Four days after the Delhi Police entered Kerala House to investigate an allegation that beef was being served there, the political controversy is continuing unabated. While Kerala Chief Minister Oommen Chandy has written to Prime Minister Modi (with Chief Ministers Arvind Kejriwal and Mamata Banerjee also getting into the act) on the one hand, the Delhi Police have arrested “Hindu Sena” leader Vishnu Gupta for making a false complaint on the other. At this stage, it is perhaps important to take a step back from the heated political arena, and take stock of the laws that allegedly justify such actions.
In Delhi, that law is the 1994 Delhi Agricultural Cattle Preservation Act. This law prohibits the slaughter of cows, calves, bulls and bullocks of all ages. It prohibits the transport, export or sale of these animals for slaughter, and also prohibits the possession of their flesh, even if they have been slaughtered outside Delhi. Quite apart from the fact that Kerala House was serving buffalo meat, and therefore was not in contravention of the Act in the first place, the Act itself does not clothe the police with any power to enter premises in order to check for violations. As Justice Katju pointed out in a blog post, enforcement powers under the Act, including powers of search and seizure, are specifically vested in the Director of Animal Husbandry, or the Veterinary Officer. Monday’s police action, therefore, was illegal even under the terms of the existing law.
Constitutional principles
Let us, however, take a deeper look at the law itself, from the standpoint of constitutional principles. The starting point of discussion of cow slaughter laws is invariably Article 48 of the Constitution. which states:
Article 48 is part of the Directive Principles of State Policy, a number of non-enforceable exhortations to the State that are meant to act as a guide in framing policy. The placement of Article 48 in the Directive Principles was the result of a protracted conflict in the Constituent Assembly, between one set of Assembly members, who wanted a ban on cow slaughter to be placed within the enforceable fundamental rights chapter, thus making it mandatory – and the other set, who wanted it out of the Constitution altogether.
By including it within the Constitution, but making it non-enforceable, the Assembly finally arrived at an uneasy compromise. The compromise is also reflected by the fact that Article 48 makes no mention of religion, although religious sentiments were the motivating factor of the struggle. The Article is headlined “organisation of agriculture and animal husbandry”, and the text of the Article itself speaks of the need for modern and scientific agriculture. If a ban on cow slaughter is to be justified, then, it must be justified by invoking non-religious, agricultural needs. Interestingly, the Delhi Act does just that, claiming that its objective is to “provide for the preservation of animals suitable for milch, draught, breeding or agricultural purposes.”
The Supreme Court’s jurisprudence on cattle slaughter bans reflects the compromise that was reached in the hammering out of Act. In an early case, in 1958, the Supreme Court invoked the agricultural justification to hold that a ban could only be partial in nature, since it could not cover cattle that had lost their breeding or draught purposes. While the Court backtracked on this, and upheld a complete ban in 2005, the basic justification continued to be agricultural.
While the Supreme Court has therefore held that a complete ban on cattle slaughter is justifiable because of the economic goals at stake, when it comes to the criminalisation of mere possession of cattle flesh, this logic seems stretched to the breaking point. As Anup Surendranath has perceptively argued, the Delhi Act reflects the thin edge of the wedge of “increasing attempts to achieve non-secular aims through secular means in the context of cow slaughter… com[ing] to a head when States attempt to prohibit possession and consumption of beef per se.”
Constitutional rights
The problem deepens when we take into account the fact that the enforcement of the law requires State intervention into two important constitutional rights: the right of the individual to take autonomous decisions regarding her physical and mental well-being (part of the right to life and personal liberty), and the right to privacy. While hearing the porn ban petition recently, Chief Justice Dattu remarked that neither the State nor the Court could go within the “four walls” or a person’s home to stop him from watching what he wanted to watch. The same logic applies to consumption of food. And without the supportive structure of Article 48, which is inapplicable to situations where there are no agricultural interests at stake, the provision is left constitutionally defenceless.
