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A constitutional misadventure
Posted:May 29, 2017
 
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By Anup Surendranath 
 
In what can only be termed an extremely ill-advised constitutional manoeuvre, the government of India has sought to effectively prohibit cattle slaughter across the country through rules made under the Prevention of Cruelty to Animals Act, 1960. Though the rules do not explicitly ban slaughter, they ban the sale and purchase of cattle for slaughter at agricultural markets and therefore, in effect, are attempting to put an end to all kinds of cattle slaughter across the country. It is a constitutional misadventure on multiple grounds involving fundamental rights, separation of powers and federalism.
 
To understand the extent of this misadventure, clarity on some basic constitutional concepts will be useful. It was the Indian Parliament that enacted The Prevention of Cruelty to Animals Act, 1960 (the Act) and that legislation empowers the Government of India (as the executive) to make rules to implement the Act. The executive’s power to make rules under a legislation cannot be exercised in a manner that is contrary to parent legislation — and the latest set of rules does exactly that.
 
The Act through section 11 criminalises cruel treatment of animals by listing a wide range of activities and then, in sub-clause (3)(e) of that very provision, declares that killing an animal for food will not be an offence unless it is “accompanied by the infliction of unnecessary pain or suffering”. It is explicit and clear as day that the Act does not contemplate a prohibition on the slaughter of animals for food. The government cannot then, through its executive power to make rules, achieve a goal that is not permitted by the substantive provisions of the legislation.
 
Further, in sub-clause (3)(c) of the Act, it is clearly stated that killing of animals permitted under other existing laws cannot be made an offence. There exist multiple state legislations that permit the slaughter of cattle and the Government of India (GoI) cannot then use this Act to render such slaughter illegal. In issuing this latest set of rules, the GoI has exercised power it does not have under The Prevention of Cruelty to Animals Act, 1960.
 
Another glaring anomaly in the new rules is that the government seems interested in preventing cruelty only to cattle (defined as bovine animals including the cow, bull, bullock, buffaloes, steers, heifers, calves and camels). If the government’s real interest was indeed the prevention of cruelty to animals due to slaughter, there cannot be any constitutionally acceptable reason for leaving out chickens, pigs, sheep, goats, fish, rabbits, etc.
 
It is evident that the real interest is not in preventing cruelty to animals but rather, in protecting cattle for other reasons.
 
It is important to understand the reasons for the GoI choosing to protect cattle through The Prevention of Cruelty to Animals Act, 1960. Why did the government not introduce a bill in Parliament to prohibit cow slaughter across the country? Cow slaughter is regulated/prohibited across the country in different ways by various state legislations. Different state legislations have variations on the kind of cattle that can be slaughtered and when they can be slaughtered.
 
That is the reason for getting only buffalo meat in Delhi, the meat of bulls and bullocks in Kerala and a complete prohibition on slaughter of cows, bulls, bullocks and buffaloes in Madhya Pradesh. Such prohibitions/regulations are achieved through separate state legislations because the power to make such laws is given exclusively to the states under the constitution.
 
And there is very good constitutional logic for that. There is no religious protection for the cow or any other cattle under the constitution and the issue of cow slaughter in the Directive Principles of State Policy is tied to agriculture and the interests of animal husbandry.
 
That approach flows into the constitutional logic of leaving the power of determining cow slaughter regulations exclusively to the states because issues relating to livestock are invariably tied to local conditions of agriculture, availability of fodder, customs, dietary preferences, etc. An all-India anti-cow slaughter legislation by Parliament is unviable because the constitution does not give Parliament the power to make such a law. And therefore, this indirect attempt through The Prevention of Cruelty to Animals Act, 1960.
 
The GoI is attempting to indirectly achieve a goal that it cannot directly achieve. The government is resorting to prohibit cow slaughter through the lens of animal cruelty because the power to make laws on animal cruelty is shared between the states and Union under the Concurrent List of the Constitution. But such a tactical move comes with serious constitutional consequences. As discussed earlier, the current version of the legislation on animal cruelty does not give the government the power to prohibit slaughter per se, cattle or otherwise.
 
Can Parliament then amend The Prevention of Cruelty to Animals Act, 1960 to prohibit slaughter per se, irrespective of whether it is accompanied by the infliction of unnecessary pain or suffering? It surely can (whether it will survive a constitutional challenge in court is a separate question) and nothing prevents the government from pushing through such a legislative amendment.
 
However, that would still leave the question unanswered — whether the government can selectively prohibit the slaughter of cattle while permitting the slaughter of other animals? Therein lies the ill-advised nature of this move. The government cannot selectively protect cattle through The Prevention of Cruelty to Animals Act, 1960. Relying on the argument against cruelty to animals is an all-or-nothing option. And if the slaughter of all animals is prohibited under the Act, we would be confronted with a forced vegetarianism debate.
 
The latest move of the government is symptomatic of the debate on cow slaughter. While political discussion on the issue is driven by religious considerations, the judicial journey pretends very hard to be about considerations other than religion. The long line of Supreme Court decisions goes to absurd lengths to justify anti-cow slaughter legislations on grounds of agriculture. It was only last year that a court was finally called upon to rule on the validity of a prohibition on the possession/consumption of beef per se even if the meat was sourced from a state that permitted cow slaughter.
 
The Bombay High Court in a constitutionally mature decision upheld the constitutional liberty to determine individual dietary preferences and struck down the prohibition contained in the Maharashtra legislation. The Supreme Court is yet to look at anti-cow slaughter legislations from this angle and neither has it ever before looked at the impact of anti-cow slaughter legislations on the dietary habits of social groups and on those working in the leather industry.
 
Located in a political context that is aggressive and violent on the cow protection agenda, when the case does come before it, it is imperative that the Supreme Court sends a clear message on fundamental liberties and limitations on the power of the government. Meanwhile, we all must take a step back and introspect about India’s political and constitutional journey over nearly seven decades that permits governments to tell us what we can eat.
 
 
 
 
 
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