- 1 ABSTRACT
- 2 FREEDOM OF RELIGION VS. DPSP?
- 3 TUSSLE BETWEEN JUDICIARY AND EXECUTIVE
- 4 STATE OR UNION’S POWER?
- 5 ADMINISTRATIVE BODIES/PERSONNEL
- 6 NON UNIFORMITY & INEFFECTIVENESS OF LAWS
- 7 COLLAPSE OF THE RULE OF LAW?
- 8 DELEGATED LEGISLATION IF THE CENTRE IMPLEMENTS A LAW
- 9 CONCLUSION: NEED FOR ONE CENTRAL LEGISLATION?
- 10 CITE THIS WORK
- 11 AUTHOR DETAILS
Cow protection has been a controversial topic in this country. The government in the past have framed laws, imposing a ban on distributing and eating beef. There have been many administrative debates on the beef ban and judicial discussion on the administrative power under Part IV of the Indian Constitution Act. This paper highlights the irregularity in different state law and the legal discourse arising out of it. The paper concludes that the discourse around the issue of the beef ban can be solved through the implementation of central legislation imposing such a ban.
FREEDOM OF RELIGION VS. DPSP?
Ban on cow slaughter has been one of the most controversial topics in India even before the drafting of the Constitution (the “Act”). The debate was whether it should be included in Part III of the Act as a Fundamental Right; and after heated discussions, the middle ground reached was it being included in Part IV of the Act, i.e. a Directive Principle of State Policy (“DPSP”) which would guide the state in policymaking, but could not be enforced in any court.
In Hanif Qureshi v State of Bihar, the Supreme Court ruled that the total ban on the slaughter of bovine animals was fair, legal and in accordance with the principles of the directive laid down in Article 48 of the Constitution of India. Further, a general ban on keeping uneconomic cattle under its jurisdiction was unjustified and violated the right of the butcher to freedom of trade and occupation. Revisiting its own decision of 1958, the Supreme Court overruled, its almost 50-year-old reasoning that ceasing to produce milk, breed or be used as a drought animal did not make bovine cattle useless. These judgements show the court’s understanding that Part III of the Act need not necessarily override Part IV of the Act, thus there must be utmost effort to preserve slaughtering of cattle. This implication of the judiciary is perverse with the executive’s ideals, the latter is elaborated below.
TUSSLE BETWEEN JUDICIARY AND EXECUTIVE
Separation of powers is one of the most fundamental administrative law principles. In India, the executive and the judiciary are not in watertight compartments, but they overlap with regards to certain procedures.
The BJP government has kept the prevention of slaughtering of cows as an important political agenda to appease the Hindu majority, were finally successful in the passage of a nationwide ban for cow slaughter in spite of stiff opposition from States like Kerela, West Bengal & the North-Eastern states. The Environment Ministry in May 2017, issued a notification titled ‘Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017’ (“the Rules”), which banned all types of cattle slaughter nationwide except in the state of Jammu and Kashmir. Its definition of cow included all types of bovine animals like bulls, bullocks, buffalos, camels, etc. This notification has laid down certain rules and limitations on the sale of cattle in the animal market. Here, it is the responsibility of the purchaser and seller to ensure that the animal would not use for slaughtering. Section 11 of The Prevention of Cruelty to Animals Act, 1960 (“the PCA Act”) says that any act committed in the course of killing an animal for human food does not come within its purview.
In light of the turbulent history of the Judiciary and Executive acting in consonance, it comes as no surprise that after severe opposition to this proposed legislation, the judiciary decided to stay and suspend the law banning the sale of cattle for slaughter nationwide. More often than not, while implementing the laws, the Judiciary is seen to curb that policy or law, which subsequently results in the Executive’s attempt to strip the Court’s power to do so.
While the Courts recognize it as an executive function, the soundness and legitimacy of the resultant Act come under the purview of the judiciary, who serve as a check on the laws enacted by the Executive. The Delhi High Court has held that the issue of ban on slaughter of cows is beyond the domain of judicial decision making and is a policy matter in which the courts under the doctrine of separation of powers are not entitled to transgress. The Court further in Bal Ram Bali v Union of India, and Akhil Bharat Goseva Sang v State of A.P., held that policymaking is not in the domain of the judiciary and it is not open to the Court to strike down such policy decisions until and unless a serious and grave error is found on the part of the government.