Insofar as it criminalises the mere possession of cattle flesh, the Delhi Act is constitutionally suspect. Its open-ended provisions also provide ample scope for abuse, as the Kerala House incident demonstrates. Perhaps it is time for Delhi’s present government, which enjoys a brute majority in the state assembly, to take the initiative and repeal it.
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In Delhi, that law is the 1994 Delhi Agricultural Cattle Preservation Act. This law prohibits the slaughter of cows, calves, bulls and bullocks of all ages. It prohibits the transport, export or sale of these animals for slaughter, and also prohibits the possession of their flesh, even if they have been slaughtered outside Delhi. Quite apart from the fact that Kerala House was serving buffalo meat, and therefore was not in contravention of the Act in the first place, the Act itself does not clothe the police with any power to enter premises in order to check for violations. As Justice Katju pointed out in a blog post, enforcement powers under the Act, including powers of search and seizure, are specifically vested in the Director of Animal Husbandry, or the Veterinary Officer. Monday’s police action, therefore, was illegal even under the terms of the existing law.
Constitutional principles
Let us, however, take a deeper look at the law itself, from the standpoint of constitutional principles. The starting point of discussion of cow slaughter laws is invariably Article 48 of the Constitution. which states:
...the State shall endeavour to organise 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.”
Article 48 is part of the Directive Principles of State Policy, a number of non-enforceable exhortations to the State that are meant to act as a guide in framing policy. The placement of Article 48 in the Directive Principles was the result of a protracted conflict in the Constituent Assembly, between one set of Assembly members, who wanted a ban on cow slaughter to be placed within the enforceable fundamental rights chapter, thus making it mandatory – and the other set, who wanted it out of the Constitution altogether.
By including it within the Constitution, but making it non-enforceable, the Assembly finally arrived at an uneasy compromise. The compromise is also reflected by the fact that Article 48 makes no mention of religion, although religious sentiments were the motivating factor of the struggle. The Article is headlined “organisation of agriculture and animal husbandry”, and the text of the Article itself speaks of the need for modern and scientific agriculture. If a ban on cow slaughter is to be justified, then, it must be justified by invoking non-religious, agricultural needs. Interestingly, the Delhi Act does just that, claiming that its objective is to “provide for the preservation of animals suitable for milch, draught, breeding or agricultural purposes.”
The Supreme Court’s jurisprudence on cattle slaughter bans reflects the compromise that was reached in the hammering out of Act. In an early case, in 1958, the Supreme Court invoked the agricultural justification to hold that a ban could only be partial in nature, since it could not cover cattle that had lost their breeding or draught purposes. While the Court backtracked on this, and upheld a complete ban in 2005, the basic justification continued to be agricultural.
While the Supreme Court has therefore held that a complete ban on cattle slaughter is justifiable because of the economic goals at stake, when it comes to the criminalisation of mere possession of cattle flesh, this logic seems stretched to the breaking point. As Anup Surendranath has perceptively argued, the Delhi Act reflects the thin edge of the wedge of “increasing attempts to achieve non-secular aims through secular means in the context of cow slaughter… com[ing] to a head when States attempt to prohibit possession and consumption of beef per se.”
Constitutional rights
The problem deepens when we take into account the fact that the enforcement of the law requires State intervention into two important constitutional rights: the right of the individual to take autonomous decisions regarding her physical and mental well-being (part of the right to life and personal liberty), and the right to privacy. While hearing the porn ban petition recently, Chief Justice Dattu remarked that neither the State nor the Court could go within the “four walls” or a person’s home to stop him from watching what he wanted to watch. The same logic applies to consumption of food. And without the supportive structure of Article 48, which is inapplicable to situations where there are no agricultural interests at stake, the provision is left constitutionally defenceless.
Insofar as it criminalises the mere possession of cattle flesh, the Delhi Act is constitutionally suspect. Its open-ended provisions also provide ample scope for abuse, as the Kerala House incident demonstrates. Perhaps it is time for Delhi’s present government, which enjoys a brute majority in the state assembly, to take the initiative and repeal it.