Cattle and constitutional morality
THE recent notification (May 2017) by the Government of India prohibiting the sale of cattle for slaughter in livestock markets has once again ignited the debate surrounding the legality of laws relating to the prevention of cattle slaughter and the impact this has on the economy as well as the livelihoods of those involved in the trade. Needless to say, the demand that an end be put to the slaughter of cattle is not new. Considered a sacred animal by many Hindus, the prohibition of cow slaughter finds a place under Article 481 of the Indian Constitution and falls within the Directive Principles of State Policy, the part of the Constitution that sets out the broad values and guidelines for law making in the country but is itself unenforceable except by moral force.
Even though Directive Principles, unlike fundamental rights, are unenforceable in a court of law, over the years courts have adopted the practice of reading fundamental rights in the context of Directive Principles. This approach has been applied by the Supreme Court in cases where state legislations prohibiting the slaughter of cattle have been challenged before it as a violation of the fundamental right to carry on a trade or occupation under Article 19(g). An array of cases show that the court has read Article 48 into what would constitute a ‘reasonable restriction’2 in the interests of the general public to the fundamental right to carry on a trade or occupation. A significant case is that of State of Gujarat vs Mirzapur Moti Kureshi Kassab Jamat (2005) where it was held that a total prohibition on the slaughter of cows and cow progeny is a reasonable restriction to the fundamental right to carry on a trade or business (the trade or business in this case being that of the butcher community). It is in this context that one must test the legality of the recent notification that prohibits the sale of cattle for slaughter in livestock markets.
The Ministry of Environment and Forests notified the Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017 on 23 May as a response to the directions of the Supreme Court in the case of Gauri Maulekhi vs Union of India (2014), wherein the court directed the central government to frame guidelines to prevent smuggling of animals for the Gadhimai festival in Nepal, where sacrifice of animals takes place on a large scale. The rules fall under the Prevention of Cruelty to Animals Act, 1960 and are applicable in all states except for Jammu and Kashmir. They introduce a range of regulations on the sale and purchase of cattle, including bullocks and buffaloes.
The rules also contain a number of provisions that aim to ensure the welfare of animals in the animal markets. The notification lays down a series of compliances that need to be met before granting registration to the market, such as adequate facilities for shelter, feeding, veterinary care and water supply for animals. To facilitate this, two committees have been constituted under the rules, namely, the District Animal Market Monitoring Committee for registration and regulation of animal markets in the district and the Animal Market Committee at the local level for management of the markets.
The rules look to limit livestock markets as hubs for trade of animals for agriculture, while cattle for slaughter have to be bought from the farmers at the farms. Further, no animal market can be organized within twenty-five kilometres of a state border or fifty kilometres from an international border.
The definition of cattle includes bulls, bullocks, cows, buffalos, steers, heifers, calves and camels. Any person bringing cattle to an animal market for sale has to furnish a written declaration stating the name and address of the owner of cattle along with a copy of photo identification proof, details of the identification of the cattle as well as state that the cattle has not been brought to the market for sale for slaughter.
Similarly, restrictions are placed on the purchaser to sell the animal for slaughter, sacrifice the animal for any religious purpose and sell the cattle to a person outside the state without permission. The Animal Market Committee must verify that the purchaser is an agriculturist and take an undertaking that the animals will not be sold up to six months from date of purchase.
Even as concern shown by the ministry to the condition of animals while framing new rules is worth applauding, its attempt to prevent the sale of cattle for slaughter is a cause of worry for four reasons: first, for indirectly enforcing dietary restrictions, second for the economy, third for the livelihood of farmers, butchers and those involved in the leather industry and fourth because the order is legally untenable.
While many states have in place laws punishing the slaughter of cows and other cattle, other states like Kerala in the South and Nagaland, Meghalaya, Sikkim and Mizoram (amongst others) in the North East place no restrictions on the slaughter of any form of cattle, as beef is widely consumed in these regions. The ban on slaughter of cattle unfairly restricts the indigenous dietary habits that are integral to certain cultures and communities.
From an economic point of view, both the meat and leather industry occupy a significant place in the Indian economy in terms of revenue from domestic consumption and income from abroad. During financial year 2016-17, India exported over 124,000 tonnes of boneless bovine meat bringing it close to four billion dollars and making it the country’s 9th largest source of income through exports.3
As far as the leather industry is concerned, according to the Ministry of Commerce’s Make in India report,4 the sector’s contribution to India’s national income in 2015 stood at 17.85 billion dollars of which 12 billion dollars came from the domestic market. The report highlights the fact that the industry has a young workforce with 55% below the age of 35.
