India’s Harsh Anti-beef Laws are Heavily Weighed Against the Accused

Cows on Indian streets. Credit: McKay Savage, Wikipedia Commons

Cows on Indian streets. Credit: McKay Savage, Wikipedia Commons

Cow slaughter and beef consumption have become extremely contentious issues in recent months, with anti-beef laws becoming stricter in many states across the country. It would seem that there has never been a worse time in India to be a butcher or someone who eats beef. The recent arrests of three men in Haryana for allegedly selling beef has provided an opportunity to examine the laws that ban the slaughter of cows and the consumption of beef that are currently in operation in India.

A cursory analysis of state laws on cow slaughter and related offences highlights the severity with which these offences are seen, with their provisions providing for strict enforcement. Such strict laws, however, appear to compromise the rights of the accused, while also betraying a purpose that is not merely the protection of wildlife for environmental reasons.

Several of these legislations, particularly the Delhi Agricultural Cattle Preservation Act 1994, prohibit the slaughter of all “agricultural cattle”, defined as including “cows and calves of all ages, bulls, and bullocks”. The law ignores that beyond a certain age, cattle may no longer be useful for agricultural or other purposes, as is reflected in exceptions of other state laws. Many states, such as Andhra Pradesh, Assam, Goa, Karnataka, Odisha, Puducherry, Tamil Nadu and West Bengal allow cow slaughter on obtaining a ‘fit for slaughter’ certificate. These certificates are issued based on factors such as if the animal is suffering from permanent incapacitation, injury or incurable disease, if it is over 14 or 15 years of age, or has a contagious illness and is thus a risk to the environment.

On the other hand, Delhi, Haryana, Punjab, Jammu & Kashmir, Rajasthan and Uttar Pradesh are unconcerned with these exceptions, and appear to be fixated on protecting cows under any circumstance. If the idea is to protect “milch and draught cattle”, as provided under Article 48 of the Constitution and the Statements of Object and Reasons of these statutes (the Delhi Act, for instance, says it is “an Act to provide for the preservation of animals suitable for milch, draught, breeding or agricultural purposes”), then why is the slaughter of buffaloes not also entirely prohibited?

Although some laws do prohibit buffalo slaughter in some form, these statutes appear to conspicuously confer on the cow a higher pedestal of protection. For instance, the Madhya Pradesh Agricultural Cattle Preservation Act 1959, which includes male and female buffaloes in its prohibitive scope, says, “the State Government may exempt from the operation of this Act the slaughter of any male or female buffalo or the possession of flesh thereof for any religious, medical or research purposes”. The exception is thus only for the buffalo and not the cow, the slaughter and consumption of which remain banned under all circumstances. The Maharashtra Animal Preservation Act 1976 too makes such an exception.

The presumption of guilt

A common feature of these laws is placing on the accused the burden of proving that the slaughter, transport, sale, purchase or possession of cattle flesh did not violate the statute. Simply put, anti-beef laws reverse the presumption of innocence of the accused to a presumption of their guilt, a departure that is only rarely made in the legal systems of civilised nations. Indeed, the Supreme Court of India has held that the “presumption of innocence is a human right”, going so far as to say that Article 21 of the Constitution not only protects life and liberty but also envisages a fair procedure.

The presumption of innocence is done away with only in instances where the laws concerning terrorism, waging war against the state, offences against members of the SC/ST community, rape, abetment of dowry death and cruelty to animals are enforced. Crucially, these laws articulate the exact circumstances under which the presumption of guilt would operate.

Issues with independent testing

The anti-beef laws in Delhi, Uttar Pradesh and Maharashtra provide that “pending trial, seized agricultural cattle shall be handed over only to the nearest Gosadan, Ghoshala, Pinjrapole, Hinsa Nivaran Sangh and such other Animal Welfare Organizations”. This also includes the storing of meat samples. Although such bodies have been set up in these states, many issues exist.

First, some of these organisations are, by virtue of their stated aims and ethos, not the most trustworthy places to store the samples of meat or live cattle that have been seized. This is more apparent when they are run by NGOs that might have an ideological opposition to beef consumption, as in the case of the Manav Gosadan in Delhi, which is run by Jain Samaaj Delhi. Also, the indirect administration by NGOs is particularly problematic given the various criminal offences and procedures that these laws provide for, making the animals or meat samples being handled by these organisations extremely sensitive for evidentiary purposes.

The second problem with such organisations is that many Gosadans have in the past been reported to be in deplorable conditions. For instance, a 2001 report published by the Planning Department (Evaluation Unit) of the Government of Delhi acted as a scathing indictment of the poor working conditions of seven Gosadans in the capital, finding five of them “inexperienced in the field of Animal Welfare activities”, among several other issues relating to hygiene and facilities. The report also notes that “the NGOs of the Gosadans are not maintaining any record so it is difficult to ascertain the admission date of a particular cattle in the Gosadans. In the absence of this fact, it is not possible to ascertain the stay period of particular cattle in the Gosadans”. Thus, cattle or meat samples stored in such Gosadans cannot reliably be used as evidence at the trial of the accused.

