Updated: Jan 22

Ludhiana: On 8 January 2021, Abid Ali was attacked by Hindu vigilantes while transporting 12-15 head of cattle when his truck was forcibly stopped 170 km west of Ranebennur near the southern Karnataka town of Sringeri.

Ali was fortunate that locals helped him get urgent medical intervention and filed a case against his attackers, unlike other victims of lynch mob attacks, such as cattle trader Hussainabba, left to die on the highway by the Karnataka police in 2018.

One of Ali’s attackers was arrested, and the state law minister said people would not be allowed to take the law into their own hands. But Ali’s good fortune was eclipsed six days later when he became the first person to be arrested under Karnataka’s new anti-cattle slaughter ordinance.

On 10 December, Karnataka became the third Bharatiya Janata Party (BJP)-run state, after Haryana and Uttar Pradesh, to tighten its cow protection laws in Narendra Modi’s second term as Prime Minister, following a consistent pattern among BJP states.

Karnataka’s new cow law lets police make arrests without a warrant, permits police or “competent authorities”, such as vets, to seize cattle, premises merely on suspicion & provides immunity—as in nine other states—to vigilantes if they act in “good faith”.

In September 2019, the chairperson of the newly-constituted National Cow Commission (Rashtriya Kamdhenu Aayog) said the government intended to “strictly” ban cow slaughter in states where it is legal.

Cow slaughter is now legal only in six states, including Kerala, Arunachal Pradesh, Manipur, Meghalaya, Nagaland and Mizoram.

Karnataka’s Legislative Assembly passed the Karnataka Prevention of Slaughter and Preservation of Cattle Bill, 2020, piloted by members of the ruling BJP, which unsuccessfully attempted to pass a similar bill a decade ago. Amidst resistance by opposition members of the legislative assembly and farmers organizations, the controversial bill was railroaded through the assembly without much debate, discussion or any attempts to build a consensus.

In Karnataka, Police, Even Vets, Can Now Seize Cattle, Premises

The most controversial provision of Karnataka’s new bill is section 8, which provides wide powers of search and seizure.

Section 8 grants any police officer not below the rank of sub-inspector, and designated competent authority (in section 3, for instance, a veterinary officer) the power to seize “any cattle, premises or materials” when they have a reason to believe that an offence under an act has been committed.

The section also imposes a mandatory duty (evidenced by the use of “shall”) on a person occupying any premises where slaughter is alleged to have taken place or “likely” to take place, to answer any questions put to the accused. This clearly abridges the constitutional protection against self-incrimination in Article 20(3) and section 25 of the Indian Evidence Act, 1872.

Further, after the sub divisional magistrate is satisfied from the seizure report that an offence was committed or intended to be committed, the release of the seized properties “excluding the cattle” can be secured subject to production of an appropriate bank guarantee.

Even as the final order for confiscation and subsequent auction is supposed to be made after the trial, where the accused can have her say, the cattle, once seized and confiscated, have to be “handed over” not to the accused but to a gau shala.

Draconian Cow Laws In Other States

Yet the bill is not novel by any measure, in either Karnataka or India.

In some ways, the Karnataka ordinance is less repressive and draconian than the Gujarat Animal Preservation Law (amended in 2011 and 2017), Haryana Gauvansh Sanrakshan and Gausamvardhan Act, 2015 (proposed to be amended in 2019) and the Maharashtra Cattle Slaughter law (amended in 2015).

Unlike laws in a few other states, Karnataka’s law does not contain an explicit provision where the ‘intention to slaughter’ is presumed unless proven otherwise. It also does not include possession or consumption of beef in the list of offences even though it bans cow slaughter and inter- and intra-state trade.

The UP Cabinet Cow Slaughter (Prevention) Ordinance, 2020 promulgated by Governor Anandiben Patel in 2020 includes a novel provision under section 5 (3), which directs publication of “the names and the photograph of the accused persons at some prominent place in locality where the accused ordinarily resides or to a public place, if he conceals himself from the law enforcement officers”.

This is similar to the actions of the UP police against Citizenship Amendment Act, 2019 (CAA) protestors on the flimsy pretext of seeking damages for loss to public property. The Allahabad HC had adjudged these hoardings to be "unwarranted interference in privacy of people".

After attempts to pass this bill through the opposition-dominated legislative council were thwarted by the chairman belonging to the Congress party, the state government took the constitutionally suspect and the exceptional-emergency-procedure route of recommending the promulgation of the ordinance under Article 213 of the Constitution. The ordinance was promulgated on 5 January 2021.