STATE OR UNION’S POWER?
A rather thought-provoking question arises with respect to the Rules is that notwithstanding the provisions relating to a breach of fundamental rights, does the Central government (“Centre”) even enjoy the power to frame laws regarding the ban of cow slaughter. To further substantiate, there are plenty of provisions in the Constitution which have been used as a justification for lawmaking.
There is nothing in the Union List pertaining to cattle ban, but this is where Article 48 and 51-A of the Constitution, come to the Centre’s aid. Article 48, was supposed to be in Part III of the Constitution, but after several discussions in the Constitutional Assemble Debates was legislated in the DPSP. Also, a combined reading of Article 246, Article 249, & Article 254 gives the Centre unbridled power to legislate upon cow slaughter either through the Concurrent List, national interest, or the repugnancy clause, respectively. Under Schedule VII, Entry 14, 15, & 16 of the State List provides each State government with the authority for preservation, protection and improvement of stock and prevention of animal diseases; veterinary training and practice. Cow vigilantism, which occurs due to the Hindu-Muslim divide on banning of cow slaughter, allows for the State government (“State”) to claim jurisdiction to legislate by bringing the same under Entry 1 of State List i.e. “public order”. This can be illustrated through the judgement of the Allahabad High Court in the case of Saddam v State of Madhya Pradesh, wherein it was held that the slaughter of cows in public place disrupts public order and not only law and order. Under the Concurrent List, Entry 17 and 28 gives both the Centre & the States the power to legislate on prevention of cruelty to animals and transferring infectious/contagious diseases.
The Central legislation in place is the PCA Act and the Rules. This is opposed to states like West Bengal, Arunachal Pradesh, Meghalaya, Mizoram, Nagaland, Kerala and Sikkim where there is no specific legislation prohibiting slaughter. In lieu of the above, one can interpret both the Centre & the State to make laws. But the courts have interpreted these legislations to mean that the banning of cow slaughter is a state subject.
The aforementioned 2017 Rules banning cow slaughter are made under Section 38(1) of the PCA Act, which enables Central government to frame rules in line with objectives of the PCA Act. Rule 22(e)(i) prevents selling the cattle for slaughter is against the 1960 Act which does not prevent slaughtering of animals, instead allows for it, as substantiated by Section 11. Hence, legally there are question marks over the legality of the Rules. The Supreme Court upheld the Madurai bench’s direction of suspending Centre ban on sale and purchase of beef in India and making it applicable to rest of India as the law itself allows for slaughtering.  Bal Ram Bali v Union of India held that each state is free to ban cow slaughter.
On a national level, the Centre has appointed a National Commission for cattle, inter alia, to review the relevant laws of the land (Centre as well as States) which relate to protection, preservation, development and well-being of cow and its progeny and suggest measures for their effective implementation. On a state level, each State barring a few, have appointed and given inspection/penal powers to inspectors and officers. The different state Acts like those in Andhra Pradesh, or Assam, prohibit certain slaughtering of cows, but allows slaughter on a certificate issued by a competent authority. In fact, almost all state Acts appoint inspectors or veterinary officers to inspect premises, including powers to arrest, fine and imprison the offenders. It allows the authorities to enter and inspect any premises on reason to believe that an offence is committed. It is a cognizable offence along with a fine/six-month imprisonment.
NON UNIFORMITY & INEFFECTIVENESS OF LAWS
The centre government enactments and the recent draft on Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2018 (adds a few more things to the 2017 Rules) are nothing but slaughter manuals (for e.g. see Assam State laws). They only provide direction and give the States ample scope to tweak laws as per their whims and fancies. For example, Article 48 states “cows”, which refers to the entire cow family, but State laws have made exceptions where only female cows are protected from slaughter. In Maharashtra, there is no definition of ‘calf’, it is administratively defined as a young one up to the age of one year. A bull/bullock is of three or more years of age, which means a calf between one-three years of age does not fall into any of the protective laws preventing slaughter. Thus, lakhs of calves are slaughtered in Maharashtra due to the lacuna in the State law.
