Muazzam Nasir & Akshat Bhushan

Karnataka’s new cattle protection legislation falls foul of established constitutional tests and is directly in conflict with the Supreme Court’s rights jurisprudence on privacy.

Introduction

Recently, the Karnataka Legislative Assembly has passed a law completely banning ‘cow slaughter’ in the state. The law brings to the fore the anomaly of the states passing laws in contravention with the Fundamental Rights guaranteed by Part III of the Constitution. In the present case, we argue that the newly enacted law in Karnataka reeks of unabashed disregard for the established constitutional tests for infringement of Fundamental Rights as well as inconsistency with recent jurisprudence, which represents a shift in the cow slaughter debate.

An Expanded definition of ‘cattle’ and the reasonability test under Article 19

The Karnataka Prevention of Slaughter and Preservation of Cattle Act (2020) (hereinafter “the law”) is an inch ahead in contemplating a total ban on cow slaughter. The pre-existing law i.e., the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964 (hereinafter “earlier law”) restrictively prohibited the killing of a cow or calf of she-buffalo. Under the new law, the definition of cattle has been expansively formulated to now include “cow, the calf of a cow and bull, bullock and he or she buffalo under the age of 13 years”.

Before this latest attempt at an over-arching cow slaughter ban, the Union Government had previously pursued a similar ban by issuing the ‘Prevention of Cruelty to Animals (Regulation of Livestock Market) Rules 2017’. These rules had also changed the definition of cattle and banned the trade of different kinds of cattle for slaughter. The rules had explicitly posited that the cattle would not be bought or sold for the purposes of ‘slaughter’. The Supreme Court in All India Jamiat-ul-Quresh Action Committee v Union of India had suspended the ban stating that the rules affected the right to livelihood of those indulged in the cattle-trade. Further, in Hinsa Virodhak Sang v Mirzapur Moti Kuresh Jamat the Supreme Court has held that butchers have a fundamental right to practice their trade of meat selling under Article 19(1)(g) of the Constitution. It is our argument that the present law is analogous to those rules and that it would thus, not pass the ‘reasonability test’ under Article 19 of the Constitution.

The test to determine an infringement of Article 19(1)(g) is located in the mellowed restriction principle imbibed in Article 19(6).  This principle is the test of reasonableness and it rests on the shoulders of proportionality. In Anuradha Bhasin v Union of India, the Supreme Court had established that in accordance with the “test of proportionality”, the Government must consider if alternative measures to the restriction exist and thereafter place the least infringing restriction on the specific fundamental right. The least infringing restriction was already in place under the earlier law in Karnataka which did not envisage a complete ban on cow slaughter. A law in furtherance and expansion of the earlier law violates the fundamental right to trade as it fails to pass the test of proportionality. Therefore, an expanded definition is in contravention of the Supreme Court’s Jamiat-ul-Quresh and Hinsa Virodhak Sangh dicta which reject the same.

Evolving jurisprudence in the cattle slaughter debate

In a slew of recent cases, the Supreme Court of India has read down the right to make personal choices by interfering with people’s eating habits: notably, it gave a disappointing judgment in Om Prakash v State of Uttar Pradesh wherein it upheld a municipal ban on the sale of eggs in Rishikesh on the grounds that the residents and pilgrims would be inclined to have a ‘clean’ vegetarian environment in the holy city. Moreover, in 2015 the Maharashtra Government enacted a similar cattle protection statute which included bulls and bullocks within the definition of cattle. Even though the Bombay High Court struck down a few provisions of that Act, it upheld the ban on the slaughter of bull and bullocks within the state of Maharashtra.  This latter judgment is also relevant in the present context because the Court was hearing inter alia a matter related to the expanded definition of cattle in the cattle protection statute of Maharashtra.

The cow is worshipped and considered sacred by most Hindus in India. The Muslim community, out of respect for the sentiments of the majority community, has in various parts of the country, over the years voluntarily resolved to not slaughter cow. However, banning the slaughter, sale and possession of bull, bullocks and buffalo marginalizes Muslims on two accounts. Firstly, beef is a cheap and primary source of protein and is consumed mostly by people from the Muslim community. Secondly, the combined beef and leather industry accounts for more than 16 billion dollars in trade and the demographic associated with it is mainly Muslim.

