Why government's new cattle trade restrictions are unconstitutional
The gazetted notification number 396 on May 23, 2017, called the Prevention of Animal Cruelty Act (Regulation of Livestock Markets), threatens to cause an "effective" ban on cattle slaughter nationwide, leading to much brouhaha and sparking contentions over federalism once again.
The restrictions on cattle trade that have been proposed in the new rulings, notified by the Union ministry of environment and forests, severely crunch the scope for purchase and sale of bovine animals at the animal markets, by including the clause that they cannot be bought or sold for slaughter, and only for agricultural purposes such as dairying, or farming.
Catch (rule) 22
Rule number 22 of the new notification is the crux of the effective ban on cattle slaughter and it's titled "Restrictions on cattle trade". It is in this clause that it's said that the buyer/seller of the cattle at the animal market would have to sign an undertaking to the newly legislated Animal Market Committee that the animal isn't being exchanged for slaughter.
Moreover, the new rules require that animal markets cannot be set up within 25km of a state border and 50km of the international border. In addition, multiple copies of identity proofs of both the owner/buyer and the cattle would have to be provides to ensure traceability and prevent smuggling and other illegal practices.
Read the clause in detail here.
Why the cattle trade restrictions are unconstitutional
Though a petition challenging the ruling is yet to be filed in the court, a number of legal experts have already termed the new law "ultra vires", or unconstitutional, as it is contradictory to the parent legislation, PCA 1960, itself.
The primary objections to the new ruling are premised on the fact that animal slaughter for human consumption is perfectly legal under the Act, if it does not involve any unnecessary pain. Section 11 (3)e of the PCA 1960 declares that killing an animal for food isn't prohibited unless it's accompanied by unnecessary pain or suffering. What the new ruling does, in effect, is equate slaughter for food purposes itself as "cruelty", which is directly contradicting the original act.
Secondly, there are no special provisions or exclusions for cow/cattle under the PCA 1960, and the "cruelty" clause cannot be brought in to legislate a new rule that doesn't include other animals harvested for meat such as chicken, goat, sheep, etc. There exist several legislations at the state level that allow cattle slaughter in states like Kerala, Manipur, West Bengal, Nagaland, Goa, and other states, and the Union has no business butting into what is essentially a legislative territory of the state, in accordance with local customs and traditions.
Thirdly, the Centre's backdoor entry into something that's essentially a state matter through the PCA 1960, in which both the Union and the States have joint oversight, is extremely regressive and opens a Pandora's box of constitutional conundrums. Given that Section 11 (3)c of the PCA 1960 allows slaughter permitted under other laws, the impact of the new ruling would be to curtail the scope of the parent legislation itself.
Threat to right to livelihood, freedom to eat
The new, and as argued above, unconstitutional restrictions on cattle trade are a direct threat to the livelihoods of millions of crop farmers, dairy farmers, and those employed in para industries such as beef, leather, fertiliser, chemical products et al.
Not only does the effective ban on cattle slaughter impose an arbitrary constraint on the availability of cattle - including cows, bulls, bullocks, oxen, heifers, steers, buffaloes, camels - for slaughter, by bringing in extreme and unnecessary regulations that will suck the life out of animal markets/fairs, the very nuclei if animal trading, it also threatens to throw out of job millions of rural and urban people dependent on cattle trade for their day-to-day living.
A number of reports have looked at how Indians will incur the losses for this highly unprofitable and economically unviable crunching of cattle trade.
Impact on farmers
The new rules effectively burden the farmer with incapacitated, old and infirm cattle as there remains hardly any outlet to reduce the farmer's burden when the animals cannot contribute to the agricultural process. The choked trade of cattle would mean that the farmer would be weighed down by the upkeep of animals that have zero resale value, while adding nothing to his coffers. The increased cost would push the farmer to incur further debt, in an already debt-ridden environment, less bank loans to buy new, healthy animals and responsibility to keep feeding the cattle anyway.
As reported, already cow shelters in Uttar Pradesh are witnessing starvation deaths of cattle owing to overpopulation. We need to ask what's more cruel - starving animals to death over days, or a swift slaughter with minimum pain - when we debate the philosophy of cruelty and its impact on the animals themselves.
The government has not legislated any means to ensure any allowance to the farmers burdened with infirm cattle thus. How will the poor, monsoon-dependent farmer feed the animals and be able to sustain his family as well? The new rules provide zero provision to tackle the inevitable emergency of entire agricultural sector being pushed towards an even more vicious cycle of poverty.
Impact on beef, leather and dairy industries
A Reuters report says that the new ruling would severely decimate the $ 4 billion beef industry in India and the millions employed in it. India is the biggest importer of buffalo meat, amounting to 1.3 million tonnes in 2016-17, and the fresh restrictions threaten to pull the rug from under the table.
In addition, the report also states that the predominantly Muslim-driven beef and leather industries would be hit the hardest, and this could lead to fresh communal tensions, while further emboldening the cow vigilantes. As has been experienced before, documentation has not been able to prevent the disgusting and barbaric lynchings causing deaths of a number of people belonging to Muslim or Dalit communities in various parts of the country.
Meat traders rightly fear that meat supplies would come to a halt, and beef violence would escalate as a result of these patently unfair and in a way illegal rules. In addition, these rulings tend to give an air of righteousness to the cow vigilantes, making transportation of cattle for even agricultural purposes a life threatening activity.
While impacting the smaller and middle-grade farmer, cattle entrepreneurs, the ruling would actually help the big meat capitalists, who would be able to buy cattle at throwaway prices from poor farmers and make a killing, quite literally, profiteering from the Centre's unfair intervention into what's patently a private matter.
Breach of federalism causing political backlash
Because the Prevention of Cruelty Against Animals Act (1960) is a Central Act, with both the Union and the States having a say and oversight, using PCA to bring in an effective ban on cattle slaughter is a breach of federalism. As argued above, it's a direct threat to the right to livelihood, right to eat and civil liberties accorded by the Constitution of India.
No wonder then, the new ruling from the Centre has seen a strong political backlash from non-BJP states like West Bengal, Kerala, etc, where the respective chief ministers - Mamata Banerjee and Pinarayi Vijayan - have hit out sharply at Prime Minister Narendra Modi and his government's cow belt agenda. In addition, DMK leader MK Stalin, CPM leaders, Congress top brass have objected to the new restrictions on cattle trade, both on constitutional and federal grounds.
The beef festival organised in Kerala by Youth Congress Workers and the "public slaughter" of a calf have resulted in a counter backlash in the Sangh universe. But moves and counter moves notwithstanding, the fresh restrictions are slated to wreak havoc on India's already weakened agricultural and related sectors.
Hindutva's cow bureaucracy
Modi government's initial promise of "minimum government, maximum governance" has been comprehensively betrayed, to the extent that the opposite is in fact true. This is big government and terrible governance writ large, invading into citizens' private spaces, telling them what to eat, what to say, whom to love, et al.
The fresh restrictions under rule 22 of the PCA amendment would not only cause a slaughter of farming and related sectors, but would bring upon mass starvation of cattle themselves. The cow bureaucracy of Hindutva would license red tape in the name of the holy cow, going directly against the mandate of 2014 Lok Sabha elections that voted Modi to power.