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What’s at Steak?: The Constitutional Cost of Beef Ban

Madhav Khosla is the inaugural BR Ambedkar Academic Fellow at Columbia Law School
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The ban on sale of cattle for slaughter amounts to butchering the Constitution

THE CONSTITUTION OF India is long, but does it tell you what to eat? This is no trivial question. It is an old problem for Indian constitutionalism whether restrictions on cattle slaughter are legal. The question troubled the Constituent Assembly, it has bothered courts since the 1950s, and it has now resurfaced. This time, though, the means are more interesting than usual—the restriction is part of a broader range of measures that regulate animal markets. The new rules were notified by the Ministry of Environment, Forest and Climate Change on May 23rd, 2017. They call for the registration of existing markets, list the procedure for new markets, create market monitoring committees, and so on. An exacting set of standards are outlined for animal markets: they must, for example, contain separate enclosures for young and pregnant animals, provide for non-slippery flooring, and arrange for both adequate lighting and adequate shade. Even veterinary inspectors are envisaged. Their job includes screening animals before they enter the market and maintaining a record of every animal that has been treated. The rules do still more. They list and prohibit practices of cruelty, such as hot and cold branding, the use of chemicals or colours on the body parts of animals, and castration ‘by quacks or traditional healers’. These rules are interesting in and of themselves, but it is rule 22 that has everyone’s attention. It restricts the sale of cattle for slaughter. Could such a restriction be constitutional? Many arguments might be imagined to support the validity of such a restriction. Some of these have already made their way into the public commentary on the matter. Each argument deserves to be considered—and each deserves to be rejected.

Before that, however, you may wonder whether we are right to be speaking about cattle slaughter at all. The notification of May 23rd is styled as a regulation on animal markets. It does not actually prohibit cattle slaughter. What it requires of salesmen is that ‘the cattle has not been brought to market for sale for slaughter’. Could one thus claim that the prohibition on the sale of cattle for the purpose of slaughter is distinct from a prohibition on slaughter itself? The short answer to this question is ‘no’. For a restriction to be valid, what matters is not merely its content but also its effect.

To see this constitutional principle at work, recall the famous Bennett Coleman case from the early 1970s. Here, newspapers were the site of attack. Policies relating to the import, sale, acquisition, etcetera, of newsprint, were challenged on the ground that they violated the fundamental right to free speech and expression under the Constitution. The state nicely claimed that the policies did not restrict freedom of speech and expression. After all, there was no limitation on the content of the written or spoken word. Instead, the argument ran, they were merely an attempt to regulate a commodity (that is, newsprint). The argument was clever but it attracted little support. The restrictions were struck down. State action, it was declared, must be judged by the impact it had. And the impact was clear: free speech and expression were unreasonably infringed because the rationing of newsprint would take away the circumstances that made speech and expression possible. This principle applies across forms of state action. The general maxim is familiar—when an act is prohibited directly, it is prohibited indirectly.

You might wonder why the Central Government did not simply pass a new law. The reason is that a ban on cattle slaughter is not only outside the scope of the Prevention of Cruelty to Animals Act, it falls outside the scope of the Central Government’s power per se

Little analysis is required to see that the end of a market for cattle for slaughter would seriously impact if not eliminate cattle slaughter. The new restriction cannot hide behind the veil of animal regulation. The restriction on cattle slaughter itself must be defended. To see that this is the case, one could simply ask why the sale of cattle for slaughter would be a problem at all if there was no problem with cattle slaughter. If cattle slaughter is permissible, what independent vice is sought to be cured through preventing the act of sale? Why would this vice not apply to other animals? Further, if the ‘sale’ is the vice, then it must cover all acts of sale regardless of the purpose for which the sale is being conducted. Obviously enough, the sale is not the problem here.

Once this initial matter is settled, we are faced with a range of other arguments. The rules source their power from the Prevention of Cruelty to Animals Act, 1960. Might one highlight this and claim that their validity flows from the authority granted by the parent statute? The Act’s self-described aim is ‘to prevent the infliction of unnecessary pain or suffering on animals’. It creates an institutional structure, notably an Animal Welfare Board of India; prohibits acts of animal cruelty; regulates experiments on animals; and so forth. In two separate instances, the Act envisages the slaughter of animals. First, it empowers the Board to advise the government or other authorities ‘in the design of slaughter-houses or the maintenance of slaughter houses or in connection with slaughter of animals so that unnecessary pain or suffering, whether physical or mental, is eliminated in the pre-slaughter stages as far as possible, and animals are killed; wherever necessary, in as humane a manner as possible’. Secondly, the list of prohibited cruel treatments—like confining an animal in a cage without the chance for adequate movement— are inapplicable during ‘the commission or omission of any act in the course of the destruction or the preparation for destruction of any animal as food for mankind unless such destruction or preparation was accompanied by the infliction of unnecessary pain or suffering’.