The courts in India have blown hot and cold over the issue of cattle slaughter and beef consumption. We argue that the  previous judgments alluding towards such bans have been ‘sub-silentio’ overruled by the 2017 Supreme Court judgment in K.S Puttaswamy v Union of India which declared right to privacy as a fundamental right within the scope of Article 21. The Supreme Court classified the liberty to make personal decisions as the sine qua non of the right to privacy. According to the National Sample Survey Office (NSSO) data, more than 1 crore people consume beef and buffalo meat in the state of Karnataka. The law directly impacts their food choice and, as a consequence, their liberty to make a personal decision to consume beef.

Section 8 and its conflict with right to privacy under Article 21

Further, certain provisions of the law are directly in conflict with the right to privacy. In Puttaswamy, the Apex Court had held that protection from intrusive observation is an important facet of the right to privacy. Intrusion can only be justified when there is compelling state interest. The compelling state interest to cause a privacy intrusion has to be in line with the ‘procedure established by law’. The scope for such intrusion has been watered down in Puttaswamy to be ‘just, fair and reasonable’. The court had established that this standard of judicial review is to be ‘narrowly tailored’ which effectively means that an over-board attempt to apply the law would be violative of the right to privacy. The law violates the protection from intrusion principle as under Section 8 of the law, the authorities have the right to inspect and seize the cattle and premises if they ‘suspect’ a violation of the law. The State is expansively allowing the authorities to inspect and seize on the basis of ‘suspicion’ which does not fit the narrowly tailored criteria as suspicion does not definitively imply a violation of the law: thus, the State is allowing intrusion without strict belief of violation.

Section 17 and good-faith

Section 8 is further strengthened by Section 17 of the law which provides immunity to any person acting in good faith to prevent cow slaughter. Thus, individuals and authorities can effectively take the protection of the law to make a privacy intrusion. This is particularly alarming since cow vigilantes have been actively violent in India in the recent past.  The term ‘good faith’ has not been defined anywhere in the Act and it therefore, leaves a lot of scope for the so called cow vigilante organizations and individuals to operate with impunity. We admit that the good faith clause may not justify lynching per se because courts cannot acquit  a person on the basis of a good faith clause, in derogation of right to life and the right to live with dignity guaranteed by Article 21 and recognized by the Apex Court. However, no person in this country should be answerable to any private individual or organization for their personal choices. What the good faith clause does is, that it gives legitimacy and authority to individuals and organizations to intimidate people and question these personal choices. It is this legitimacy and authority that empowers these anti-social elements which in turn has a ‘chilling effect’ on the rights guaranteed under Article 21.

Notably, the good faith clause is not unique to the Karnataka legislation, but is a part of six other cattle protection statutes enacted by different states. The same was challenged in the landmark case of Tehseen Poonawala v Union of India and Ors. The judgment should indeed be hailed for having laid down preventive, punitive and remedial measures to tackle mob-lynching. However, it is very unfortunate that the Apex Court in that case, without stating any explicit reason, refused to go into the question of determining the constitutionality of the good faith clause in various cattle protection statutes. It is imperative that every State having a good faith clause in its cattle protection statute, should properly define the term ‘good faith’. This provision should only apply to law enforcement agencies and other Government officials that have been authorized by law, and all states including Karnataka, must put a ban on the operation of any kind of cow vigilante activity by any private group or individual.

Conclusion

The law has been enacted in complete disregard for the constitutional limits and boundaries that the legislature has to necessarily conform to. It goes over-board in mandating an expanded definition of cattle compared to the premise of the earlier law and thus fails to pass the reasonability criteria. Consequently, it violates the right to trade for people associated with cattle-slaughter and allied trades in Karnataka. Further, the law evades the evolving jurisprudence of Puttaswamy and adheres to pre-Puttaswamy notions of intrusion into the liberty of personal choice as well as personal space. The law persists with an undefined good-faith clause, which has been a constant feature of many cattle protection legislations. It is the need of the hour to ensure a standard definition of such a clause in these legislations that is restricted to government authorities and clearly prohibits any kind of cow-vigilantism.

To borrow from Justice Chandrachud: “A constitutional democracy can survive when citizens have an undiluted assurance that the rule of law will protect their rights and liberties against any invasion by the state”. The state, thus, has to curtain its laws within the contours of fundamental rights.

The authors are second-year students at the Hidyatullah National Law University, Raipur