Cows and Constitutionalism: Writ Petitions in the Indian Republic

In 1958, three thousand Muslim butchers filed a writ petition before the Supreme Court of India challenging the constitutionality of the new cow protection laws. Cow slaughter had been a volatile political subject in north India since the 19th century and was frequently the cause of violent clashes between groups of Hindus and Muslims. Chief Justice Subbarao therefore commended the petitioners for making their claims without ‘the heat of communal passion and in a rational and objective way as a constitutional issue should be’.

The 1958 petition was novel in both its form and content. This paper examines the changing relationship between communities and the state in India through the transformation various petitioning practices by the proponents and opponents of the cow protection movement. Scholars have shown how these conflicts were locally managed through appeals to and interventions by the colonial state, which claimed to be neutral. The cow protection movement had generated mammoth petitions in the 19th century in order to demonstrate the strength of public feeling to the colonial government. Hindu revivalists emphasized both the sacredness and importance of the cow, while Muslims argued for the necessity of cow sacrifice on Eid and the right to enjoy their own property.

Independence and the enactment of the constitution significantly changed the contours of the debate, propelling the votaries of cow protection into legislatures while simultaneously limiting Muslim representation. However, the adopting of fundamental rights and broad powers of judicial review created a new domain of politics and required parties to negotiate new terrains of individual rights, economic development and secularism. Challenging accounts of colonial continuity, this paper argues that the novelty and unfamiliarity of constitutional litigation created uncertainty among all parties, and produced innovative strategies and new languages of politics.