Leaning On The Law

Rules regulating animal livestock markets are legally and constitutionally sound

Written by Govind Goel | Updated: June 15, 2017 1:08 am
cattle slaughter, kerala cattle slaughter ban, sale of cattle for slaughter, kerala beef ban, india beef ban, india news, indian express news Parliament enacted the Prevention of Cruelty to Animals Act, 1960, Section 38 whereof empowers the Central Government alone to make rules.

Constitutional evaluation of laws is tricky business. It stands in stark contrast to terming a law or rule as being desirable or undesirable, though it is possible that an undesirable law is also unconstitutional. Merely because a law is inconvenient or results in hardship to some, cannot be the same as saying that the law is constitutionally abhorrent. For that, the law or rule must necessarily surpass the prohibitions embedded in the Constitution itself, or in the case of statutory rules or regulations, go beyond the rule-making power. It is with this spectacle that one must view the Government’s attempt to regulate animal livestock markets.

Parliament enacted the Prevention of Cruelty to Animals Act, 1960, Section 38 whereof empowers the Central Government alone to make rules. The Government notified the Rules last month for constituting and regulating animal markets for transacting sale and purchase of animals without subjecting them to cruelty. Rule 22, which has attracted the most controversy, requires certain measures for ensuring that in animal markets, cattle are transacted for agricultural purposes only, and not for slaughter. The other provisions in these rules constitute Animal Market Committees and lay down several measures for preventing cruelty to animals. It is evident that the purpose of these rules is to free animal markets of transactions which would result in animals being treated cruelly, and the prohibition of cattle slaughter is incidental to that purpose.

The primary objection against these rules is that they violate the right of butchers to practise their trade and occupation freely [Article 19(1)(g)]. It is now an established position that even though Directive Principles are themselves not enforceable by courts, yet Fundamental Rights are to be read in such a manner that the Directive Principles do not remain mere empty declarations. One of the Gandhian principles embodied in Article 48 directs future Governments “to endeavour to…take steps for preserving and improving the breeds, and prohibiting the slaughter of cows and calves and the other milch and drought cattle”. In the same vein, Article 47 requires “…the State…to…endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health”, and liquor prohibition has consequently been upheld by treating liquor trade as res extra commercium [not only held by our Supreme Court in Khoday Distilleries v. State of Karnataka, (1995) 1 SCC 574, but also by the American Supreme Court more than a century ago in Crowley v. Christensen, (1890) 137 US 86].

The question of whether slaughter of milch cattle could be prohibited in its entirety, took nearly half a century to be settled. While in the fifties, the Supreme Court in Mohd. Hanif Qureshi v. State of Bihar [AIR 1958 SC 731] rejected the argument that religious freedom was hindered on account of such prohibition, although it did hold that the prohibition to slaughter even those animals ceasing to be capable of yielding milk or of breeding or working as draught animals, was unjustified as it run foul of the butcher’s right to freedom of trade and occupation under Article 19(1)(g). A larger seven-Judge Bench of the Supreme Court revisited this reasoning and overruling it, held in State of Gujarat v. Mirzapur Moti Kureshi [(2005) 8 SCC 534] that bovine animals did not become useless on their ceasing to be capable of yielding milk or of breeding or working as draught animals. Relying on Directive Principles to hold these restrictions as being reasonable and in public interest, thus saved by Article 19(6), the Court further held that economically, bovine animals can never be useless on account of the value and utility of their dung and urine. Finally, the Court struck a chord of compassion towards animals and reasoned that cruelty to any living creature must be curbed and desisted.

The contention based on the fundamental right to religion under Article 25 even in respect of cow protection laws has been categorically rejected throughout in all these judgments. It is thus specious to say that the 2017 Rules are violative of any fundamental rights.

Our Constitution envisages a distribution of powers that leans in favour of the Union – the most obvious evidence of this being that the Union has the residuary legislative power (Article 248 read with Entry 97, List I of Schedule VII). The Supreme Court has consistently afforded wide amplitude to this residuary entry, thus reaffirming the Centre-leaning legislative scheme [Union of India v. Harbhajan Singh Dhillon, (1971) 2 SCC 779].

The law under which the rules have been notified is the Prevention of Cruelty to Animals Act, 1960, is a Central law and falls squarely within the Concurrent List entry of ‘prevention of cruelty to animals’ [Entry 17, List III]. The argument breaching federalism is clearly fallacious as List II of Schedule VII reveals that no entry can be connected with prohibition of animal slaughter so as to vest exclusive power in the State legislature or executive. For instance, Entry 15 of the State List provides “preservation, protection and improvement of stock and prevention of animal disease; veterinary training and practice”, but that is neither the purpose of the Act nor of the rules – the purpose being to prevent cruelty to animals, and not to improve animal stock or prevent animal disease. Similarly, Entry 28 of State List relating to “markets and fairs” cannot also be marshaled since the pith and substance of the 2017 Rules is to prevent cruelty to animals, and regulation of animal markets is incidental and consequential.