A ban on the slaughter of cattle will hit two industries that are of significant value to the Indian economy and on whom a large workforce depends for their livelihood. News reports suggest that a virtual shutdown of established cattle markets as a result of the ban has already led to a massive fall in meat production.5 Farmers have also been hit as they are burdened with cattle that are no longer productive and they have no outlet to give them away.6
While one may argue that the notification has not prevented sale of cattle for slaughter other than in animal markets, one has only to look at the definition of animal market to know just how wide it is. Under the rules, animal market means ‘a market place or sale-yard or any other premises or place to which animals are brought from other places and exposed for sale or auction and includes any lairage adjoining a market or slaughterhouse and used in connection with it and any place adjoining a market used as a parking area by visitors to the market for parking vehicles and includes animal fair and cattle pound where animals are offered or displayed for sale or auction.’7 The definition of animal market is so wide that even if one animal were kept near a slaughterhouse, the place occupied by the animal may get classified as a ‘lairage’ and consequently becomes an animal market.8 Besides, given the scale on which the leather and meat industry operate, it is hardly practical or feasible to expect them to approach individual farmers at their farms to procure cattle.
Apart from the reasons discussed above, the notification is questionable in law for the following reasons. To start with, how can subordinate rules restrict the slaughter of cattle when such turf has not been covered by the parent act? Subordinate rules must be consistent with the parent act. In case of an inconsistency between the parent act and subordinate rules, subordinate rules will be inoperative and void. This is because the executive cannot have wider powers of law making than the legislature that has delegated the power to make these laws to the executive.
The Prevention of Cruelty to Animals Act does not prevent slaughter of animals, nor does it attempt to control it. In fact, the proviso to Section 11 of the Act permits killing of animals for food on the condition that such destruction was not accompanied by unnecessary pain and suffering. When such is the case the only conclusion one can draw is that the rules, to the extent that they prevent cattle slaughter, are void for want of authority by the parent act.
Consequently, the rules cannot be termed as ‘reasonable restrictions’ under Article 19 (6) to the fundamental right to carry on a trade or occupation, since the restrictions placed on the sale of animals for slaughter are imposed by subordinate rules that are in conflict with the parent act unlike in the case of State of Gujarat vs Mirzapur Moti Kureshi Kassab Jamat (2005) where the absolute prohibition on cow and cow progeny slaughter was imposed by a law enacted by the state legislature.
Further, the central government is not competent under the constitutional framework of division of powers between the Centre and the states to make laws or rules relating to slaughter of cattle as any law relating to the ‘Preservation, protection and improvement of stock and prevention of animal diseases; veterinary training and practice’ falls exclusively within the state’s domain of law making (Entry 15, State List). It is for this reason that some states in India have banned cow slaughter while others place no restrictions. There cannot be an ‘all India law’ that restricts the slaughter of cattle under the constitutional framework as it stands.
It must be mentioned here that the central government does not have power to regulate animal markets either as Entry 28 of the State List (Market and Fairs) gives exclusive power to state governments to make laws relating to markets and fairs.
This is an instance where rules on the prevention of slaughter of cattle masquerade as one on the prevention of cruelty to animals. What else can explain the fact that under the notification, restrictions are placed only on the slaughter of cattle without any similar restrictions being placed on the slaughter of any other animal? Since the central government is not competent to make laws on cattle slaughter, the Centre has attempted to bring the slaughter of cattle within the ambit of cruelty to animals. Such an attempt will fail for being colourable, i.e. doing indirectly what is not permitted directly.
Despite the fact that the Directive Principles of State Policy places responsibility on the state to make laws for the prohibition of slaughter of cattle, the recent notification is in want of legal validity for the reasons mentioned above. The division of powers between the Centre and states as it stands today does not permit the Centre to make laws regulating or restricting the slaughter of cattle. One hopes that the Supreme Court will take these aspects into consideration while deciding on the constitutional validity of the notification in the challenge to it.
1. Organization of agriculture and animal husbandry: The State shall endeavour to organize agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.
2. Article 19(6), The Constitution of India
3. Directorate General of Commercial Intelligence and Statistics, Trade Data. Ministry of Commerce and Industry, GoI. http://dgciskol.nic.in (accessed on 9 June 2017).
4. Department of Industrial Policy and Promotion (DIPP), Council of Leather Exports, Make in India Report. Ministry of Commmerce and Industry, GoI. http://www.makeinindia.com/sector/leather
5. http://www.caravanmagazine.in/vantage/prohibition-sale-cattle-slaughter-supply-chain https://www.telegraphindia.com/1170529/ jsp/frontpage/story_154049.jsp
6. http://www.ndtv.com/india-news/will-leave-buffaloes-on-the-road-says-up-farmer-hit-by-centres-cattle-ban-1705555 http://www.caravanmagazine.in/vantage/prohibition-sale-cattle-slaughter-supply-chain
7. Section 2(b), Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017.
8. Manu Sebastian, ‘Why Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules 2017 is Unsustainable in Law’. http://www.livelaw.in/prevention-cruelty-animals-regulation-livestock-markets-rules-2017-unsustainable-law/ (accessed on 10 June 2017).