Section 5 of the ordinance prohibits the transport of cattle unless it is in a manner prescribed by the government for bona-fide agricultural or animal husbandry purpose. Ali maintains that he had the required trade permit from the Regulated Marketing Committee Yard and the certificate issued by a veterinarian in Ranebennur which confirmed that the transport was for agricultural purposes.

However, with the aid of section 13 of the ordinance, which deems all offences under the ordinance to be cognisable, meaning a police officer can file an FIR and arrest the accused without warrant, the police filed a suo moto case and arrested him without any magisterial order.

Empowering Vigilantes

The case against Ali is not that of cow or cattle slaughter but that of mere suspicion of alleged illegality of the intra-state transport. Don’t forget that Ali endured serious injuries and fractures due to the mob attack and even had to undergo a surgery that incapacitates him from working for the next 7-8 months.

In this backdrop, it is worth noting that the mob that attacked Ali could potentially benefit from the immunity granted under section 17 of the ordinance, which precludes the possibility of any prosecution or legal proceeding against anyone who acts under the anti-cattle slaughter law in good faith.

The law does not define the scope of good faith and leaves it open to vague interpretations. Even though the law enforcement machinery in Karnataka and elsewhere has de facto aided and protected mob lynchers engaging in hate crime in context of cattle transport, this legal immunity grants impunity to vigilante acts that occur mostly during the transportation of cattle, based on rumours about cattle slaughter.

This brings into question the Karnataka Animal Husbandry Minister’s defence of these provisions on the ground that cow-protection groups were “at risk”. The continued de facto and de jure State protection and promotion of cow vigilante groups raises the need for heightened judicial scrutiny of this ‘good faith’ provision, and highlights the need for the Supreme Court to go beyond its observations in Tehseen Poonawala v Union of India and Ors where it refused to go into the question of constitutionality of similar provisions in other state cattle slaughter laws.

A compilation of the cattle slaughter laws prepared by Prof Rashmi Venkatesan (NLSIU) and Radhika Goyal shows that such good-faith provisions exist in 10 state legislations.

However, in Tehseen Poonawala, the SC had issued comprehensive guidelines for state governments mandating various legislative, procedural and preventive measures against cow lynching.

It had emphatically noted that, “When the vigilantes involve themselves in lynching or any kind of brutality, they, in fact, put the requisite accountability of a citizen to law on the ventilator. That cannot be countenanced.”

“Such core groups cannot be allowed to act as they please… [I]t has to be clearly understood that self-styled vigilantes have no role in that sphere. Their only right is to inform the crime, if any, to the law enforcing agency…,” the court added. “In the scheme of things, the external forces cannot assume the role of protectors and once they pave the said path, they associate themselves with criminality and bring themselves in the category of criminals.”

Constitutional Compromise Used For Cow Laws

In light of the widespread farmer discontent against these excessive restrictions, and the mounting evidence around the fall in cattle numbers and quality in BJP-ruled states that stringently forbid cattle slaughter, trade and transport, the foundational premise of these prohibitions needs to be interrogated.

It is often remarked that on account of its inclusion in Part IV of the Constitution, prohibition of cattle slaughter is a constitutional duty that every government is bound to fulfil.

The statement of objects and reasons of the Karnataka Bill also emphasises the constitutional mandate to organize agriculture and animal husbandry while trying to justify stringent penalties under the ‘comprehensive’ new legislation that repealed the relatively flexible 1964 law.

In this context, it bears repetition that Article 48 of the Constitution highlighted an attempt at ideological accommodation of the emboldened Hindu Right. As constitutional scholar Dr Abhinav Chandrachud has demonstrated in his book Republic of Religion (2019), the nominally secular wording of the provision masked the compromise of liberal constitutionalists, such as Dr Bhim Rao Ambedkar and Jawaharlal Nehru, to Hindu sentiments against cow slaughter.

Chandrachud had further shown how Nehru insisted that justification for “such a [cattle slaughter] ban be imposed by a state government (and not the Union Government)...should be on ‘rational’ economic grounds, not on grounds of wounded religious sensibility”.

This overt emphasis on secular grounds of “animal husbandry and “agricultural society” continued into jurisprudence, when laws were challenged by individuals and organizations engaged in the meat trade, on the ground that it violated their right to profession under Article 19 (1) (g). Broadly speaking, the Court has taken a permissive approach towards restrictions imposed under the cattle-slaughter laws.

However, there are some notable exceptions.

Judicial Arguments Protecting Farmer Interests

Arguments on freedom of religion have had a similar fate but for not-so-secular reasons, such as the judicial finding that cow slaughter is not an “essential” part of Islam. In Mohd Hanif Qureshi (1958) the court rejected the claims of fundamental- rights violation and found the prohibition to be in public interest because India was a predominantly agrarian economy.

