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Purnakala BK had moved to Nakkale, Mehakuna-6, Surkhet, 16 years ago after getting married to Tikaram Kami. Tikaram worked as a manual laborer in Mumbai. Their two sons studied at the nearby Nepal Rastriya Uccha Madyamik Bidyalaya. With some ups and downs, life was pleasantly passing them by.

Tikaram returned home from Mumbai in November 2013, and less than five months later, he went back.

After he left, Bhim Bahadur Pariyar, a Dalit man of the same locality was forced to file a complaint against Tikaram, his brother-in-law Tusliram Kami, Lok Bahadur Kami, Lok Bahadur BK, Deepak Kami and Mahabir Kami for cow-slaughter and consumption of beef. A local non-Dalit group had threatened to send Bhim Bahadur to jail for 12 years if he refused to file the complaint. As soon as the complaint was filed to the Area Police Office, Chinchu, Deepak Kami was arrested.

The arrest terrorized the Dalit settlement. Police officers started regularly patrolling their neighborhood. Purnakala requested that her husband return home because the police were searching for him, and in June 2015, Tikaram, Tulsiram, Lok Bahadur, and Mahabir returned to the village. A campaign was immediately launched to “imprison the cow eaters.”  On July 20, 2015, the four men were arrested after they went to the police station to inquire about the complaint against them.

A trial began at the Surkhet district court. Bhim Bahadur said in his statement that he had filed the complaint because Deepak Kami “sometimes messed up while stitching his clothes.” He confessed that the men hadn’t in fact, killed any cows, and the complaint was false. Nevertheless, on 19 February, 2016, district court judge Kailash Prasad Subedi used the statement given by Bhim Bahadur’s 14 year old daughter Basanti Damai to the police as the basis for a 12 year prison sentence given to Tikaram.

The other defendants got a clean chit. According to the civil code, the punishment for killing cows and oxen is 12 years in prison, six years in prison for being an accomplice in killing, two years in prison for causing injury to the animals, and a fine of two hundred rupees for “making the animals bleed.”

Purnakala was overcome with grief when she heard the news of her husband’s imprisonment.

She was determined to continue fighting for her husband’s freedom, and she sold their plot of land next to the road at a very low price to pay for the case to continue. She paid 50 thousand rupees in fees to the lawyer, reserved vehicles for those who went to the court as witnesses, and paid for their food and drinks as well. As the days passed, Purnakala’s loans continued to pile up. Unable to see his mother suffer, Purnakala’s fifteen year old son left his studies to work as a manual laborer in the city.

With the little savings she had, Purnakala took the case to the appellate court, hoping to get justice. But the court hearing led by chief judge of the appellate court Tej Bahadur KC and judge Gunaraj Luitel upheld the decision made by the district court of Surkhet. “Maybe the Kathmandu court will be kinder to the Dalits,” Purnakala thought, continuing to have some hope.

Cow-slaughter and the Casteist Judiciary

“The weight of crime is not determined by the reality of the situation but by how it is given meaning in a societal context,” writes Richard Quinney in his book The Social Reality of Crime. And the perception to consider any activity as criminal or not is the product of the societal behavior of the employees of the judiciary.

Citing lack of formal complaints from victims, Nepal Police often does not fully investigate crimes such as rape and untouchability. But cow-slaughter is an altogether different matter.

In June 2011,the police filed a complaint against Kumar Darji, Ram Bahadur Darji and Motey Rai of Khadbari-3, Sankhuwasabha. They were accused of slaughtering a calf belonging to Keshkumari Pokharel.

The witness and the doctor who conducted a post-mortem of the cow did not arrive even when the court asked them to be present to make a statement.

On July 8, 2011, Pokharel issued a statement in the district court of Sankuwasabha: “I only learned of the cow-slaughter after police informed me. I knew nothing of the incident before that.” But after a joint hearing by judges Cholendra Sumsher Jung Bahadur Rana and Jagdish Sharma Paudel, on 14 January 2016, the defendants looking for justice in Kathmandu were slapped with a 12 year prison sentence.

