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Why the New Curbs On Cattle Trade May Not Survive a Legal Challenge

Does the Centre have the power to make rules prohibiting the slaughter of animals for food and religious sacrifice, or on their sale for these purposes?

Men load a cow onto a truck in the Jantar Mantar area of New Delhi (Representational image). Credit: Reuters/Cathal McNaughton

The jury is still out on the legality of the Centre’s May 23 notification imposing outrageous curbs on cattle trade. But the salient features of the challenge to it have become clear, thanks to the reasoned interim order of the Madurai bench of the Madras high court, which stayed the Centre’s order on Tuesday, May 30.

Although the case was not listed in its causelist on May 30, the vacation bench of the court, comprising Justices M.V. Muralidharan and C.V. Karthikeyan, understood its urgency and granted the stay, for four weeks, after hearing both the petitioner and the Union of India for nearly an hour.

It is doubtful whether the Supreme Court’s vacation bench, if approached by public interest litigants for similar interim relief under Article 32 of the constitution, would have agreed to hear it, as the matter would not have qualified under any of the specified grounds to justify its immediate hearing and intervention during the ongoing vacation.

While the matter relates to and is of general public importance – one of the specified grounds to grant urgent hearing – the Supreme Court may not be inclined to hear it during the vacation even to provide interim relief, as its hesitation to hear and provide similar interim relief to those aggrieved by the mandatory requirement of Aadhaar enrolment shows. This case is now listed for hearing on June 27 by a constitution bench, subject to its availability.

The question whether the Supreme Court’s vacation bench would accord equal urgency to the cattle trade case, as the vacation bench at Madurai has done, assumes significance because in all likelihood the Supreme Court will transfer to itself all such cases pending in the high courts, in order to avoid conflicting decisions on the same issue. It would then be of interest to know whether the Supreme Court lets the Madras high court’s stay order continue.

Already, the discordant notes from the high courts can be heard. The Rajasthan high court, on Wednesday, in a different case, has recommended to the Centre to declare the cow as the national animal and enhance the punishment for cow slaughter to life imprisonment.

The Kerala high court bench, comprising chief justice Navniti Prasad Singh and Justice Raja Vijayaraghavan, on Wednesday dismissed a public interest litigation challenging the Prevention of Cruelty to Animals (Regulation of Livestock Market) Rules, 2017 (PCAR), filed by a Youth Congress leader, as withdrawn. While doing so, the bench has expressed its disagreement with the Madurai bench of the Madras high court that the Centre’s May 23 notification prima facie amounted to a ban on trade in cattle meant for slaughter. The Kerala high court was of the view that trade for slaughter of the cattle could still be carried on outside the animal markets. But the high court did not clarify why the Centre should make a distinction in the case of animal markets.

Another petition filed before the Kerala high court by K.U. Kunju Mohammed, who is engaged in cattle trade for the purpose of slaughtering for human consumption in Kaloor, Kochi, and Hibi Eden, MLA, Kaloor, asks for similar interim reliefs. Kunju Mohammed can claim the necessary locus standi for filing it, being aggrieved personally with the rules. A single judge, justice P.B. Suresh Kumar, has reserved interim orders on this and another petition filed by Kozhikode District Meat Workers Association, both seeking a stay on the notification, besides challenging it on merits.

If, as the reports suggest, the notification was a result of the Supreme Court’s directions in a case drawing attention to smuggling of cattle across the border in Nepal and Bangladesh, the correlation between the curbs on animal markets and the smuggling is not all that clear.

Madurai bench’s decision

The petition against curbs on cattle trade before the Madurai bench has been filed by S. Selvagomathy, a social activist based in Madurai, and argued by her lawyer M. Ajmalkhan.

Rule 22 (b) (iii) of the PCAR, dealing with the restrictions on the sale of cattle, requires the member secretary of the Animal Market Committee to ensure that no person shall bring a cattle to the animal market unless upon arrival he has furnished a written declaration signed by the owner of the cattle or his duly authorised agent, stating that the cattle has not been brought to market for sale for slaughter.

Rule 22(e) (i) requires the purchaser of the cattle to not sell the animal for purpose of slaughter, among other things.

Selvagomathy has prayed for a declaration that both these provisions are ultra vires the PCA Act, 1960 and Articles 14, 19, 21, 25 and 29 of the constitution.

Contending that the legislature had not categorised the slaughtering of animals for the purpose of food to be an act of cruelty, the petition points out that the PCA Act anyway sought to prevent it. Section 11(3)(e), which provides for killing of animals for food, has been emphasised in the petition.