The five-judge bench of the Supreme Court, “nevertheless . . . [has taken] into consideration’ the Hindu reverence towards cows ‘as one of many elements” in deciding whether the law(s) were constitutionally valid.

Effectively, the Court held that these restrictions of fundamental rights were reasonable as they served the “public interest” since cattle were essential to the agricultural economy. It did not scrutinize the ‘means’ to achieve the objectives under Article 48.

This dominant analysis fails to acknowledge that there are other animals useful to the agricultural economy and do not have the special protection offered to cows and buffaloes. Thus, the question that “but for” the religious sentiments attached to the cow, what distinguishes it from camel with regard to agricultural utility, has not been answered.

However, another five-judge bench, in 1961, in Abdul Hakim Quarishi held that the ban on the slaughter of bulls, bullocks and she-buffaloes below the age of 20 or 25 years was not a reasonable restriction in the interest of the general public and was void as they seized to be useful after 15 (increased to 16 years) of age, and whatever little use it may then have was greatly offset by the economic disadvantages of feeding and maintaining unserviceable cattle.

The Court also held that the additional condition that the animal must, apart from being above 20 or 25 years of age, be unfit was a further unreasonable restriction. Thus, the relevant provisions in the Bihar, UP and MP Acts were declared invalid.

The Court observed that “the sentiments of a section of the people may be hurt by permitting slaughter of bulls and bullocks in premises maintained by a local authority. But a prohibition imposed on the exercise of a fundamental right to carry on an occupation, trade or business will not be regarded as reasonable, if it is imposed not in the interest of the general public, but merely to respect the susceptibilities and sentiments of a section of the people whose way of life, belief or thought is not the same as that of the claimant”.

This jurisprudence was altered by the Supreme Court’s seven-judge bench in 2005, in Mirzapur Moti Kureshi, which considered religious sentiment as a factor. Apart from barring the slaughter of cows and calves, the government of Gujarat had enacted a total ban on the slaughter of bulls and bullocks regardless of whether these animals were useful or not. The Court validated this law on the ground that these cattle were entitled to care in their old age and could not be sold or abandoned.

Criminalisation Of Cow Trade And Declining Economic Freedom

The expansive criminalisation of cattle trade and transport “for the purposes of slaughter” in recent years raises concerns about declining economic and human freedoms, which are constitutionally crystallised in the fundamental liberties of movement, trade, profession and other autonomously decided activities.

Thus, the law not only criminalises ‘slaughter primarily covering slaughterhouses, traders and butchers directly involved in slaughtering animals’, it also ‘criminalises transport of cattle and/or beef, sale and possession of beef potentially exposes anybody directly or indirectly involved with cattle or beef – farmers, consumers, transporters, hoteliers, workers in meat or leather trade, etc – to the risk of both legal prosecution and vigilante attacks’.

Section 8 of this ordinance is inconsistent with Article 14, 19 and 21 of the Constitution, in light of the K.S. Puttaswamy decision as well the drafting history of Article 21 (Draft Article 14). While the Court had characterised privacy as the constitutional firewall for decisional autonomy of citizens (including in matters of food choice) against unreasonable state interference, the Court held that this protection was inherent in Part III of the Constitution.

The Court also noted that ‘the fact that some of the Members opined during the course of debates in [the Constituent] Assembly, that the right to privacy need not find an express mention in the Constitution, would not necessarily lead to the conclusion that they were oblivious to the importance of the right to privacy. Constituent Assembly was not a seminar on the right to privacy and its amplitude. A close scrutiny of the debates reveals that the Assembly only considered whether there should be an express provision guaranteeing the right to privacy in the limited context of “searches” and “secrecy of correspondence”.

The constitutional debate about the inclusion of protection against searches and seizures by the State without reasonably following the due process of law is particularly insightful. This was informed by the experiences of the framers with the repressive and authoritarian colonial regime that utilized the legal machinery to police free expression, personal lives and individual dissent.

The Constitutional Debates Over Searches, Seizures

As Granville Austin discusses in his book The Indian Constitution, the advisory committee on fundamental rights in late April 1947 had decided to disregard Ambedkar’s, KM Munshi’s and the Fundamental Rights Sub Committee’s proposals from March-April 1947 to include protection of persons and their houses from unreasonable searches and seizures and from searches without legal warrant in the fundamental rights chapter.

Opponents (such as Alladi Krishnaswamy Ayyar, Govind Ballabh Pant, B. N. Rau, C. Rajgopalachari, and Vallabhai Patel) said that “secrecy of correspondence might aid spies and criminals, and it would impair the working of the Indian Evidence Act.

