Opinion: Centre has not banned cow slaughter but has introduced a new licence raj around it

Contrary to certain news reports, the Union Government has not banned cow slaughter. The Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017, notified by the Centre on May 23 only regulates the manner in which animal markets are supposed to function, and how the animals brought for trade are to be treated there. These Rules do not, at any point, ban cow slaughter though there are certain provisions that relate to the slaughter of cattle.

The Rules have not been introduced all of a sudden. A draft version was placed in the public domain in January, but seems to have escaped the notice of most people, especially those directly affected by it. Given that the Rules were made public only in Hindi and English, it is quite likely that the bulk of agriculturalists and pastoralists directly affected by them had no idea they were even coming.

Although the Rules themselves do not say it, the justification for them can perhaps be traced to the directions of the Supreme Court last year in the context of a public interest litigation filed to put an end to cross-border cattle smuggling from India to Nepal. The Ministry of Environment and Forests then undertook to issue new rules under the Prevention of Cruelty to Animals Act, 1960, within six months, to check such cross-border cattle smuggling. These Rules attempt to do so by directing that animal markets not be located within 50 km of any international border.

However, the Rules also provide for a wide range of dos and don’ts that have been interpreted as some sort of nationwide ban on cow slaughter. The Rules do not, in fact, say so. Even if they did, they would have to be struck down as unconstitutional by the High Courts or the Supreme Court.

What the Rules actually say

The general purpose of the Rules is to regulate animal markets – places where cattle and other livestock are offered for sale and purchase. The bulk of the Rules are devoted to detailing the minutiae of how the cattle are to be treated, who is responsible for the proper management of animal markets and so on. Most of these are unobjectionable, and while some of them are bureaucratic and tedious, it is nothing out of the ordinary for the government. The controversial part of the Rules seems to be Rule 22, which seems to suggest that animals sold in the markets cannot be slaughtered.

While this Rule has been interpreted to be a ban on the sale of cattle for slaughter, it is actually a direction to the member secretary of the Animal Market Committee to ensure that Rules relating to the sale and purchase of animals are complied with. This includes such mundane things as “keep a record of name and address of the purchaser and procure his identity proof” all the way to something more wide-ranging such as ensuring that the purchaser of the cattle does not sell the animal for the purpose of slaughter. The member secretary of the Animal Market Committee is, under the Rules, the chief municipal officer or chief officer of the local civic authority. This officer has no police powers under these Rules or any other law to forbid anyone to slaughter cattle if the law in that state otherwise permits it or regulates it. At best, this provision is homily, and at worst, a case of thoughtless drafting on the part of the government.

The only penal provision that might apply for violation of the Rules is Section 38(3) of the Prevention of Cruelty to Animals Act, which prescribes a penalty of three months imprisonment and a fine of Rs 100 “if any person contravenes, or abets the contravention of, any rules made under this section…” Even then, it is not entirely clear if the person who slaughtered the cow would be penalised under this provision, or the member secretary for failing to prevent him from doing so. However, there are good constitutional reasons for avoiding such a loose and over-broad interpretation of the Prevention of Cruelty to Animals Act.

Constitutional bar

Although Article 48 of the Constitution of India does exhort the State to prohibit the slaughter of cows, calves and other milch and draught cattle, it is placed in the Directive Principles of State Policy and hence non-enforceable in court. At the same time, the Constitution has demarcated the powers between the state and Centre with respect to cattle. The power to make laws on “preservation, protection and improvement of stock” is within the exclusive domain of the state legislature. It is under this entry (Entry 15 of List II of the Seventh Schedule) that the various cattle slaughter, regulation and prohibition laws (wherever enacted) have been made by various states.

On the other hand, the Constitution clearly grants the power to make laws relating to prevention of cruelty to animals to both the central and the state governments. Where there is a conflict between a central and a state law relating to animal cruelty, the central law will prevail – as the Supreme Court recently reiterated in the jallikattu case. The central law on the subject being the Prevention of Cruelty to Animals Act, any state law relating to animal cruelty, which conflicts with this will be overridden. However, a state law relating to animal husbandry in general, or cow slaughter in specific, would not be affected by this law and operate as is. Even if there is no state law expressly governing cow slaughter, the Centre cannot, through the Prevention of Cruelty to Animals Act or Rules, try to make a law banning or regulating cow slaughter.

No doubt there are valid concerns on the operation of this law and its potential to make the lives of farmers and pastoralists more difficult. It could very well make it more difficult to dispose of cattle and livestock in animal markets given the harassment and red tape that farmers may have to go through. That may only mean that private sales, where not prohibited under the law, will continue as is and slaughter, where regulated and permitted under the state law, will go on, as is.