The Allahabad High Court has denied bail to a man accused of cow slaughter in a detailed order propagating cow protection and pushing for making cow protection a fundamental right for Hindus. The single-judge bench of Justice Shekhar Kumar Yadav denied bail to one Javed, who was accused under Sections 3, 5 and 8 of the Prevention of Cow Slaughter Act.
The counsel for the applicant submitted that the charges against him were false and that he was not at the place of incident and was falsely implicated by the police. He also stated that no cow either dead or alive was recovered from him, hence, he should be granted bail. Meanwhile, the state counsel opposed the bail stating that the applicant, along with other accused were found with some dead cows slaughtered and they ran away from the scene on being discovered.
The court, in its initial observations stressed upon the cultural importance of cows and how cow as an animal is sacred in Indian culture. The court also spoke of the beneficial properties of cow urine and how cow provides us with milk. The court then said that Punjab Kesari Maharaja Ranjit Singh had in his reign made cow slaughter an offence punishable with death. The court also claimed that scientists believe that cows are the only animals that exhale oxygen! Interestingly, the same claim was made by former Uttarakhand Chief Minister Trivendra Singh Rawat a couple of years ago, but was summarily trounced by scientists saying that no animal can exhale oxygen.
The court further quoted Vedas and Hindu deities and their mythological stories around cows. Basically, most of the court’s observations in this bail matter are about Indian culture, reverence of cows, importance of cows to Hindus, mythology, historical references and unscientific claims.
The court then stated that keeping these references in mind, the cow should be declared a national animal and cow protection be declared a fundamental right for Hindus because it is known that when India’s culture and belief systems is in danger, the country becomes weak. The court then said that eating cow meat cannot be a fundamental right.
The court further said that strict laws should be made to punish those who talk about harming cows. "Jab gaaye ka kalyaan hoga, tabhi desh ka kalyaan hoga (only if cow is revered, country will prosper)," the order said. The court pointed out that the Supreme Court has also given judgements keeping in mind protection of cow and at least 24 states have laws aimed at protecting cows.
The court also observed that gaushalas do not sometimes take proper care of cows and leave diseased cows in the roads to die. “There are hundreds of examples in our country that whenever we forgot our sanskriti, the foreigners attacked us and made us slaves and even today if we do not wake up, then we should not forget the autocratic Taliban invasion and occupation of Afghanistan,” the court said.
While denying bail to the applicant, the court said, "In such a situation, when everyone takes a step forward to unite India and support its faith, then some people whose faith and belief are not at all in the interest of the country, they only weaken the country by talking like this in the country. In view of the above circumstances, prima facie offense is proved to be committed against the applicant.”
The court while justifying the refusal of bail stated that this is not he applicant’s first offence of cow slaughter which has disturbed harmony in society, and if he is released he will repeat the same offence and will disturb the harmony in society. The court found the bail application to be baseless and rejected the same.
The complete order may be read here:
A problematic order
A complete reading of the order will indicate that the order is merely a preaching about importance of Indian culture, importance of cows to Hindu religion and how in a diverse country like India, all religions respect each other’s beliefs and culture. Much less has been explored by the court about the case, the material brought on record by the prosecution and the facts and circumstances. Even the arguments of the counsels have been briefly mentioned. The facts have been mentioned in detail but the order does not deliberate upon them, thus leaving little room for justification of refusal of bail. In the concluding last paragraph, the court does mention that this is not the applicant’s first offence, and that is the reasoning of the final decision of the court.
Apart from this, the issues that emerge from this order is that it glorifies cow protection and elevates it to the stance of a fundamental right of ‘Hindus’. Needless to say, as the Hon’ble judge himself must be aware of the many incidents that have taken place across the country since cow vigilantism has erupted and gained traction leading to loss of many poor Muslims, who, in many cases were not even dealing in cow meat. Even if they were acting against the law by committing any offences under the UP Prevention of Cow Slaughter Act, the law deals with the offender in a lawful manner and not a mob.
The order outright seems to declare cow protection as some birth right of Hindus they are meant to pursue, and making cow protection a part of Indian culture. The court needs to be reminded of the many cases where over zealous “cow protectors” who already have presumed cow protection to be their fundamental right, have lynched and attacked people hailing from economically weak, marginalised and minority communities, and that there is no specific law to deal with such lynching.
The court also called for laws to promote cow protection, when majority of the states already have laws for cow protection and against cow slaughter, while there is a clear void in criminal law for the offence of mob attacks and lynchings which have been on the rise.
Cow vigilante violence has become an issue on its own and a Human Rights Watch report states that Between May 2015 and December 2018, at least 44 people—36 of them Muslims—were killed across 12 Indian states. Over that same period, around 280 people were injured in over 100 different incidents across 20 states.
In August 2015, Anas Qureshi, 17, Arif Qureshi, 26, and Nazim, 15, were beaten to death in Kaimrala village of Dadri town, UP after they were found transporting two buffaloes.
In September 2015, a mob killed Mohammad Akhlaq, 50, in Uttar Pradesh state, and critically injured his 22-year-old son, over allegations that the family had slaughtered a calf for beef.
In October 2015, Noman was beaten to death at Sarahan in Himachal Pradesh over suspicions that he was smuggling cows. Case was registered against the perpetrators 2 months later.
In April 2017, Pehlu Khan a dairy farmer, and his two sons were attacked by a mob in Alwar, Rajasthan accusing them of smuggling cows. Pehlu Khan succumbed to his injuries two days later.
In November 2017, Umar Khan was allegedly shot by cow vigilantes while he was transporting cattle to his home in Bharatpur district with fellow villagers Tahir and Javed. The police instead of looking for the perpetrators lodged a case against the three for being cow smugglers. Finally in January 2018, the police arrested 8 people and charged them for robbing Umar Khan, killing him and throwing his body on railway tracks.
Mohammad Qasim, 45, was beaten to death on June 18, 2018, by a mob that accused him of attempting cow slaughter near Pilkhuwa village in Hapur district.
In July 2018, Akbar Khan, 28, was killed by a mob in Alwar, Rajasthan and succumbed to his injuries as the police delayed taking him to the hospital and allegedly took him to the police station first and beat him up, in his precarious condition.
These are only handful of such incidents where cow vigilantism has wreaked havoc and created a fear psychosis amongst the Muslim community, especially the poor and marginalised.
The Supreme Court, in Tehseen Poonawalla v. UOI (2018) 9 SCC 501, while ruling on issues like mob attacks, including cow vigilantism, said, “Hate crimes as a product of intolerance, ideological dominance and prejudice ought not to be tolerated; lest it results in a reign of terror. Extra judicial elements and non-State actors cannot be allowed to take the place of law or the law enforcing agency.”