A joint hearing by Supreme Court judges Khilraj Regmi and Chandra Prasad Parajuli sentenced Sitaram Chamar of Jaishpur, Banke to 12 year imprisonment on 4 September, 2012,  stating that “if the defendant had not killed a cow, there was no reason for a complaint to be filed against him.” The witness and the doctor who conducted a post-mortem of the cow did not arrive even when the court asked them to be present to make a statement. In Sitaram Chamar’s statement to the court he stated: “ Police did not ask me to make a statement but simply made me sign a paper.” The Supreme Court decided on a prison sentence without taking statements from the witness, police or the doctor.

Between 2011 and 2017, there were a total of 727 cases of cow-slaughter in the district, appellate and supreme courts. According to the Supreme Court, during this time period, there were 456 cases in district courts, 190 in appellate courts and 71 in the Supreme Court. cow-slaughter incidents have apparently increased by 75 percent between 2011 and 2017.

17 people have received 12 year prison sentences, which is a total of 204 years in prison.

In the current fiscal year, there have been 34 cases of cow-slaughter in the Supreme Court with 43 defendants. Among the accused, 51 percent have been Dalit, 16 percent Tamang, 16 percent Magar, seven percent Muslim, seven percent Rai and three percent Chhetri. Among the 34 judges presiding over the cow-slaughter cases, 76 percent have been hill-Brahmin, 18 percent Newar, three percent Chhetri and three percent Muslim. Similarly, in the appellate court, among the 67 judges, 69 percent are hill-Brahmin, 20 percent Chhetri, seven percent Newar, three percent Muslim and one percent Gurung. Again, among the judges making the verdict in district court, 62 percent are hill-Brahmin, 20 percent Chhetri, nine percent Newar and three percent Tamang.

If the pending cases were to receive judgement proportionally with what has been served so far,  then 363 people will get 12 year imprisonment, which will be a total of 4356 years of prison time. Among them 185 will be from the Dalit community, which adds up to 2220 years in prison.

Out of the 71 cases in the Supreme Court since 2011, defendants in 50 percent of the cases have received 12 year prison sentences. 17 percent of the cases have been reversed, 18 percent partially reversed, while nine percent of the cases remain with partial claim and six percent remain without claim.

If the pending cases were to receive judgement proportionally with what has been served so far,  then 363 people will get 12 year imprisonment, which will be a total of 4356 years of prison time. Among them 185 will be from the Dalit community, which adds up to 2220 years in prison.

“What happens when the power structure is obstructed?” is Michel Foucault’s central question in his book State, Power and Socialism.  He claims that if power resides within a particular group, then dissent becomes impossible. The overwhelming dominance of non-Dalits in Nepal’s judicial structure and a subsequent  construction of power relationship based on this structure has rendered it impossible for Dalit groups to struggle against the prejudice of non-Dalits.

Based on the Hindu system, the special feature of Nepal’s Judicial tradition is the criminalization of work and the meting out of punishment based on the caste system. Political analyst and researcher Ahuti has said that Hindutva is fundamental to the caste system. The criminalization of Dalit community by using the case of cow-slaughter is a strong indication of the casteist judicial tradition.

Charges of cow-slaughter have forced Dalit youths to collectively spent hundreds of years in prison, and yet, the Dalit movement has not taken this as an issue. The source of power for Nepal’s nation-state has been the Hindu caste-system, and the dissolution of Dalit youths into the system instead of their rebellion against the structure is in line with Foucault analysis of how power systems work.

Taxation by Criminalization  

While discussing the interplay of criminal justice and class thinking, American professors Jeffery Reiman and Paul Leighton argue in their book The Rich Get Richer and the Poor Get Prison  that “what we call crime and the belittling of criminals is an idea organized around a decision.” What kind of work is deemed as crime and who is to be considered a criminal is determined by a decision. The policy makers making decisions are indoctrinated into the beliefs of the society that they grew up in.

