The Environment Ministry notification imposing ban on sale of cattle for slaughter in animal markets may be undesirable but is it unconstitutional? The Supreme Court has already heard similar cases twice in the past.
- 1Supreme Court ruled cattle slaughter ban as constitutional in 1958.
- 2In 2005 7-judge bench of apex court upheld 1958 ruling.
- 3Two-judge bench is hearing plea challenging cattle sale rules.
On June 7, a petition was filed in the Supreme Court, whose vacation bench comprising Justices RK Agrawal and SK Kaul heard the matter yesterday and sought a response from the Centre posting the case for further hearing on July 11.
The petitioner has challenged the new notification by the Centre effectively putting a ban on the sale of cattle for slaughter in animal markets across the country.
Petitioner Mohammed Abdul Faheem Qureshi of Hyderabad has contended in his plea that the notification is “against the freedom of religious practice to sacrifice the animals” and imposing a ban on slaughter of animals for food violates the right to freedom of religion, conscience, privacy and personal liberty guaranteed to a citizen under the Constitution.
On May 26 – just two days ahead of the first day of Ramzan – the Ministry of Environment and Forest issued a notification banning sale and purchase of cattle at animal markets for slaughter.
Titled, Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017 under the Prevention of Cruelty to Animals Act, the Environment Ministry notification has since become controversial.
In his plea, the petitioner has also argued that the cattle need to be fed as it is an offence under the Prevention of Cruelty to Animals Act, 1960 to starve an animal or failure to maintain it but the notification would make cattle rearing a burdensome occupation.
NOW, THE FACT CHECK
The Prevention of Cruelty to Animals Act, 1960 was passed by Parliament when Pandit Jawaharlal Nehru was the Prime Minister of India. This Act was amended in 1982, when Indira Gandhi was the Prime Minister of India. The present Act is the same as amended by the Indira Gandhi government 37 years ago.
Section 38 of the Prevention of Cruelty to Animals Act states that only the Centre is empowered to make rules for upkeep of animals. The Environment Ministry’s notification issued last month derives power from Section 38 of the Act.
Rule 22 of the notification has turned out to be most controversial as it tries to ensure that sale and purchase of cattle in designated animal markets can only be done for agricultural purposes and not for slaughtering. The official objective of the latest rules is to prevent cruelty to animals – considering slaughter a cruel act.
Further the Prevention to Cruelty to Animals Act was legislated on a subject that is mentioned in the concurrent list of the Constitution as under ‘prevention of cruelty to animals’.
If Parliament enacts legislation on a subject mentioned in the concurrent list, the law prevails over any other Acts passed by state assemblies to the extent of contravention.
NOTIFICATION VIOLATES FUNDAMENTAL RIGHTS?
Petitioner in the Supreme Court and many critics outside have objected to the new rules saying that these violate the fundamental right guaranteed to the butchers under Article 19 (1)(g) of the Constitution, that is, to practice their trade and occupation freely in the country.
The question is before the Supreme Court to settle finally. But, rules find their backing in some of the provisions of the Constitution even though they are not ‘enforceable’ in nature.
Article 48 of the Constitution expects governments to “take steps for preserving and improving the breeds, and prohibiting the slaughter of cows and calves and the other milch and drought cattle.”
It is established that the Directive Principles for State Policies cannot be enforced through court of law but the DPSPs were meant to be read with fundamental rights in such a way that the former don’t become hollow declarations of the Constitution.
Moreover, Article 48 of the Constitution is considered to be inspired by the philosophy of Mahatma Gandhi.
EXAMPLE OF LIQUOR BAN
Using the same principle of coherence between the Directive Principles of State Policy and Fundamental rights, many states have implemented prohibition.
Interestingly, Article 47 asks the governments to “bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.”
In 1994, the Supreme Court held liquor prohibition in Karnataka valid on constitutional parameters. The apex court ruled that liquor trade was res extra commercium, that is, a thing outside commerce.
The present case before the Supreme Court is not the first one in which the petitioner has challenged the regulation of cattle slaughter – directly or indirectly – by the government. In 1958, a five-judge bench of the Supreme Court decided a case – Hanif Qureshi vs State of Bihar– on the same question.
The Bihar Preservation and Improvement of Animals Act, 1956 imposed a total ban on the slaughter of all categories of animals belonging to the species of bovine cattle. The petitioner challenged the law on the grounds of violation of right to freedom of religion, right to freedom of trade and occupation and that the total ban was not good for general public.
The Supreme Court bench ruled that a total ban on the slaughter of bovine cattle was reasonable, valid and in consonance with the directive principles laid down in Article 48.
It further said that a ban on the slaughter of she-buffaloes or breeding bulls or working bullocks as long as they are capable of being used as milch or draught cattle was also reasonable and valid.
However, the apex court held that a blanket ban keeping uneconomic cattle under its purview was unjustified and violated a butcher’s right to freedom of trade and occupation.
THE 2005 CASE
In 2005, an even larger bench of the Supreme Court comprising seven judges heard another case dealing with ban on slaughter of cattle.
Revisiting its own 1958 ruling, the Supreme Court, in the case of Mirzapur Moti Kureshi vs State of Gujarat, overruled its nearly 50-year-old reasoning to state that ceasing to yield milk, to breed or to be used as drought animal did not make bovine cattle useless.
The apex court bench upheld the other two ruling in 1958 case.
The two-judge bench of the Supreme Court will be revisiting these previous ruling when it hears the plea, challenging Centre’s notification banning sale of cattle for slaughter in animal markets, next month on the ground that it undermines the right to livelihood (life) guaranteed under Article 21 of the Constitution.