The petition draws attention to Section 28 of the Act, which clearly says that killing of any animal in any manner required by the religion of any community is outside the purview of the Act.

Selvagomathy has argued that Section 38(2) of the Act does not delegate any power on the central government to make rules concerning matters outside the purview of the Act. Therefore, the central government is not competent to make any rules for prohibiting slaughter of animals for food or religious sacrifice or the sale of animals for such purpose, she has submitted.

Agreeing with her, the bench observed in its order thus: “A delegated power to legislate by making rules for carrying out the purposes of the Act is a general delegation without laying down any guidelines; it cannot be so exercised as to bring into existence substantive rights or obligations or disabilities, not contemplated by the provisions of the Act itself.”

Citing the Supreme Court’s judgement in Supreme Court Employees Welfare Association v Union of India (1990), the Madurai bench, reproduced paragraph 98 from it as follows: “Rules whether made under Constitution or a statute, must be intra vires the parent law under which power has been delegated”. In paragraph 62 of the same judgement, the Supreme Court had held: “A delegated legislation or a subordinate legislation must conform exactly to the power granted”.

When the slaughter of animals for food or for animal sacrifice and the sale of the same as a preparatory measure of such slaughter are not sought to be regulated by the express intention of the PCA Act, the central government has no jurisdiction or power to frame rules to achieve the same purpose, the petition submits.

By prohibiting slaughter for religious purposes, the centre has sought to emasculate the right of every citizen to freely practice his religion, according to the belief of his community, it argues.

“The practices associated with religion or rites perceived by the community to be a part of worship, is an essential façade of religion, protected under Article 25 of the constitution… A right under Article 25 can be restricted on the grounds of public order, morality and health or grounds enumerated under Article 25(2), only by a law made by the legislature and not by the delegated executive fiat having no backing of the enactment made by the legislature”, the petition further explains.

The petition relies on Article 29 of the constitution to claim that the cultural identity of communities, which includes foods and culinary made out of animal flesh and offering sacrifice of animals, has also been threatened.

The petition explains that Article 19(1)(g) of the constitution is attracted because the sale of animals is a trade and business, and a citizen’s right to carry on any occupation, trade or business has been guaranteed by this provision.

Article 19(1)(g) can be reasonably restricted only under Article 19(6) by a law made by the competent legislature in the interest of public or for reasons mentioned therein. The petition suggests that imposing a complete ban on the sale or slaughter of animals, irrespective of whether the animal is economically useful, is a burdensome interference into the freedom of trade.

The petition cites a key paragraph in M.H. Qureshi v State of Bihar (1958) as follows:

“The maintenance of useless cattle involves a wasteful drain on the nation’s cattle feed. To maintain them is to deprive the useful cattle of the much needed nutrition. The presence of so many useless animals tends to deteriorate the breed.”

The complete ban of sale or purchase or resale of animals, would cast a huge economic burden on the farmers, the petition apprehends. Farmers will come under pressure to lower their standard of living and nutrition, and this would encourage cow vigilantes to harass them, the petition anticipates.

Violation of the right to livelihood of those engaged in the cattle sale, and slaughter houses and their employees, under Article 21 of the constitution, is another ground invoked by the petitioner.

As “markets and fairs” and “preservation or protection and improvement of stocks” fall within entries 28 and 15 of the state list, only state legislatures are competent to make laws on those fields. Therefore, in pith and substance, the rules under challenge, insofar as they regulate livestock markets with an intention of preserving, protecting and improving stocks, have been described as legislation on fields earmarked for the state legislature, thus breaching the cardinal principle of federalism, a basic feature of the constitution.

Emasculating the state legislature of its domain of legislation, especially when the parliamentary enactment on the subject does not empower such rule making, is a direct attack on federal structure, and is, therefore, void, the petition has suggested.

The Madurai vacation bench, in its order, has underlined the fact that the PCA Act is in the concurrent list under entry 17, whereas the slaughtering of animals is exclusively in the state list. “Under the above background, it should be tested whether the impugned rules are within the constitutional and/or legal framework and have consideration over and above the state enactments in this secular country,” the bench has observed.

The rules have been assailed also on the ground of violation of the right to equality under Article 14 of the constitution. While the object of the rules is to protect and preserve all livestock, a discriminatory segregation between owners of cattle and other animals like goat, sheep or poultry has been created. Such discrimination is not based on any intelligible differentia, having any nexus with the object sought to be achieved by the rules, and therefore, offends equal protection of the law guaranteed under Article 14 of the constitution, the petition has submitted.