Hundreds of years ago, Jayasthiti Malla issued a decree that a cow-herder was liable to the cow owner if he was unable to protect cattle. The cow-herder was responsible for paying for damages if a cow died. This system continued during the reign of Prithivi Narayan Shah.

During Shah’s reign, the tradition of criminalizing Dalits and other marginalized groups for charges of cow-slaughter in order to raise state revenue took root. After the political unification of the Gorkha state, according to Mahesh Chandra Regmi’s  A Study of Nepali Economic History, traditional Hindu ideas on caste, gender and cow-slaughter were legally enforced throughout the country.

Jayasthi Malla, 14th century king of Kathmandu Valley, introduced a system where cow herders were punished for harm to cows.

In 1806, Yagyanidhi Tiwari was tasked with the responsibility of enforcing the cow-slaughter ban in Bhadgaon (present day Bhaktapur). He had to raise 12 to 15 thousand rupees in tax revenue. He was told that he had to inform people accused of cow-slaughter about the fine, and that he could not offer any concessions. The contribution of cow-slaughter ban cannot be overlooked in terms of how much it increased the size of the state treasury.

In the Divya Upadesh, Prithivi Narayan Shah had expressed a desire to not let judicial revenue become a portion of the royal palace’s earnings. However, the revenue collected from ‘repulsive’ crimes was separated for the palace. The local workers of the government collected fines before a complaint was filed or the accused confessed to the crime.  A royal edict from 1806 directed to the people of Dolakha states that the accused can only be fined after a trial is conducted.

In 1809, a proclamation on cow-slaughter ban had enforced fines and capital punishment in  the area between Tamakoshi river and the Tista river as per the instruction given to Shivaraj, Kashiram and Rishi Padhyay. There were three gradation of fines: 50, 35 and 20 rupees. To enforce this edict, three tashalidar, one tahwildar, one bahidar, and six peon were hired. Their total payment was set at 180, 50, 50 and 120 rupees respectively. At this time Bhimsen Thapa was the prime minister and Giwarnayuddha Bikram Shah was the King.

Similarly, it was decreed in 1804 that cow-slaughter was banned in Solo, Khumbu and Chanku regions. The punishment of cow-slaughter was death penalty and the enslavement of the descendants of the person sentenced. The fines raised from people accused of cow-slaughter was called “Chokho Danda,” pure punishment.

A cow-slaughter ban and a prohibition on the consumption of the carcass of an already dead cow was announced in Pyuthanin 1810. Families who did not kill cows, but consumed dead ones, had to pay fined. Rewant had set the fine for consuming cow corpses at Rs 150.

Similarly, Subedar Ratan Singh Thapa had fixed the fine at eight aana per household and had managed to collect Rs 1500 from 3000 families.

In a journal for “The Royal Asiatic Society of the Great Britain and Ireland,” Brian Hodgson wrote in 1834 that the judiciary effectively functioned as the tax administration of Nepal. At that time, Birta owners, Jagirdars (the two categories of landowning classes in 19th century Nepal), and the state employees responsible for tax collection controlled the tax administration in the country.

The first Muluki Ain stated that if somebody knowingly used a weapon on a cow but did not kill it, then his wealth would be taken away if he was from a higher caste, and he would face the death penalty if he was from a lower caste.

The tax collection target was always set higher than the actual stipulated tax, and to meet the target they fined people accused of various crimes. Justice was in the hands of judges who extorted money out of people and continued to treat them as slaves. Judges were Brahmins who were religious officers appointed to protect the Asli Hindustana.

The first Muluki Ain stated that if somebody knowingly used a weapon on a cow but did not kill it, then his wealth would be taken away if he was from a higher caste, and he would face the death penalty if he was from a lower caste. The same code also stated that the murder of a cow-slaughterer was not punishable.

Following the footsteps of the first civil code, the 1990 constitution of and the 2015 constitution have continued to accept the status of the cow as the national animal. Dalits and other marginalized communities have faced the consequences of this by spending years in prison for their alleged crimes.  