It is thus difficult to say that the 2017 Rules do not meet constitutional muster. The hue and cry on the validity of these rules is on account of the conflation of desirability and legality. Rule of law requires that the legal examination of these rules, albeit challenging, insulate itself from the din of propriety and desirability surrounding these rules.

 

The writer is a Supreme Court lawyer and constitutional expert

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  1. R
    ratnambalan
    Jun 16, 2017 at 5:36 am
    What about fish, crabs etc ?
    Reply
    1. J
      joseph
      Jun 16, 2017 at 1:43 am
      This man is a cons utional expert?. Where did he get his law degree? Does he even have one? The rules notified under the Act make it illegal for people to procure cattle from the cattle market for slaughter. Cattle means 'all cattle' not just cow and its progeny. Making it almost impossible to procure cattle is equal to prohibiting slaughter altogether.That is making rules which go beyond the intention of the original Act. Secondly some states have not banned bullocks from slaughter which surrep iously as mentioned earlier these rules do. That is against federalism.
      Reply
      1. R
        RS
        Jun 15, 2017 at 9:54 pm
        Right out of chaper 13 of DUBIOUS RELEVANCE is what this article sounds like. Here is another HINDUTUVA PUJARI ranting about imperfections and virtues of the legality of a law without any concept of fairness entering the space that rests between his ears. I have a better suggestion for you Mr. Goel and it is this, "You should propose a law that all cow worshipers and "Gai Rakshaks" M-U-S-T take care of at least one cow mom at their place of residence (Those that live on second floor or higher are exempt). Then you would not need to worry these other ID_IO_TIC LAWS emanating from the putrid brains of these RSS law makers.
        Reply
        1. R
          Rohit
          Jun 16, 2017 at 4:31 pm
          Just shut you mouth. If you want to eat beef just get lost. Go die in some other country. It's because of people (animals) like you, the world has become such a horrible place. You should be ashamed of your birth. Our country did not need fools and heinous animals like you.
          Reply
        2. E
          Employ Ment
          Jun 15, 2017 at 8:23 pm
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          Reply
          1. A
            Ajit Shaurya
            Jun 15, 2017 at 8:18 pm
            For people commenting about "chaddi" etc., remember the RSS has changed their dress to keep up with the times. They have gotten rid of the chaddi (they frankly looked like peons in them) and currently put on pants.
            Reply
            1. R
              RS
              Jun 15, 2017 at 9:57 pm
              Once a Chaddi, Always a Chaddi. They can start wearing the long robes the middle eastern guys wear but we will NEVER call these CHADDI WALAS anything else but CHADDI WALAS. They are the British Collaborators, DESH KE GADDAR, Golwalker aur SAVARKAR ke chele. DESH DROHI, BE_IMAN LOG, hain yeh CHADDI WALE.
              Reply
              1. H
                Harry
                Jun 16, 2017 at 12:23 am
                It is time Indian people tell Jihadis Hindu running dogs to fit in or catch Samjhota Expresss. India can learn to live without either, if they can not learn to wishes of Hindu community. Hindus have already given away 1/4 of the land as homeland for Jihadis. But like a running nightmare they and their running dogs dont' want to disappear.
                1. M
                  Mahesh Joshi
                  Jun 16, 2017 at 2:26 am
                  burnol time? BJP is winning everywhere.
              2. S
                Seshubabu Kilambi
                Jun 15, 2017 at 7:51 pm
                Rules are being subvrted to suit modern brahminism while vedic verses show that bef was eaten by them
                Reply
                1. N
                  nirak
                  Jun 15, 2017 at 7:41 pm
                  Upanishads - Brahadaranyaka sayas - Brahmanam 17,18 (CH -20 , 64) Eat flesh of bullock, cow for a good (Progeny)male baby - who has high intelligence, 100 year life and knowledge in scriptures
                  Reply
                  1. C
                    ck
                    Jun 15, 2017 at 6:35 pm
                    Several misleading information and logic are farm in this. The matter is widely connected in both religious wings, commercial, basic rights etc , there for one should be conscious in commenting in this connection. The only thing which are to be explain in this connection is this that this present practice is natural, followed several thousand years all over the world except few places. If this could not be there than animal will be tremendous far more occupied all the places of the world, and all the growing vegetation, food and water will be consumed by them, and human population will be suffered or destro .
                    Reply
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