They said the protection was available under the Code of Criminal Procedure, 1972 (CrPC) and any apprehensions of overreach by the colonial government could not be sustained against a government led by statesmen like Nehru and Patel. They considered these protections to be unnecessary, cumbersome and dangerous.

This ultimately ensured that all amendments that sought an express and explicit prohibition of unreasonable exercise of State power though searches and seizures were rejected. This was despite the fact that the proposed amendment for restricting unreasonable and intrusive State actions had significant support of the House.

The amendment was even accepted by the chairman of the drafting committee, Ambedkar, who agreed that while the statutory provisions of the CrPC protected citizens from unreasonable exercise of police power, the constitutional declaration of this prohibition was in fact desirable and it should not be left to the legislatures.

Upon the counting of votes in its favour, it was considered to have been passed in the House by the presiding officer, Vice President H C Mookherjee, and was only deferred for reconsideration due to Nehru’s appeal.

When it was reconsidered three days later, the Congress Party had to issue a whip to ensure that it did not pass. Before the final reading and passing of the Constitution, in the final and unsuccessful constitutional attempt, on 15 September 1949, to safeguard the citizens of India from unreasonable state interference, Pandit Thakur Das Bhargava raised the issue and implored Ambedkar to consider inserting these protections:

“When houses are searched, it is not the search which [criminal lawyers] object to, but property is sometimes planted and then searches are made in the presence of witnesses who are procured by the police. The House must remember that at least in 50 per cent. of the criminal cases brought before the courts the accused are either discharged or acquitted. The House can see what amount of corruption, what amount of embarrassment and harassment is being caused to the public, on account of this corrupt and incompetent police.”

Judicial Pronouncements Over Search, Seizure

The constitutional debates over search and seizure are echoed in court cases revolving around cattle-slaughter laws with such provisions.

Under the previous Karnataka law, the Karnataka High Court, in 2018, had granted relief against an unreasonable seizure in the Barafwala Cold Storage & Agro Processor’s case. While this order was reversed by the Supreme Court in appeal, the High Court’s observations in this matter are instructive.

While showing that the provisions of the cattle-slaughter law were not applicable in a case of allegedly improper procurement by the meat dealer, the Karnataka High Court held that “it appears that merely because the complainant (an activist animal welfare official) in his complaint had requested the respondent-police to register his complaint for those alleged offences, the respondent-police without ascertaining as to whether the allegations made in the complaint would attract those offences, have blindly registered the complaint for those alleged offences”.

The Court also criticised the police for trying to defend “the alleged search and seizure of the business premises” on the false premise of the investigation for the alleged offences under sections 420 (fraud) and 429 of Indian Penal Code (killing animals), without any facts pointing to these offences.

In 2016, the Gujarat High Court considered an appeal in Tarachand Naththuram Badgujar’s case against a subordinate court order rejecting the release of the vehicle (and not the animal) that was “allegedly” used for transporting “beef/beef product” even as live cattle were seized.

The Court overturned the decision of the subordinate court, which had refused to release the vehicle as Gujarat’s 2011 law (section 6B) disallowed release of vehicle or cattle on surety “before the expiry of six months from the date of such seizure or till the final judgment of the court, whichever is earlier”. The Court noted that what was seized and later on released was the live animal stock and not beef.

Such livestock could indeed be slaughtered, but neither beef nor beef products were seized. The Court also stressed on the need for judicial oversight and interference as intent to slaughter was yet to be judicially determined.

A different approach was taken with regard to the release of cattle by the Madhya Pradesh High Court in Saleem Sheikh’s case. In a 9 September 2019 order, the Court refused to release buffaloes “seized” on 3 April 2019. “Even if presumed that the applicant deals in sale and purchase of cattle, in this particular instance,” the Court said, “it appears that the cattle seized were meant for slaughtering because the animals were stuffed in a pitiable condition in the vehicle.”

The Court betrayed its distrust of the applicant whose “real purpose may have been to slaughter” and handed over the cattle to the “objector”, the Jain Gaushala Samiti, Neemuch.

It is in this context that the existential concerns of cattle traders, meat sellers and farmers of Karnataka need to be understood.

While the new cow law has placed intra-state and inter-state cattle traders at the risk of losing their livelihood, despite compliance with the rules made under the 1964 law, it will make agriculture and animal husbandry more unremunerative, unviable and risks widespread abandonment of cattle.

The new ordinance will severely impact the state’s marginalised agricultural, pastoral and other communities. It can only be hoped that as the Karnataka High Court constitutionally reviews this ordinance in the coming days, it fulfills its role as the protector of fundamental rights and constitutional values.

(Prannv Dhawan is reading law at the National Law School of India University, Bengaluru.)