With the outrage swelling, a question the Supreme Court has to decide if the right to choice of food is indeed guaranteed by the Constitution.
Cow politics has finally trudged back up to the Supreme Court in the form of two separate-yet-linked issues, both concerning the right to choice of food. As more petitions are likely to be filed with the highest court of the land, it has asked the state and central governments to respond.
In April, the Supreme Court issued notices to the state governments of Rajasthan, Karnataka, Uttar Pradesh, Gujarat, Jharkhand and Maharashtra to respond to enforcing strict bans on cow vigilantes. Even with that in the backdrop, violence by cow protection vigilante groups has continued as seen in the two deaths in Jharkhand and assaults in other parts of the country.
In June, a vacation bench of the Supreme Court asked the central government to respond to a petition by the All India Jamiatul Quresh Action Committee — an organisation of cattle traders and butchers — challenging the new Prevention of Cruelty to Animals Rules (PCAR). The All India Kisaan Sabha — a major left trade union supported by left parties — has since filed a petition also challenging the new cattle trade regulations.
In effect, the Supreme Court may have to revisit two earlier constitutional bench judgements made on cattle-slaughter bans. The first was by a five-judge bench in 1958 and the second by a seven-judge bench in 2005. It is to be seen if, once the central government has responded, the cattle slaughter ban notification will be referred to a constitutional bench. Both petitions have claimed that the new regulations have possibly violated fundamental rights and other constitutional provisions.
In May, the central government had notified the new rules which laid out strict regulations for cattle trade. It allowed purchase of cattle only for agricultural purposes and not for slaughter.
The petition by the All India Jamiatul Quresh Action Committee does not only speak of the new regulations curbing cattle slaughter for consumption and religious sacrifice. It also claims that the new rules place several curbs on cattle traders since it permits only agriculturists to trade in cattle. It also bars breeding and raring since the new rules prohibit sale of animals below the age of six months.
The petitions use a catena of previous judicial rulings to show how cow slaughter has been legitimised, based on the 1960 law.
“The complete ban of sale or purchase or resale of animals, would cast a huge economic burden on the farmers, cattle traders who find it difficult to feed their children today but would be required to feed the cattle as it is an offence under the Act of 1960 to starve an animal or failure to maintain it and would also give way for Cow Vigilantes to harass farmers and cattle traders under the blessing of the impugned regulations,” the petition claims.
In 1958, a five-judge bench of the Supreme Court had held that the laws made by three states (including Bihar and Uttar Pradesh) banning slaughter of bovine cattle was legal and constitutionally valid.
The exception by the apex court was “… a total ban on the slaughter of she-buffaloes, bulls and bullocks (cattle or buffalo) after they ceased to be capable of yielding milk or of breeding or working as draught animals was not in the interests of the general public and was invalid.”
Within two years of the landmark judgement, parliament enacted the Prevention of Cruelty to Animals Act 1960. The law remained unchanged till parliament introduced amendments in 1982.
Cattle slaughter in India continued to be regulated by states making their own local laws since different regions had diverse cultural and community practices.
As of now, there is a blanket ban on slaughtering any cattle in six states. In the rest of the states, there are various conditions such as obtaining ‘fit for slaughter’ certification (given upon meeting certain preconditions) but even then some explicitly prohibit cow slaughter. There are also laws banning export of cattle to other states for slaughter.
The Constitutional validation for banning cow slaughter is drawn from the directive principles of state policy, specifically Article 48 that recommends promotion of agriculture and animal husbandry. When the Constitution of India was being drafted, the member most vocal on banning cow slaughter was a member of parliament from Punjab, Pandit Thakurdass Bhargava. He argued that the cow should be protected for food security and economics.
The experience as a legislator arguing on the floor of parliament seems to have given Bhargava an edge. In the 1958 case, Bhargava was made the amicus curiae and again argued in favour of complete ban on cow slaughter. He even declared that official reports on the lack of fodder and pastureland were inaccurate. Bhargava held the directive principles of state policy to be higher than the fundamental rights He also provided an insight into the economics from cattle, including the then princely contribution of Rs 63 crore to the national income by cattle dung.
Needless to say, the situation has changed grossly in the last 60 years.
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During the 2005 judgement, the Supreme Court heard a plea challenging a Gujarat law banning cattle slaughter. The seven-member bench upheld the 1958 judgement but overruled it so that slaughter of “non-useful” cattle was also banned.
Writing his dissenting view, Justice AK Mathur had observed, “I fail to understand how it would advance the cause of the public at large so as to deprive the handful of persons of their rights to profession. On the basis of this material, I am of the opinion that the earlier decisions of this Court have not become irrelevant in the present context. The tall claim made by State looks attractive in a print but in reality it is not so. I fail to understand that how can an animal whose average age is said to be 12-16 years can at the age of 16 years reproduce the cow-dung or urine which can offset the requirement of the chemical fertilizer.”
The law, which was enacted after the 1958 judgement, also allowed slaughter for religious purposes under Section 28. The 2005 judgement nevertheless relied on the 1958 judicial view that there were insufficient religious grounds for Muslims to claim that animal sacrifice were a part of the Bakr Id tradition.
The new regulations were recently challenged before the Kerala High Court, which did not grant a stay order. However, Justice PB Suresh Kumar admitted the petitions and noted, “There is force in the contention advanced by the petitioners that the impugned Rule, which prohibits sale of cattle for slaughter in cattle markets and prohibits the purchasers of cattle from cattle markets from selling the same for slaughter, is beyond the scope of the Act and thus ultra-vires the Act, which neither deals with livestock nor with regulation of activities in markets. It is all the more so since slaughtering is a permissible activity under the Act.”
He also pointed out that regulation of livestock markets and improvement of animal husbandry were under the state list and the centre did not have the power to make overriding regulations on them.
The issue before the court now is much wider since the issues of cattle slaughter and beef ban have taken a different direction. Even in earlier judgements, the courts observed how anti-social elements prevent transportation of cattle. In several cases, the lower judiciary had refused bail to those accused of smuggling cattle to other states for slaughter.
It is these same anti-social elements, in the garb of cow protectors, who have become further emboldened and taken on a vigilante mission to assault people on mere suspicion of transporting cattle for slaughter regardless of the law in that state. There are reports that many such cow vigilantes belong to Hindutva groups. Lynchings of Muslims on mere suspicion of carrying or possessing beef evoked protests in several cities.
In April, shortly after the death (due to assault by cow protection vigilantes) of dairy farmer Pehlu Khan in Alwar, the Supreme Court asked the states and the centre for their response to the violence.
A petition filed by Congress leader Tehseen Poonawalla had pointed out that the cow protection laws in Gujarat, Karnataka and Maharashtra even provided for the protection of people who “acted in good faith” under these laws.
Poonawalla’s plea asked for action against the cow protection vigilantes and to strike down the cow protection laws of Gujarat, Karnataka and Maharashtra that validated the vigilante activity.
With the outrage swelling, a question the Supreme Court has to decide if the right to choice of food is indeed guaranteed by the Constitution.