The first provision clearly imagines the existence of slaughter- homes, otherwise there would be no homes to design. The second affirms the killing of animals for human consumption; such an act of killing is not an act of cruelty. Gautam Bhatia has rightly noted that a reading of both provisions suggests that the rules fall outside the powers of the enabling legislation. It is a basic principle of administrative law both in India and other common law nations—a principle known as substantive ultra vires—that an executive order must conform to the legislative enactment that is the source of its power. But here the enabling legislation, the Prevention of Cruelty to Animals Act, offers the executive no power to institute a blanket ban on cattle slaughter. The order is quite simply against the intention of the primary legislation.

You might wonder why the Central Government did not simply pass a new law. The reason is that a ban on cattle slaughter is not only outside the scope of the Prevention of Cruelty to Animals Act, it falls outside the scope of the Central Government’s power per se. Entry 15 of List II of the Seventh Schedule to the Constitution— which lists topics that fall within the exclusive competence of the states— deals with the ‘preservation, protection and improvement of stock’. It is this provision that covers cattle slaughter rather than the entry in the concurrent list that speaks to the prevention of cruelty to animals. It is in fact Entry 15 of List II that state governments have consistently relied upon since the 1950s in enacting laws that restrict or ban the slaughter of animals. An attempt by the Central Government to regulate cattle slaughter is a naked usurpation of power that lies with the state governments. The attempt puts the Government in a nice legal trap: If the Prevention of Cruelty to Animals Act does not permit the executive to ban cattle slaughter, then the notifications are invalid because they exceed the scope of the Act. If the Act does allow for such a restriction, then this portion of the Act is invalid for it falls outside the competence of Parliament. Either way, the new restriction is in trouble.

Regardless of whether the restriction on cattle slaughter is an accurate representation of what the people want, it is wanting in legitimacy. The ban is quite clearly an attempt to satisfy the religious sentiments of a large number of Indians

BEYOND FEDERALISM concerns, the restriction is even in trouble with regard to fundamental rights. For a moment, put aside the question of whether it is the Central or state governments that have the power to ban cattle slaughter. Does any government have this power? To answer this question, we must turn to the constitutional text. Article 48 of the Constitution, a provision in the Directive Principles of State Policy chapter of the text, is worth quoting in full: ‘The state shall endeavour to organize agricultural 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 mulch and draught cattle.’ Much has already been said about the history of this provision. The negotiations that led to the inclusion of this provision are important, but regardless of this history the fact remains that this is a provision within the constitutional text. Could a state ban on cattle slaughter rely on its words?

Constitutional provisions can never be read in isolation. Our fidelity is to the text as a whole, and any provision must be understood in light of other provisions. We must conform to all of the Constitution, not to one provision at the cost of another. Article 48 is concerned with modern approaches to agriculture and animal husbandry, and its protection towards a class of cattle is to be understood in ways that further this overall objective. Importantly, the obligation it imposes must be interpreted alongside Article 19(1)(g). This provision grants citizens the fundamental right to practice any profession or to carry on any trade, occupation, or business. Restrictions may be imposed on this right, but they must be reasonable and in the public interest. It is here—in determining the scope of Article 19(1)(g)—that the matter becomes interesting and the Supreme Court’s record become important.

In the late 1950s, the Supreme Court was faced with varying cattle slaughter laws that had been passed by three states. The laws were challenged as destroying the business and occupation of butchers. The states, however, claimed that the restrictions were limited to select animals. As such, they did not end the butcher trade. The Court found several important uses for cattle, from milk for food to manure for agriculture. These were factors in assessing whether the measures were reasonable in the interest of the general public. The same was true for the inconvenience that would be caused to the butcher community, even if they might find ways to reorder their businesses. After surveying a range of reports, the Court concluded that milch cattle, breeding bulls, and working bulls were crucial in the Indian context. It also concluded that the maintenance of useless cattle was a major cost, and took resources away from the upkeep of useful cattle. The Court’s ultimate ruling was clear: an indiscriminate ban on cattle slaughter, one that failed to distinguish between, say, breeding, milch or draught animals and others, would be unconstitutional. A blanket ban that involved no consideration of matters such as age or usefulness offered no rationale for its existence. A law that fell victim to this vice would be unreasonable.

India, as we are reminded every day, is a democracy. What could democracy mean except rule by the majority? If a ban on cattle slaughter has popular support, it should surely find legal articulation. Such a view somehow ignores the fact that we also live in a society governed by the rule of law

Soon thereafter, the Supreme Court was again faced with similar measures, and declared that it would not be enough for a law to merely specify an age or offer a criterion for distinction between animals. That criterion itself would be examined. In the case at hand, allowing the slaughter of bullocks only after they reached the age of twenty years was seen as unreasonable for there was no basis for setting this particular standard. The impact of procedural hurdles would also be factored in. For example, allowing appeals to a board on whether a particular animal could be slaughtered was impermissible for it would effectively stall all butchering. A decade later, these principles were reiterated. A notification that cancelled bye-laws that had regulated slaughter homes was struck down. By taking away the right to run slaughter-homes, one had taken away the ability to engage in cattle-slaughter. A complete ban of this kind, which applied regardless of animal’s age or usefulness, was arbitrary and found no constitutional support.