Animal welfare organizations have reported the ineffectiveness of these legislations during the ‘public hearings’ of the National Commission on Cattle. These include illegal slaughter, slaughter houses, beef exports, etc. The laws exist in theory, but ineffective on paper. This is because each cow gives approximately Rs.15,000 profit, therefore a very powerful meat lobby in India wield unethical and illegal methods to continue the such slaughter. For example, at Nandankanan, the Orissa government zoo cows are slaughtered on an everyday basis and being fed as food to the animals. There is almost unchecked transportation of cattle for slaughter between neighbouring States and in some cases, smuggling of the cattle for slaughter into Bangladesh from Bengal and Bihar. These cows are transported in pathetic and inhumane conditions, as reported by the Animal Welfare Board.
Attempts to prevent blatant violation of State laws have often seen to be prevented by the law-enforcing agencies themselves and in particular the police department. There are numerous reportings of the police siding with the violators by beating innocent animal welfare activists and locking them behind bars. The police are found ignorant in their duties to check illegal transportation and slaughter. These instances do not see the sun as they get well protected by the politicians themselves, who make money out of the cow slaughtering business. The smuggling business of cows into Bangladesh is a hassle-free operation in which there is no haggling over the bribes. The rate is fixed i.e. Rs.1,000 per cow, bullock or buffalo; and the money is shared among the local police, men of the Border Security Force, and village politicians. Such instances are common in Rajasthan, Madhya Pradesh, Maharashtra, Karnataka, Andhra Pradesh, Tamil Nadu, Bihar and West Bengal etc., where the different State apparatuses are themselves involved in law abandonment. In Haryana, the Mewat area, inhabited by the minority Mews and the bordering areas of Rajasthan and Uttar Pradesh, such as Mathura, Alwar and Bharatpur, mass killings of cows takes place illegally and openly in small villages, mostly in areas between 2 hills or sometimes even in the houses in the villages.
COLLAPSE OF THE RULE OF LAW?
Ideas revolving Rule of Law’s enforcement includes those of prevention of using discretion of crime preventing agencies to distort the law. The number of instances involving Hindu right-wing protestors taking law into their own hands and the law enforcers not taking any action is alarmingly high and ever-increasing. The secular framework of law is being compromised to favour Hindu religious outfits who are using lawless means of violence to intimidate and punish minorities. The death of police officer Subodh Kumar Singh in U.P. was a serious indication of the growing order of lawlessness: a member of the state police paid the price for defending the law against the ‘moral police’ hell-bent on spreading social disorder and indulging in violence. Lynching incidents are higher in States with the most stringent laws such as Haryana, Uttar Pradesh, Rajasthan, Jharkhand, and Delhi, which together account for almost 54% of the total reported case, resulting in close nexus between local police and cow vigilantes. These instances suggest the absence of the Rule of Law in many parts of India.
DELEGATED LEGISLATION IF THE CENTRE IMPLEMENTS A LAW
In the event the judiciary gives the green signal to the Centre for a nationwide ban, such legislation must lay down clear objectives so that the delegation can take place in accordance with such objects. Therefore it has to serve as the torch, giving States autonomy to function as per the State’s requirements, while also adding detail to the Central Act. The legislation should be clear and unambiguous and the delegation must be reasonable. This could be useful in curbing misuse, as seen in Maharashtra. State laws should allow for delegation of powers to authorities it deems fit. For example, section 15 and 16 of the Maharashtra Animal Preservation Act, 1976 allow delegation of powers to local authorities, who in turn have power to make rules for carrying out the purposes of this Act. Any overt misuse of this autonomy will be deemed to be invalid i.e. ultra vires the Principal Act.
CONCLUSION: NEED FOR ONE CENTRAL LEGISLATION?
From the above analysis, we can see various webs of interlinkage between administrative law and cattle protection. In light of the ineffectiveness and misuse of laws, corruption there is a need for uniform central legislation. Further, acts in Maharashtra illustrate how state laws are not in sync with the objectives laid out by the centre and are often exploited as loopholes by the various beneficiaries. As recommended by the National Commission for Cattle, common nationwide legislation seems the most prudent method of implementing holistic legislation and overseen by a permanent National Cattle Development Commission or Rashtriya Gau Seva Ayog. Instead of falling under the Animal Husbandry Department, which advocates the development/production of livestock and meat products, cattle preservation and development should be made responsible to a separate ministry. These ministries should be mandated to make frequent checks, impose harsh penalties and rotated on a bi-annual basis so as to reduce scope for corruption and mismanagement.
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 Supra note 1.
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Constitution of India, 1949, Art. 249.
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