Is Delhi beef law unconstitutional?

The police should have informed the competent authority who had the powers to conduct a raid.

A lot of ink has flown over legality of the Delhi police’s entry inside Kerala House to investigate an allegation that the canteen inside was serving beef. The issue has been debated both in political and judicial circles especially since Kerala, Delhi and the Union government are controlled by three different political rivals.

In a slugfest of allegations, a larger concern circumscribes the debate as to legality of the Delhi Agricultural Cattle Preservation Act, 1994. This legislative enactment prohibits slaughter of cows, calves, bulls and bullocks irrespective of their age (Section 5). It further prohibits transport/ export/ sale/ possession of these cattle for slaughter irrespective of whether slaughtered inside or outside territory of Delhi (Section 7-9).

At the threshold, it must be understood that a state guest house in Lutyen’s Delhi is not similar to an embassy in foreign territory having diplomatic immunity where police has to take prior permission before investigating a complaint. All state ho-uses in Delhi are not state owned properties and investigating agencies on a reasonable apprehension can very well enter into the premises and investigate.

But this statute being a special legislation, carves out power of entry, seizure and search under Section 11 only to Competent Authority such as Director, Animal Husbandry, Government of Delhi or the Veterinary Officer in writing. Generally, where statute books grant powers of search and seizure to officers or local commissioners, they write to the local police to accompany them on a raid which is usually abided by as well.

The correct course of action here would have been for the police to inform the competent authority who had discretionary powers to conduct a raid and then continue. The Hindu Sena members prima facie also seem to be guilty of criminal trespass under Section 441 of the Indian Penal Code as nothing empowers them to forcefully enter a premises and cause ruckus.

Nevertheless, the statute book must be tested on constitutional propositions and judicial pronouncements. Article 48 of the Constitution provides that the State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.

After considerable debates in the Constituent Assembly between one set of members who wanted a ban on cow slaughter to be placed within the enforceable fundamental rights (Part- III) and thus making it mandatory – and the other set, who opposed its very presence in the Constitution altogether, Article 48 was finally placed in Part-IV under Directive Principles of State Policy (DPSP).

The DPSPs, as has been time and again held, are in the form of judicially non-enforceable guidelines to the state for proper governance. Entry 15 of the Sta-te list under Seventh Schedule grants power to states to draft laws for preservation, protection and improvement of stock and Entry 17 of the Concurrent List permits both the Centre and the States to formulate laws for prevention of cruelty to animals.

Slaughter of bulls, bullocks

In Mohd Hanif Qureshi (1958), the Supreme Court held that a ban on cows was constitutional but a complete ban on the slaughter of bulls and bullocks, irrespective of their age and utility as breeding or draught cattle, was unconstitutional.

The court also observed the there was an agricultural justification to hold that a ban could only be of partial nature since it could not cover cattle that had lost their breeding/ draught purposes.

The court though partially reversed this position when a seven-judge bench upheld a complete ban on the slaughter of bulls and bullocks in Mirzapur Moti Qureshi Kasab Jamat (2005), the basic reasoning continuing to be agriculture.

Our economy has majorly been agrarian in nature. The Supreme Court is justified in banning cattle slaughter based on economic considerations. However, criminalisation of mere possession of cattle flesh is totally beyond what the founding fathers had in mind and what the Supreme Court pronounced.

Other statutes which criminalise possession are the likes of the Narcotic Drugs and Psychotropic Substances Act, 1985 (bans drugs and psychotropic substances’ possession beyond limits), the Arms Act, 1959 (bans possession of unlicensed arms), the Prevention of Cruelty to animals Act, 1960 (bans possession of animal skins etc) and Essential Commodities Act, 1955 (bans use of adulterated items in eatables). The rationale behind these statutes also cannot be under highest level of prudence stretched to possession of cattle flesh.

Insofar as the Delhi Act criminalises mere possession of cattle flesh under Section 8
and 9, it is ultra vires the Constitution. These provisions can not only be misused to book alleged traders but also innocent parties.

The Delhi government, instead of using this as a political weapon to demand control over Delhi Police, should treat this incident as an inspirational misery and work on improvement of such legislations which violate basic freedom of living with dignity which undeniably includes deciding on one’s possession of properties.

(The writer is an advocate, Supreme Court)