Other decisions similarly affirmed that an indiscriminate ban that did not appeal to any principle or provide any rationale for its existence could not stand. But constitutional waters in India inevitably get muddied, as they did by the Supreme Court in 2005. This time, the Court upheld a complete ban on the slaughter of cow and cow progeny. The phrase ‘cows and calves’ in Article 48, it felt, would apply even to cows and calves that were no longer milch or draught. This is a bizarre interpretation, in part because it runs counter to a literal reading of Article 48 and in part because it suggests that there is no relevant difference between milch or draught cattle and cattle that are no longer of use. Much can be said about how the Court arrived at this strange conclusion. Its study of the requirements of reasonableness and public interest survey an odd set of sources, make numerous presumptions about the Indian economy and its functioning, and leave a great deal to be desired. Yet, even this decision cannot provide much support to the Government in the present case. The Court upheld the prohibition because it applied to only one class of cattle, even if it was indiscriminate within that class. Other cattle could nonetheless be slaughtered. The May 23rd notification, however, does not even have this virtue. It restricts the sale of cattle for the purpose of slaughter—and this restriction is applicable to all cattle. Under the notification, cattle are defined as ‘a bovine animal including bulls, bullocks, cows, buffalos, steers, heifers and calves and includes camels’. The restriction is thus indiscriminate both within and across classes of cattle. The reason for this is simple enough—a narrower restriction would have exposed the religious motivation for the measure.

Politics is about the exploitation of difference, and the new restriction is merely an illustration of a broader pattern that plagues political life. Such a view is anti-modern in a profound way: it denies the possibility of change. It rejects our capacity to be continually constituted and reconstituted, and embraces essentialism

At the very end, supporters of the notification might still remain unconvinced. They might, in a last-minute act of desperation, turn to two final arguments. One would be a tired defence of democratic government. India, as we are reminded every day, is a democracy. What could democracy mean except rule by the majority? If a ban on cattle slaughter has popular support, it should surely find legal articulation. Such a view somehow ignores the fact that we also live in a society governed by the rule of law. The upshot of this is that several features of our constitutional state—like constitutional states elsewhere—do not satisfy a narrow democratic principle. Members of the executive are not independently voted upon, judges are unelected officials, the first-past-the- post system does demand a majority of votes to succeed, etcetera. This does not mean that the relationship between democracy and constitutionalism is at odds. But it does show that the relationship is decidedly more complex than many sometimes argue. As John Gardner once reminded us, having a democracy depends on having the rule of law—a system that is not governed by general rules, whose power is secured through independent institutions, cannot be regarded as any form of rule at all, whether by the people or anyone else. Our general rules are in the Constitution, and the degree to which the restriction on cattle slaughter departs from the document should disturb us all. The moral legitimacy of democratic rule rests on its capacity to do more simply represent popular opinion. It rests on bridging the gap between representation and legitimacy. Regardless of whether the restriction on cattle slaughter is an accurate representation of what the people want, it is wanting in legitimacy. The ban is quite clearly an attempt to satisfy the religious sentiments of a large number of Indians. If the attempt had truly been to organise animal husbandry in a scientific way—which is the real objective of Article 48—and to respond to a range of issues that affect the interests of animals, we would be analysing a very different set of legal measures and having a very different debate. To hide behind the cause of animal cruelty seems like a kind of cruel joke. To impose consumption patterns on others to satisfy our own religious desires, to make religious sentiments the basis of our shared collective life, is a form of coercion that is hard to square with any basic commitment to equality. The logic it rests upon offers a poor justification for the exercise of state power. We must ask, perhaps now more than ever, whether we believe in the rights of others.

A second closing response to the restriction on cattle slaughter might be a kind of quiet indifference, even a form of inarticulate acceptance. All governments, the argument might run, will attempt at satisfying different sections of the population at different times. Some measures will support the business industry, some will satisfy liberal voices, some will appeal to members of a religious community. Politics is about the exploitation of difference, and the new restriction is merely an illustration of a broader pattern that plagues political life. Such a view is anti-modern in a profound way: it denies the possibility of change or transformation. It rejects our capacity to be continually constituted and reconstituted, and embraces essentialism. It is a narrative that sees us as doomed. This vision of politics cannot be classified as some form of realism. It is rather a kind of cynicism. In succumbing to such cynicism, the Government has abandoned much of what its modernising rhetoric once proclaimed. In recent months, a great deal has been written about India’s current political scenario. Such writing has often underlined hard and brutal facts to paint a dark picture of our reality. But perhaps the greatest tragedy of our times is a certain loss of imagination. Since Nehru, it is hard to think of anyone who had the courage to reimagine the character of our collective life. It now seems naïve, perhaps even silly, to suggest that India could be governed on different terms; that its politics need not involve an endless saga of comparison and conflict and patronage and power-struggles between different communities. The idea that individuals may have spaces for freedom from the strong arm of the state and the rigid bonds of society—that individual freedom might be an idea—is for the taking, but one cannot help wonder whether anyone is interested.

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