Caste System, the root of the problem

If we fail to see cow-slaughter as connected the with caste system, it will become impossible to end the constitutional and legal basis of the criminalization of Dalit communities.

Hindus have created two major food-based hierarchies. The first principle is against meat consumption, which created a distinction between meat-eaters and vegetarians. The second principle created a distinction between meat-eaters who consumed beef and those who did not.

According to B.R. Ambedkar, the scriptural basis for the criminalization of cow-slaughter is weak. The idea of the inherent holiness of the cow is taken to be a justification for the cow- slaughter ban. Engaged in animal husbandry, it is likely that Aryans had respect for milk giving cows. But that in itself not enough to support the claim that they did not eat beef.

Sanskrit scholar and historian PV Kane writes in the History of Dharmasastra that it was unlikely that the cow was considered holy during the Vedic times. In the Rig Veda ( 10-86-14) 10 to 15 oxen were regularly cooked for the god Indra, and the offering of Ox, horse, cow and other animals was regularly made to the fire god. Cows were slaughtered using the double edged Khanda sword (Rig Veda 10-72.6). Not just the Rig Veda, evidence of cow-slaughter is found Taitariya Brahman, Aapistabda Dharma Sutra, Griha Sutra, Hiranya Griha Sutra, and Hiranya Sutra. Therefore, there is no basis to claim that Brahmins were not involved in cow-slaughter or beef consumption. Instead, Brahmins often used religion as a basis for engaging in frequent slaughtering of cows. There is plenty of evidence for this in the Kutdanta Sutra as well, which is a part of the Buddhist canon.

Stripping the hide from a dead cow. Once a cow dies, its body is devoured, by vultures, village dogs, jackals and other birds. On many occasions, as in this picture, low or out caste villagers remove the skin. In 24 hours, nothing of the animal is left but bones. About twice a year, bullock carts come through the villages to pick up the bones and take them to India where they are used for fertilizer. 1966-1968. Biruwa Guthi, Parsa

Up until the time of Manusmriti, when caste was codified, there was no ban on cow-slaughter (Manusmriti Book  5, Verse 18). Manu had classified crime into major and minor offense, under which cow-slaughter was classified as a minor offense. The main reason that Brahmins stopped eating beef is the 400 year long conflict between Hindus and Buddhists in ancient India. Buddhism was extremely opposed to any kind of animal slaughter. The farmers at the time grew fascinated with Buddhism. After that, a reformation started among the Hindus. The construction of Stupas and Buddhist idols began after Buddha’s death. The Brahmins imitated the Buddhists and started constructing temples in the name of various gods.

The Buddhist monks were meat eaters, and in order to posit themselves as revolutionaries, the Hindus banned cow-slaughter and started adopting vegetarianism. Evidence for this can be found in the inscriptions in Sachi of Madyapradesh, India, dated around 412 CE. One inscription reads: “…the one who violates the code, that person will receive the curse of cow-slaughter, Brahman’s murder and the curse from the five sins.” The Buddhists also consider the five sins to be major crimes.

French writer and sociologist Gabriel Tarde writes that people from lower classes imbibe the cultural practices of the upper classes. But Marxist thinker Antonio Gramsci has a different take on this, he claims that in order to maintain its power. the ruling class deems only its own culture, belief systems and values to be legitimate, and the relationship between upper and lower classes is one of coercion.

In India and Nepal, caste-Hindus have managed to impose their values on everybody else, criminalizing all that is deemed deviant. Similarly, the way Hindus have used the “creation story” of the four Varnas, where eating habits are one of the main distinctions, to differentiate between upper-castes and “untouchables.”   Even after the promulgation of the supposedly progressive 2015 constitution, Hindu views and values continue to hold people from certain castes and ethnic groups as criminal. Is this supposed to be the enforcement of secularity or is it the preservation of the so called Sanatan (timeless) Hindu culture?

Translated by Sandesh Ghimire

Shiva Hari Gyawali is a campaigner for social justice and Human Rights, especially interested for the rights of Dalits and marginalized communities.

Twitter @Bankaila