of the ban has increased over the decades. Relatively recent pieces of legislation like those in Gujarat (amended in 1994), Madhya Pradesh (2011), and Maharashtra (2015) contain a complete prohibition on the slaughter of cows, bulls and bullocks.

While the Supreme Court, in its early judgments on such laws, was clear that a complete prohibition on slaughter of cows, bulls and bullocks would be unconstitutional, it later proceeded to uphold Gujarat’s complete ban in October 2005 through a decision of a seven-judge bench. Since constitutionally all cow slaughter laws have to be justified in terms of agricultural interests — like Article 48, that forms a part of the Directive Principles of State Policy — the Supreme Court accepted the Gujarat government’s justification that all cattle, irrespective of their agricultural utility, need to be kept alive in order to use their dung as manure.

Another cause for worry in the pieces of legislation from Gujarat (amendment in 2011) and Maharashtra is the prohibition on the possession of beef per se and not just beef that is in contravention to that State’s Act. While courts are yet to rule on the validity of these provisions, it basically means that individuals in these States cannot consume beef that is sourced from States that permit cow slaughter. Our own reactions (or lack of it) to these measures and the Supreme Court’s approach to anti-cow slaughter legislation have sent the message that the protection of the cow has some sort of an exalted constitutional status. It is time we recognised that the Constitution does not protect the cow as a religious symbol.

In the contexts discussed above or countless others, we as a people have just not demanded sufficiently robust justifications from the state for infringing our rights. We have also placed our sentiments at too high a pedestal in the public discourse. Unfortunately, the courts have also not moved beyond standards of judicial review that often make it easy for the governments to justify draconian and outlandish measures in the name of national security, development and protecting the sentiments of certain sections of society. One suspects that the elite have never really protested because there is a comfortable indifference among their part about these infringements, an indifference that arises from a misplaced belief that those will not come to haunt them. But then, suddenly, the lynching of Mohammad Akhlaq threatens to destroy something fundamental to our moral fibre as individuals and as a society. And, as we desperately look for answers and explanations, we will have to start by acknowledging that we have given up too much, questioned too little and stayed silent for far too long.

( Anup Surendranath teaches constitutional law at National Law University, Delhi )

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