On December 4, the Assam government announced that it would ban the serving and eating of beef in restaurants, hotels or public places in the state. While no draft of the bill is publically available and the law is yet to be implemented, restaurants in Assam have already stopped selling beef.

If passed, the law would become the first of its kind in India. There is no other state in India that selectively bans only the consumption and serving of beef in public places. Notably, cattle slaughter is still legal in Assam.

Legal experts to whom Scroll spoke were unanimous in the view that such a ban would be unconstitutional because it would violate the right to choice of food, which has been held to be part of the fundamental rights to freedom and privacy guaranteed by the Constitution.

The ban seemingly has no connection with cattle slaughter, which Article 48 of the Constitution recommends should be prohibited for economic reasons. In the absence of any clear articulation of the objective of the ban by the Assam government, it is uncertain how it could pass off as a reasonable restriction on the freedom to eat or the right to privacy.

Article 48 and anti-cattle slaughter laws

Most Indian states and Union territories regulate or outright prohibit cattle slaughter. Such restrictions are justified by Article 48, which speaks of the “organisation of agriculture and animal husbandry”. It is part of the Directive Principles of State Policy that are guidelines for governments to follow to promote social, economic and political justice. Unlike other parts of the Constition, however, the Directive Principles are not legally enforceable.

Article 48 states that “the State shall endeavour to…take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle”.

Lawyer, scholar and writer AG Noorani wrote that Article 48’s text promotes cattle preservation for agricultural and economic purposes. However, the underlying intent, he noted, leaned towards appeasing Hindutva sentiments, sidestepping secular values.

States and Union territories that ban cattle slaughter also heavily restrict the possession and sale of beef within their territories as well as the transport of cattle outside their territories. While such restrictions are driven by religion-based politics, the legislation itself does not refer to religion-based reasoning. Instead, the rationale is couched in the reasoning of Article 48 purportedly intended to improve cattle husbandry.

The only time a law restricting the sale of beef has explicitly referred to religion was in Assam in 2021. In August that year, the state’s legislative assembly amended the Assam Cattle Preservation Act to ban the sale and purchase of beef and beef products in areas “predominantly inhabited by Hindu, Jain, Sikh and other non-beef eating communities” or within 5 km of a temple or a Hindu religious institution.

Laws prohibiting cattle slaughter have been deemed constitutional by the Supreme Court by relying on Article 48. The court has upheld the bans on slaughtering cows, calves and cattle by emphasising their agricultural and milk-producing value. The religious sentiment that actually drove much of the drafting of these laws has been referred to in passing by the court but not cited as a basis for its decision-making.

However, in 2016, the Bombay High Court had struck down provisions of a Maharashtra law that banned the possession of beef from cattle slaughtered outside the state. The court’s rationale was that possessing and consuming the food of one’s choice “is part of an individual’s autonomy or his right to be left alone”. Prohibiting the citizen from doing so would therefore, the court ruled, violate their right to privacy and personal liberty.

Representational image. Credit: Sam Panthaky / AFP

Unconstitutionality of Assam’s ban

Several legal experts that Scroll spoke with have called any proposed ban on the serving and eating of beef in public places unconstitutional for reasons similar to the Bombay High Court’s 2016 judgement – that it violates the fundamental rights to privacy and personal autonomy.

Some lawyers emphasised the violation of freedoms under Article 19 of the Constitution. According to Supreme Court and Kerala High Court advocate and writer Kaleeswaram Raj, the Assam government’s decision “cannot pass the constitutional muster”. This is because, he told Scroll, “it would be a divisive law meddling with an individual’s right to sell or consume food of her choice, which is only her fundamental right”.

Senior advocate and former Member of Parliament from Maharashtra Majeed Memon agreed. He acknowledged that all freedoms are subject to reasonable restrictions under Article 19 this would not pass that test. “In my view, the banning of eating beef in public spaces would breach the right to choice of food,” he said. “It is purely a private matter what one eats.”

Legal academics that Scroll spoke with highlighted the ban’s abrogation of the right to privacy. This right was recognised by the Supreme Court as part of the fundamental right to life and liberty under Article 21 of the Constitution in a landmark judgement in 2017.

Legal scholar and academic Faizan Mustafa, Vice-Chancellor at the Chanakya National Law University in Patna, cited the judgement’s recognition of culinary freedom – the decision regarding what one should eat – as falling within the realm of the right to privacy. “What you eat is private and the state cannot intervene in such private choices,” he said.

Legal academic Sumit Baudh pointed specifically to the opinion written by Justice DY Chandrachud in the privacy judgement. “As per Justice Chandrachud, what and how one will eat are choices that are made within the privacy of the mind,” said Baudh. “Further elaborating on safeguarding privacy in public places, Justice Chandrachud stated that privacy is not lost or surrendered merely because the individual is in a public place.”

Baudh concluded that “an indefinite, complete ban on serving and eating beef at restaurants, hotels or public places will likely infringe Articles 14, 19(1)(g) and 21 of the Constitution.” These three articles are known as the “golden triangle” of the Constitution because they guarantee equality, freedom and the right to life and liberty – considered the foundational values of India's constitutional framework.

Article 14 guarantees equality before the law, Article 19(1)(g) provides the right to practice any profession or to carry on any occupation, trade or business, while Article 21 guarantees the right to life and personal liberty.

Mustafa asked what the objective of the ban was. “If the goal is to check cattle slaughter – which would be covered by Article 48 – why doesn’t the Assam government just ban cattle slaughter, like other states have done?” he asked.

Kaleeswaram emphasised that such a ban would be unconstitional. “Such decisions are antithetical to the egalitarian society envisaged by the founders of the Constitution,” he said.