The first three years of the Narendra Modi-led NDA regime has been marked by a steady dissolution of constitutional values. The Union government has consistently and brazenly defied the constitution’s text and spirit, showing little regard for considerations of due process: demonetisation was implemented through pure executive fiat despite impinging deeply on several fundamental rights; a slew of legislation, including the Aadhaar Act, has been introduced as money bills with the sole intention of bypassing the upper house of parliament; and, most critically, important democratic institutions have been subverted through appointments made not on merit but based on nakedly ideological predilections. The latest salvo, a notification made on May 23 of the Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules, 2017 [Animal Market Rules] is aimed at eviscerating the constitution of its federal character. Although couched cleverly, the Animal Market Rules, especially Rule 22, which, through its operation, imposes a virtual ban on the sale of cattle in animal markets for the purposes of slaughter, militates against the constitution at various different levels.

Going beyond the Centre’s responsibilities

First, it’s plainly evident that the rules are an exercise in colourable governance. There might be no question that Article 48 of India’s constitution requires the state to endeavour to organise agriculture and animal husbandry on modern and scientific lines, in particular by taking steps for preserving and improving the breeds, and prohibiting the slaughter of cows and calves and other milch and draught cattle. This article, however, placed as it is in Part IV of the constitution, which contains the directive principles of state policy, is not justiciable in law. In other words, while a duty is cast on the state to make laws based on the urging of the various directive principles, no person can question the state in a court of law on the ground that a provision in Part IV stands violated by either the government’s action or inaction, as the case may be.

Moreover, in any event, the duty imposed by Article 48 has to be read in conjunction with the federal structure that India’s constitution imposes. The Seventh Schedule to the document, which contains three separate lists, defines the differing roles of governance respectively played by the Union and the state governments. On issues contained in List 1, the constitution provides that parliament alone can make laws; on issues mentioned in List 2, it is the state governments that have the exclusive power to make and enforce legislation; and, on issues contained in List 3, both the central and the state government can legislate, subject to the caveat that parliamentary law would prevail in the case of any conflict, except in certain limited circumstances. Under this design, by virtue of Entries 14 and 15 of List 2, it is the states alone that have been granted the power to make and enforce laws on issues concerning agriculture and the “preservation, protection and improvement of stock.”

To this end, virtually every state government has enacted statutes regulating the conditions for the slaughter of livestock and each state has their own sui generis approach to the issue. Certain states permit the slaughter of every type of cattle; others permit slaughter of cattle only on obtaining a “fit-for-slaughter” certificate from a designated authority; in some others, slaughter of cows is totally prohibited, while bulls, bullocks and buffaloes can be slaughtered on obtaining a “fit-for-slaughter certificate;” and in a few states, slaughter of any type of cattle is completely proscribed. Now, some of these state legislations may well have a deep bearing on its residents’ fundamental rights, but the state governments are unquestionably competent to make reasonable regulations to promote agriculture and to preserve livestock. But the Centre, on the other hand, altogether lacks the power under the constitution to make a law either banning or in any manner regulating the sale of cattle for slaughter.

It is to overcome this barrier that the Union government has now relied on a subject that falls within the concurrent list over which both the government at the centre and the governments in the states have the power to make, and enforce, laws: animal cruelty. The Animal Market Rules made under the Prevention of Cruelty to Animals Act, 1960, however, is an endeavour to do indirectly what the Union is expressly proscribed from doing directly. The Prevention of Cruelty to Animals Act, as a bare reading of its contents would make clear, concerns itself with practices that inflict unnecessary pain or suffering on animals. Its mandate isn’t – and indeed cannot be – to regulate the preservation, protection and improvement of livestock, something which is decidedly for the states to do.

The central government doesn’t openly contest this position. But its response, issued through a Press Information Bureau note on 27 May, is telling. The basic purpose of the rules, the note says, is to “ensure welfare of the animals in the cattle market and ensure adequate facilities for housing, feeding, feed storage area, water supply, water troughs, ramps, enclosures for sick animals, veterinary care and proper drainage etc.” The prime focus of the regulation, the note adds, “is to protect the animals from cruelty and not to regulate the existing trade in cattle for slaughter houses. It is envisaged that welfare of cattle dealt in the market will be ensured and that only healthy animals are traded for agriculture purposes for the benefits of the farmers…The notified rules will remove the scope of illegal sale and smuggling of the cattle which is a major concern.”

