The Aam Aadmi Party (AAP) government on Monday defended in the Delhi High Court a law criminalising possession and consumption of beef, citing constitutional obligations.
The Delhi government’s Department of Animal Husbandry made a submission to protect cows and other milch and draught animals from slaughter. The affidavit was filed before a Bench of acting Chief Justice Gita Mittal and Justice C Hari Shankar.
The Department said that “the Article 48 of the Constitution casts an obligation on the State to take steps to preserve, improve and prohibit slaughter of cows, calves and other milch animals and draught cattle.”
“Therefore, the provisions of the Delhi Agricultural Cattle Preservation Act (1994) criminalising the possession and consumption of beef in the national Capital be not declared as unconstitutional,” it has argued.
Does the Constitution really cast an ‘obligation’ on the State to ban cattle slaughter?
The short answer is no.
The long answer requires us to analyse Article 48 of the Indian Constitution:
“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.”
Incidentally, Article 48 is a directive principle and not a fundamental right, and unlike fundamental rights, directive principles are non-justifiable i.e. they are not enforceable by the courts for their violation. Directive principles are meant to act as guides to the government in framing policies. They do not have legal or political sanctions.
The architect of the Indian Constitution, Dr B R Ambedkar, included the slaughter of cattle as a provision in the directive principles because of its draconian nature even in 1950. Moreover, Article 48 titled, “Organisation of agriculture and animal husbandry” is free from religious undertones (even though the reason behind a group of Constituent Assembly members to include it as an enforceable right was religious).
The text of the Article mentions, “…endeavour to organise agriculture and animal husbandry on modern and scientific lines…” Meaning, a ban on cattle slaughter should be inspired solely by scientific or agricultural needs.
In conclusion, decriminalising the ban on cattle slaughter would not have been unconstitutional on part of the Delhi government.
Criminalising cattle slaughter is unconstitutional
Kejriwal-led Delhi government’s affidavit was in response to a PIL challenging the Constitutional validity of those provisions of the Delhi Agricultural Cattle Preservation Act, 1994 which criminalise possession and consumption of beef in the city.
The plea filed by law student Gaurav Jain and an NGO working for the development of SCs and STs contended, “prohibition on possession and consumption of beef per se as under Cattle Preservation Act is in violation of the Fundamental rights of the petitioners and other persons similarly situated, as it infringes on their personal liberty,” reported The Hindu.
Article 21 of the Constitution guarantees personal liberty. The government does not have any business poking its nose in our eating habits.
One might argue that fundamental rights are not absolute and can be infringed upon according to a procedure established by law. True. But the law that the Delhi government defended in court not only penalises slaughter of cattle but also possession of its flesh, even if purchased from outside the State.
The Delhi Agricultural Cattle Preservation Act was passed by the BJP in 1994. It gives the government the power of entry, search and seizure of anybody’s premises if the authorities feel provisions of the law have been violated or are likely to be violated. Moreover, the burden of proof falls on the accused, violating the “innocent until proven guilty” principle.
Offences punishable under this Act are cognizable and non-bailable and attract jail term between five years to 6 months, depending on the seriousness of the crime.
The Logical Indian take
Cows have gained center stage in Indian politics in the recent past. Never before was a mere animal more important than the lives of humans beings in the eyes of law.
The tension between the centre and the AAP government is not unknown, with the latter obligated to get the L-G’s nod for passing/changing any legislation. Overhauling (better still, scraping) the Cattle Preservation Act would not have been a breeze for the Delhi government. But it could’ve at least tried.
The 2016 Una incident of stripping and beating Dalit youths with iron rods still brings shivers down the spine of anyone watching the video.
We live in a country where victims, even after their deaths, are punished for the crime (Pehlu Khan, who was lynched to death by a mob for transporting cattle, was charged by the Alwar police for cow smuggling).
Ban on slaughter of cattle and moreover, even the possession of beef affects Indian minorities the most. They not only face brutal violence, but cattle sale as a traditional source of income is also lost. Only 30% of the cattle slaughtered in the country is used for consumption – either locally or exported – while 70% is used by the leather industry and for the production of items like buttons, soap, toothpaste, paint brushes, surgical stitches, and other items of daily use. So when the Delhi government followed suit of not interfering with the Cattle Preservation Act, it not only added to the burden of the meat industry but also hurt the livelihood of thousands.
In times like these, it was essential that the Delhi government reinstated trust in the minds of the general public, assuring them that their lives mean more than politics.