The third issue relates to the independent testing of meat samples. Indian cow slaughter laws do not follow procedures similar to the Air, Water and  Food Safety and Standards Acts in matters of sample collection. In contrast to the elaborate measures outlined in those Acts, by excluding a detailed procedure to collect evidence to ensure no tampering or reduction in quality occurs, the cow slaughter laws fail to recognise the sanctity of the processes of criminal investigation and trial, where the admissibility of evidence is of utmost importance. Some state laws, such as those in Punjab and Madhya Pradesh, do not even provide for any procedure relating to the handling of the samples/animals before the trial commences.

Why so serious?

Given this absence of due process, one wonders why so many of their other provisions entail such an urgency and seriousness about the issue of cattle slaughter.

Under the Delhi and Maharashtra Acts, the mere possession of cattle flesh is an offence, regardless of knowledge on the part of the accused person as to provisions of the Acts being contravened. The new Haryana Gauvansh Sanrakshan and Gausamvardhan Act 2015 also bans the sale of canned beef.

Further, the powers of search and seizure have been accorded not only to police officers above the rank of sub-inspector, but also to veterinary officers and even the director of the Department of Animal Husbandry. Deeming them as public servants and providing protection for actions taken by them in good faith only allows miscreant officers to act with impunity in what has emerged to be a communally sensitive issue.

It is also important to note the pedestal of criminal offences at which cow slaughter and beef consumption are placed; according to the Indian state, these acts command the same level of moral condemnation as rape and terrorism, perhaps even more.

The quantum of punishment outlined by the state laws for these offences are comparable to punishments for far more serious issues. For instance, in Haryana and Jammu & Kashmir, the maximum punishment is ten years imprisonment – the same for offences related to waging war against the State, counterfeiting the Indian coin, slave trading, culpable homicide not amounting to murder and unnatural offences.

In addition, these laws often include provisions for a mandatory minimum sentencing (six months in the Delhi and Madhya Pradesh, one year in Rajasthan), which is usually associated with moral vices. Almost all these Acts also make these offences non-bailable.

In contrast, the legal position on cow slaughter in Kerala offers what appears to be the fairest setup at present – there is no state legislation concerning the slaughter of cattle. However, no ‘fit for slaughter’ certificates are granted unless the animal is over 10 years of age, and is unfit or permanently incapacitated for work or breeding due to injury or deformity.

The Constitutional question

At the heart of the controversy surrounding these laws is the conflict between two broad constitutional principles: one, the directive principles and fundamental duty prohibiting the slaughter of cows and milch cattle, and the general protection of wildlife in the interests of the environment; and two, the fundamental right of practicing any profession, trade or business, and the right of choosing one’s food.

A Supreme Court ruling in 2005 in the State of Gujarat versus Mirzapur Moti Kureshi Kassab Jamat case held that such laws are not total prohibitions, as they prohibited only the slaughter of one class of cattle, i.e. cows, and that “it is not that the (butchers) survive only by slaughtering cow progeny. They can slaughter animals other than cow progeny and carry on their business activity”.

However, present day realities illustrate how the apex court’s ruling is at best no longer applicable, and at worst, being used as a shield by political interests to fulfill nefarious ends; the ‘protection of environment and milch cattle’ clause is being used as a facade to pass laws to further the ideological and dietary dispositions of the Hindu majority.

Several state laws are expansive and ban the slaughter of buffaloes, bulls and bullocks along with cows. Some laws, like the Delhi Act, do not even make exceptions based on age and fitness. This clearly goes beyond what the Supreme Court laid down in the Mirzapur Moti case – if a butcher cannot slaughter a buffalo either, it is a much wider restriction on his profession than the Court had envisioned.

It’s all about religion

Further, even the narrative around the passing or amendment of such laws makes no pretences about the reasons being the religious sentiments of certain sections of the population. For instance, on the amendment of the Gujarat Animal Preservation Act in 2011 to impose harsher punishment, the government spokesperson said, “Gujarati people worship cow as mother. The tradition of worshiping cow is also found among adivasi community. Worshiping cow on the day of ‘Dhanteras’ along with worship of goddess Lakshmi holds a unique significance as cow is considered holy and symbol of prosperity”.

As the debate continues, it is important to note that the right of religion being claimed by sections of society to whom the cow is sacred to support the anti-beef laws has not been recognised by any Constitutional court in the country thus far, much less being recognised as a right that trumps the fundamental right of choice of profession and diet for others.

Vibhor Jain is a final year LLB student at Delhi University.