However, this stated intention is quite clearly contrary to Rule 22 of the Animal Market Rules, which imposes a positive obligation on the animal market committee, constituted under the notification, to ensure, among other things, that any form of cattle isn’t sold for the purpose of slaughter. Given that in most states in which cattle slaughter is permissible, there exist regulations mandating that sale for slaughter takes place in formally designated markets, Rule 22 would effectively act as a ban on cow slaughter. Ostensibly, the government’s target may involve the placing of checks on any unnecessary pain or suffering inflicted on animals, but in pith and substance the Rules are a measure aimed at proscribing the slaughter of cows, something which the central government, as we’ve seen, lacks the power to do.

Additionally, the PIB note also claims that the rules were notified to comply with a Supreme Court’s order that directed the government to frame guidelines “to prevent animals from being smuggled out of India for the Gadhimai Festival held in Nepal,” where large scale sacrifice of animals takes place. But it defeats every form of imagination to understand how the Supreme Court’s order relates to a ban on cattle slaughter in India. Rule 22, therefore, however we choose to read it, can only be categorised as an utterly colourable exercise of power.

Infringing on existing laws and right

Second, in any event, even assuming that the government possesses the competence to make legislation governing the sale of cattle for slaughter, the Animal Market Rules runs counter to its parent legislation, the Prevention of Cruelty to Animals Act, 1960. The law, in criminalising acts of cruelty against animals, specifically excludes those actions taken 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.” What’s more, the statute also specifically excludes from the ambit of its criminal sanctions actions which involve the killing of any animal “in a manner required by the religion of any community.” It’s clear, therefore, that the Prevention of Cruelty to Animals Act does not seek to enforce a ban on the killing of any animal whatsoever. The Animal Market Rules, however, seeks to travel beyond the contours of its principal legislation, by effectively seeking to ban altogether the slaughter of cows, buffaloes and camels – all of which are defined as “cattle”.

Finally, regardless of these technical assertions, the rules, especially Rule 22, it can be quite plausibly argued, infringe a number of fundamental rights, most notably the right to freedom of trade and business, guaranteed to citizens under Article 19(1)(g). In theory, on any reasonable reading of the constitution, this ought to be the strongest argument against the rules. But the Supreme Court’s record in testing state laws that ban the slaughter of cattle has been chequered, to say the least.

In 2005, a seven-judge bench of the court, in State of Gujarat vs Mirzapur Moti Kureshi Kassab Jamat, overruled a series of earlier decisions and upheld a law that sought to impose a total ban on the slaughter of cows and their progeny. Its reasons for doing so are entirely dubious. Even if a cow ceased to give milk, its dung and urine, Chief Justice R.C. Lahoti wrote for the majority, still possessed enormous value for the purposes of producing manure and fuel. The argument that there was at stake here the livelihood of hundreds of thousands of butchers employed at slaughterhouses, and various others employed in other connected industries, was brushed aside in one fell stroke. The court ruled that to give effect to Article 48 any element of restriction on a person’s freedom of trade and business was defensible. As a consequence, therefore, we have been left not with a harmonious interpretation between Parts III and IV of the constitution that the court had until then advocated, but with the creation of a hierarchy where unenforceable goals have somehow been accorded priority over fundamental rights.

The validity of the Animal Market Rules has already been questioned in different high courts and it is likely that at some point the challenge will reach the Supreme Court. When this happens, the court must not only strike down the rules on account of a lack of executive competence, but it must also reexamine its verdict in Mirzapur that validates laws banning slaughter of cattle. The court must recognise that our constitution’s finest democratic ideals are in danger of being lost here. It is time that it placed value on every citizen’s liberty and it is time that it guarantees to every citizen that the state will never be permitted to trample on their right to be treated with equal concern and respect.

Suhrith Parthasarathy is a lawyer and writer, and practices as an attorney at the Madras high court.